1 fa216.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.216 OF 1993 The State of Maharashtra through the Collector Sangli District ...Appellant vs. 1 Dashrath Vithoba Suryavanshi 2 Gourabai Dashrath Suryavanshi 3 Vithal Dashrath Suryavanshi 4 Baburao Dashrath Suryavanshi 5 Dinkar Baburao Tambade (since deceased through legal heirs) 5A Chaya Dinkar Tambade 5B Bharati Dinkar Tambade 5C Sunita Nivrutti Jadhav 5D Rukmini Dinkar Tambade 6 The Manager, New India Assurance Co.Ltd. 7 Jingoda N. Patil ...Respondents Mr.A.R.Patil,A.G.P for the appellant None for the respondents CORAM :A.S.OKA,J. DATE :DECEMBER 20,2010 ORAL JUDGMENT : 1 Heard the learned A.G.P for the appellant. The appellant-State of Maharashtra has taken an exception to the Judgment and Order dated 16th May 1990 passed by the learned Commissioner for Workmen s Compensation. A claim petition was filed by the legal representatives of the deceased Vithoba under the Workmen s Compensation Act, 1923 (hereinafter referred to as the said Act). 2 It is the case of the original claimants that the deceased was employed under the employment guarantee 2 fa216.sxw scheme of the State Government. The accident occurred on 8th June 1987. The deceased along with the four to five workers were traveling by a truck owned by one Dinkar and they were proceedings towards the site where the work of road repairing under the employment guarantee scheme was in progress. It is alleged that as the truck was rashly driven, the deceased was thrown out of the truck and suffered injuries. He succumbed to injuries. According to the case of the claimants, the deceased was being paid daily wages of Rs.10/- per day and 1 kg. Of jawar of Rs. 3.50 and 1 kilo wheat of Rs.3.50. Thus, a contention was raised that the deceased was getting net salary of Rs. 17/- per day and monthly emoluments of Rs.510.00. 3 The owner of the truck opposed the claim petition and contended that the truck was validly insured on the date of the accident. The main contention of the appellant appears to be that on the date on which the accident occurred, no work was available under the employment guarantee scheme and the work was specifically kept closed. The contention is that the deceased was not authorised to travel by the truck. The appellant disputed the income of the deceased as claimed by the legal representatives of the deceased. 4 The learned Commissioner accepted the case of the claimants and by taking daily earnings at Rs.17/-, he proceeded to grant compensation of Rs.45,159/- with penalty and interest. 5 The learned A.G.P for the appellant submitted that on the date of the accident, the deceased was not on duty as the evidence has been adduced to show that the work was kept closed. He submitted that there was no evidence to show the income of the deceased was at the 3 fa216.sxw rate of Rs.17/- per day and in fact the witness Deputy Engineer Shri A.B.Mankapure who was examined before the Commissioner stated that the remuneration of the deceased was Rs.8.10 per day. 6 I have carefully considered the submissions. I have perused the record and notes of evidence. It is not in dispute that the deceased was working on the employment guarantee scheme of the appellant. The contention of the appellant is that the work at the site was kept closed on that day as the road rollers were under repairs. The owner of the truck by which the deceased was traveling was examined by the claimants. He stated that the truck was being used by the contractor Mr.Salunkhe who was the contractor under the employment guarantee scheme. He stated that the truck was carrying coolies including the deceased. The Deputy Engineer examined by the appellant stated that on the relevant date, the work was kept closed as the road roller and tanker of the contractor were not under working condition. However, he admitted that no notice was published on that day informing that the work was closed. Moreover, the truck by which the deceased was traveling was admittedly hired by the contractor who was implementing the employment guarantee scheme. 7 Considering the evidence on record, the learned Commissioner has disbelieved the version of the Deputy Engineer. It is not possible to interfere with the said finding of fact. Mere production of muster will not help the appellant as it was not independently proved that the work was closed on that date. Though the witness examined by the appellant has come out with a case that the deceased was getting Rs.8.10 per day, no record was produced to substantiate the said case. Therefore, the 4 fa216.sxw learned Commissioner accepted the case made out that the deceased was getting net income of Rs.17/- per day. 8 The appeal under section 30 of the said Act is maintainable on the substantial question of law. In view of finding of fact recorded by the learned Commissioner, no substantial question of law arises. Accordingly, appeal is dismissed with no order as to costs. 9 Civil application no.2816 of 1993 does not survive and the same is disposed of. JUDGE