THE HON’BLE SRI JUSTICE R.KANTHA RAO. Dated this the 14th day of December 2009. C.M.A.No. 3022 of 1998. Between: Shaik Aktar …….Appellant vs. Shaik Habibulla and another. ……..Respondents. THE HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.No. 3022 of 1998. JUDGEMENT: This appeal is filed by the applicant in W.C.No. 107 of 1995 on the file of the Commissioner for Workmen’s Compensation and Asst. Commissioner of Labour II, Guntur against the order dt. 25.7.1998 dismissing the above W.C. The appellant is the wife of the deceased Shaik Ravoof who was said to be a workman employed by the 1st respondent as a cleaner on his lorry bearing No. ADF 7899. Alleging that the said Shaik Ravoof died while in the course of employment as a cleaner with the 1st respondent, the appellant filed a claim petition before the learned Commissioner. The learned Commissioner dismissed the claim of the appellant on the ground that it was mentioned in the certified copy of FIR Ex:A.1 that the deceased sustained injuries by falling from a rickshaw and consequent on the injuries received, he died, which, according to the learned Commissioner, is contrary to the version of the appellant that the deceased received injuries by falling from the lorry bearing No. ADF 7899 while he was tying the ropes to the Tarpaulin at Rourkela in Orissa State. The appellant challenges the finding of the learned Commissioner in the present appeal. I have heard the learned Counsel for the appellant. None appears for the respondents. It is contended by the learned Counsel for the appellant that the finding recorded by the learned Commissioner that it was mentioned in the FIR Ex:A.1 that the deceased received injuries as he fell down from a rickshaw is incorrect and it is not so mentioned in the FIR. I have perused the certified copy of the FIR Ex:A.1 and the inquest report Ex:A.2. In both these documents, it is clearly mentioned that the deceased died in the course of employment as a cleaner on the lorry bearing No. ADF 7899 belonging to the 1st respondent, as contended by the learned Counsel for the appellant. It is mentioned by the hospital authorities that they were informed while admitting the deceased that he fell down from a rickshaw and received injuries and they incorporated the said fact in the intimation sent to the police and the said fact thus found place in the FIR. The learned Commissioner erroneously recorded a finding that the deceased received injuries by falling from a rickshaw, without taking into consideration the contents of Exs:A.1 and A.2. Therefore the finding recorded by the learned Commissioner is factually erroneous which is liable to be set-aside in this appeal and accordingly the same is set aside. The next point for consideration is whether the appellant is entitled for any compensation and if so to what amount. Pw.1 who is the wife of the deceased stated before the learned Commissioner that her husband told her that on 5.10.1993 he was tying the ropes to the Tarpaulin on the loaded lorry bearing No. ADE 7899 at Rourkela in Orissa State and fell down from the said lorry and sustained injuries and that her husband was on the duty entrusted by the 1st respondent, who is the owner of the said lorry on the date of mishap and that he was brought to Guntur and was admitted in Government general hospital. Pw.1 further stated before the Commissioner that he died on 20.10.1993 on account of the injuries received by him, while undergoing treatment. What all stated by her husband to Pw.1 is nothing but the circumstances which resulted the death of her husband and thus the evidence of Pw.1 on this aspect is admissible and it can relied on. With regard to the employment of the deceased as a cleaner on the lorry of the 1st respondent, there is the evidence of Pw.1. The 1st respondent remained ex parte before the learned Commissioner. The 2nd respondent-insurance company did not take any steps to examine the 1st respondent, the owner of the vehicle to disprove the version of Pw.1. In the absence of any contra evidence let in by the 2nd respondent, I hold that the deceased died on account of the injuries sustained by him at Rourkela in Orissa State during the course of his employment with the 1st respondent. As regards the quantum of compensation, as per the evidence of Pw.1 and also from Ex:A.3, the certified copy of post-mortem report, the age of the deceased was 35 years as on the date of his death and his salary as a cleaner at the relevant point of time can be taken as Rs. 1000/- per month, even though there is no documentary proof on this aspect. The compensation has to be calculated as per Section 4 of the Workmen Compensation Act as follows: The age factor, which is mentioned in II Schedule corresponding to the age of the deceased, is 197.06. The age factor has to be capitalized with 50% of the wages of the deceased i.e. Rs. 500 X 197.06 which comes to Rs. 98,530/-. Therefore, the appellant is entitled to a compensation of Rs. 98,530/- on account of the death of the deceased Shaik Ravoof during the course of his employment on the lorry bearing No. ADF 7899 of the 1st respondent. The amount of compensation carries the interest at the rate of 6% p.a. from the date of application till payment. The 1st respondent insurance company shall deposit the compensation together with interest within a month from the date of receipt of a copy of this judgment. In the result, the appeal is allowed. No order as to costs. _______________________ R.KANTHA RAO,J 14.12.2009. Krb. THE HON’BLE SRI JUSTICE R.KANTHA RAO. C.M.A.No. 3022 of 1998. Dt. 14.12.2009.