IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 600 of 2006 United India Insurance Company Ltd. … Appellant Vs Hemant Singh & another … Respondents Sri D.S. Patni, learned counsel for the appellant Sri M.S. Bisht, learned counsel for the respondents Hon’ble B.C. Kandpal, J. This appeal under Section 30 of the Workmen Compensation Act, 1923 has been filed by the appellant against the judgment and order dated 10.08.2006 passed by the Workmen Compensation Commissioner/Assistant Labour Commissioner, Haldwani, District Nainital in Workmen Claim Case No. 60 of 2004 whereby the learned commissioner awarded a sum of Rs. 82,750/- (including interest @ 8% per annum) to the claimant. 2. Brief facts of the case are that Sri Hemant Shah was engaged as driver in Tata Sumo No. UP02D/6065 by Sri Bharat Singh Ghapola. On 09.01.2003, the driver of the said Tata Sumo along with the passengers going from Nainital to Rudrapur. When the said vehicle reached near Sushila Tiwari Hospital, Haldwani, the tyre of the same got punctured. The driver – Hemant Shah put the jack on the rear of the car, suddenly, the jack dislocate from its position and hit at the right eye of the driver. He was admitted in the Soban Singh Jeena, Base Hospital and thereafter he was referred to other hospital for better treatment. At the time of the accident, he was 32 years of age and used to earn Rs. 2 2,500/- per month. Therefore, the injured completely lost his right eye and filed the claim to the tune of Rs. 3,25,000/- as compensation. 3. The notices were issued to the opposite parties. The employer as well as the Insurance Company contested the petition by filing their separate written statement before the learned Commissioner. After hearing learned counsel for the parties and perusing the entire material available before it, the learned Commissioner decreed the claim to the tune of Rs. 82,750/- as compensation to the claimant vide judgment and order dated 10.08.2006. 4. Feeling aggrieved by the aforesaid judgment and order, the appellant preferred this appeal before this Court. 5. Heard Sri D.S. Patni, learned counsel for the appellant, Sri M.S. Bisht holding brief of Sri Gopal Narayan, learned counsel for the respondent/claimant and perused the record. 6. Learned counsel for the appellant has invited my attention towards the fact that the claimant himself has pleaded the salary as Rs. 2,500/- per month in claim petition and there is no other evidence available on record, which may suggest that the salary of the claimant was having salary more than Rs. 2,500/- per month. Even then, the learned Workmen Compensation Commissioner has calculated the amount of compensation on the basis of the basic salary @ Rs. 2,827/- per month. 3 7. The record reveals that the claimant in the application filed by him for the compensation has categorically stated that the owner of the vehicle used to pay him Rs. 2,500/- per month. He has also stated the same thing in his deposition before the Workmen Compensation Commissioner. 8. Neither the owner has adduced any evidence that the salary of the claimant was much more than he pleaded in the claim petition nor the Insurance Company has pleaded anywhere that the claimant had been drawing the salary much more than he pleaded in the claim petition. In the absence of any evidence, the finding recorded by the Workmen Commissioner observing in the judgment and order that the claimant had been drawing a sum of Rs. 2,827/- per month as salary is against the weight of the evidence on record. 9. No other point has been raised by learned counsel for the appellant. 10. The Workmen Compensation Commissioner, in view of the material available on record should have calculated the amount of compensation on the basis of the salary drawn or claimed @ Rs. 2,500/- per month. 11. The disability of the claimant as has been recorded by the Workmen Compensation Commissioner, is 20% and the finding is not liable to be disturbed. The age of the claimant at the time of the accident was 32 years and after adopting the factor of 203.85 at the age of claimant i.e. 4 32 years, the amount of compensation comes to Rs. 50,962.50 (1250 X 203.85 X 20/100) along with interest indicated in the impugned judgment and award. 12. Accordingly, the finding recorded by the Workmen Compensation Commissioner with regard to the total amount of compensation on the basis of the salary drawn by the claimant @ Rs. 2,827/- is set aside and instead of that salary, the amount of compensation on salary Rs. 2,827/- the amount of compensation is calculated on the basis of the salary drawn by the claimant @ Rs. 2,500/- per month. 13. With the aforesaid observations, the appeal is partly allowed. The claimant is entitled to get a sum of Rs. 50,962.50 instead of Rs. 82,750/- along with interest as has been awarded by the learned Workmen Compensation Commissioner. (B.C. Kandpal, J.) 16.06.2008 ASWAL