1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.783 OF 2009 Chandulal S/o Asaram Patil Age : 40 years, Occ : Nil, R/o Dalwel, Tq. Parola, Dist. Jalgaon. APPELLANT VERSUS 1. Pravin Rangrao Patil Age : Adult, Occ : Transport Business, R/o Fagane, Tq. & Dist. Dhule. 2. The Oriental Insurance Company Ltd., Dhule (Notice may be served on The Manager) The Oriental Insurance Company Ltd., Lane No.5, Near Municipal Girls School, Dhule. RESPONDENTS ------------------------------------------------------------------------------------------------------- Shri. Shrikant S. Patil, the Advocate for the appellant. ------------------------------------------------------------------------------------------------------ (CORAM : R. K. DESHPANDE, J.) DATE : 14th September, 2009. ----------------------------------------------- ORAL JUDGMENT : This is an appeal preferred by the original claimant who filed application under section 4 r/w Schedule IV of the Workmen’s 2 Compensation Act, 1923 before the Commissioner, Workmen’s Compensation, Dhule which was registered as Application (WCA) No. 86/2007. The said Claim Petition has been decided by the learned Commissioner, Workmen’s Compensation and Judge, Labour Court, Dhule vide judgment and award dated 07.02.2009 holding the Respondent Nos.1 and 2 herein jointly and severally liable to deposit with Commissioner remaining amount of Rs.2,59,340/- and interest at the rate of 10% p.a. on the awarded amount of compensation of Rs.2,84,340/- from the date of filing of the application i.e. 27.09.2007 till its realisation. The learned Commissioner has held that, the appellant was in employment with the respondent no.1 as a driver on the Goods Truck no.MH-18/M-5891 and met with an accident on 23.01.2007, sustained permanent disability and loss of 100% earning capacity, arising out of and during the course of employment with the respondent no.1. 2. The notice for final disposal of this Appeal at the stage of admission was issued by this Court on 30.04.2009 and the Record and Proceedings of the Commissioner, Workmen’s Compensation were also called. Although, the respondents were served in the matter, none appears for them. Admit. The matter is thus taken up for final disposal at the stage of admission as per the order dated 30.04.2009. 3 3. Heard Shri. S.S. Patil, the learned Counsel appearing for the appellant who urged that, the appellant has led his own evidence at Exhibit-06 and has produced the certificate dated 1st September, 2007 at Exhibit-U-28. In support of his claim that the appellant was earning monthly salary of Rs.4,000/-, the learned Counsel urged that, there is no reason for the learned Commissioner to determine the monthly income of the appellant of Rs.2,500/- and according to him the Commissioner ought to have accepted the evidence produced by the appellant showing that, his monthly income was of Rs.4,000/-. The learned Counsel for the appellant therefore claimed enhancement of compensation by determining the monthly salary of appellant at Rs.4,000/- for payment of compensation. The substantial question of law urged is whether, the appellant discharged the burden to establish his claim for monthly salary of Rs.4,000/- ? 4. Although the notices are served on the respondents, none appears in this First Appeal. The learned Commissioner in its order in paragraph no.19 has recorded the findings that, the respondent Nos.1 and 2 have not adduced any oral as well as documentary evidence in support of their case. The learned Counsel for the appellant further informs that, the appellant has not received any notice of Appeal if at all preferred by any of the respondents. With the assistance of the learned Counsel, I have gone through the evidence of claimants and also perused the certificate Exhibit- 4 U-29 issued by the Respondent No.1-employer. The evidence on record clearly shows that, the appellant was drawing the salary of Rs.4,000/- per month. The learned Commissioner has also recorded the findings that, the opponent no.1 has cross examined the appellant on the aspect of monthly salary of Rs.4,000/- and suggestion given to the appellant that, he was getting salary of Rs.2,500/- per month, was denied. Surprisingly, the learned Commissioner has recorded the findings that, since the opponent no.1 admitted that, he was paying salary of Rs.2,500/- per month to the appellant, no reliance can be placed on the salary certificate at Exhibit- U-28. This findings according to me was unwarranted. Once the certificate at Exhibit-U-28 is proved and no evidence is led by the employer although he participated in the proceedings, to dislodge this evidence, it has to be held that, the appellant was drawing monthly salary of Rs.4,000/-. The appellant has thus discharged the burden to establish his claim for monthly salary of Rs.4,000/-. Even otherwise, the Commissioner has taken into consideration the aspect that, the appellant was driving the commercial vehicle i.e. Tata LP 2515 which was of 10 wheelers heavy vehicle and which was heavily loaded. The Commissioner therefore could not have arrive at figure of Rs.2,500/- per month for which there was no basis. 5. In view of above, the instant appeal is allowed and the judgment and award dated 07.02.2009 passed by the Commissioner, 5 Workmen Compensation in Application (WCA) No.86/2007 is quashed and set aside to the extent it rejects the claim of the appellant for monthly salary of Rs.4,000/-. The Claim of the appellant for enhancement of compensation is thus allowed. In the terms of section 4(1)(b) of the Workmen’s Compensation Act, the compensation payable to the appellant is determined at Rs.4,54,954/- payable with interest at the rate of 10% p.a. from the date of application i.e. 27.09.2007 till its realisation. The Appeal is thus allowed with costs. (R.K. DESHPANDE) JUDGE GAS/fa783.09