IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 227 of 2008 The New India Assurance Company Ltd. … Appellant Vs Smt. Jamuna Devi & others … Respondents Sri P.C. Maulekhi, learned counsel for the appellant Sri Pankaj Purohit, learned counsel for the respondent Nos. 1 to 4 Sri Jitendra Chaudhary, learned counsel for the respondent No. 5 Hon’ble B.C. Kandpal, J. (Oral) This appeal under Section 30 of the Workmen’s Compensation Act, 1923 has been filed by the appellant/Insurance Company against the judgment and award dated 20.02.2008 passed by learned Workmen’s Compensation Commissioner, Chamoli, in W.C.A. No. 13 of 2005-06, Smt. Jamuna Devi & others Vs Harpal Singh & another. 2. Brief facts of the case are that the deceased – Davendra Singh was engaged as a cleaner in Truck No. UA07L/1254 under the employment of Harpal Singh. On 10.01.2006, the said truck met with an accident at Chatuapipal, in which Davendra Singh died. The claimant filed an application on 15.02.2006 before the learned Workmen Compensation Commissioner alleging therein that the deceased was 35 years of age and used to earn Rs. 5,000/- per month as salary from respondent No. 1 – Harpal Singh. The claimants are the dependents upon the deceased. Therefore, they have filed an application before the Workmen Compensation Commissioner for a sum of Rs. 8,00,000/- as compensation in lieu of the death of Davendra Singh. 2 3. Thereafter, notices were served upon the opposite parties. The opposite parties contested the petitions by filing their separate written statements before the learned Workmen Compensation Commissioner. The learned Workmen Compensation Commissioner, after having considered the entire material available on record and hearing learned counsel for the parties awarded a sum of Rs. 2,91,960/- along with interest @ 9% per annum vide judgment and award dated 20.02.2008. 4. Feeling aggrieved by the aforesaid judgment and award the New India Assurance Company Ltd. has preferred this appeal. 5. Heard Sri P.C. Maulekhi, learned counsel for the appellant, Sri Pankaj Purohit, learned counsel for the respondent Nos. 1 to 4, Sri Jitendra Chaudhary, learned counsel for the respondent No. 5, and perused the record. 6. Learned counsel for the appellant has submitted before the Court that the learned Workmen Compensation Commissioner has committed an error while calculating the income of the deceased. The learned Commissioner in order to calculate the amount considered the income of the deceased as Rs. 3,000/- per month. Therefore, the impugned judgment and award is liable to be set aside. 7. Learned counsel for the claimants has made a rival contention and has submitted before the Court that the learned Workmen considering the minimum wages of Rs. 100/- per day taken the monthly income of the deceased as Rs. 3,000/- per month and the same does not require any interference. 3 8. It is not disputed that the deceased died in the accident took place on 10.01.2006 at Chatuapipal and it is also not disputed that the deceased – Davendra Singh was travelling in truck No. UA07L/1254 as a conductor and the truck in question was driven by Harpal Singh who was having the valid and effective driving licence on the date of accident. As far as the amount of compensation to be awarded in favour of the claimants is concerned, the learned Workmen Compensation Commissioner has discussed this point while deciding issue No. 6. From the perusal of the record, it reveals that the claimants have stated in the petition that the deceased was getting Rs. 5,000/- per month as salary and the opposite party No. 1 – Harpal Singh has stated in his oral evidence that he used to pay a sum of Rs. 2,800/- per month to the deceased as salary. It is clear from the perusal of the record that the claimants have not produced any evidence before the court below relating to the monthly income of the deceased, therefore, the learned Workmen Compensation Commissioner in the absence of any cogent and reliable evidence available on record, assessed the monthly income of the deceased as Rs. 3,000/-. It is also not disputed that on the date of accident the deceased was 36 years of age, therefore, the learned Workmen Compensation Commissioner calculated the amount of compensation adopting the factor according to schedule 4(a) of the Workmen Compensation’s Act, 1923 and awarded a sum of Rs. 2,91,960/- along with interest @ 9% per annum in favour of the claimants. I do not find any calculation error in the impugned judgment and award. The amount awarded by the learned Workmen Compensation Commissioner is just and proper. 9. No other point has been pressed by learned counsel for the appellant. 4 10. I am in total agreement with the finding recorded by the learned Workmen Compensation Commissioner in this regard. I do not find any force in the present appeal. The appeal lacks merit and is liable to be dismissed. 11. Accordingly, the appeal is dismissed. No order as to costs. 12. Consequently, cross objection No. 4180 of 2008 is dismissed. (B.C. Kandpal, J.) 09.07.2009 ASWAL