IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (WCA) No. 349 of 2010. Date of Decision : 06.07. 2011. New India Assurance Co. Ltd., ….Appellant. Versus. Vidya Devi and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting? No. For the appellant : Mr. B.M. Chauhan, Advocate For the respondents : Mr. G. R. Palsra, Advocate, for respondents No.1 and 2. Mr. T.S. Chauhan, Advocate, for respondent No.3. Justice Dev Darshan Sud, J. C.M. P No. 717 of 2010. For the reasons stated in the application, I am satisfied that the delay in filing this appeal is bonafide and as such the application is allowed. The delay in filing the appeal is condoned in the interest of justice. FAO (WCA) No. 349 of 2010. The Insurance Company challenges the award made by the Commissioner under the Workmen’s Compensation Act awarding a sum of Rs.6,43,685/- for the death of Duni Chand, who was employed as driver with truck No. HP-512-0371 owned by the first respondent before the Commissioner namely Anjna Devi. 2. On the evidence before the Commissioner, the award has been made considering Rs.4,000/- as salary payable to the deceased. 2 3. Three questions of law have been urged by learned counsel appearing for the appellant requiring intervention of this Court on the ground that the award is perverse and is not based on the proved facts on record. First aspect is with respect to the salary of the deceased. Learned counsel appearing for the insurance company submits that the evidence of RW2 Shri Suresh, who is power of attorney holder of the owner of the truck has stated in evidence that the deceased was being paid monthly wage of Rs.3500/- as salary. He submits that this evidence has remained unrebutted and the commissioner has committed a grave error on the basis of record by taking his wage to be Rs.4,000/-. 4. I have gone through evidence as also the statement of RW2. I do not find any question of law requiring intervention of this Court. Firstly, RW2 , the power of attorney does not state that he is in-charge of the business and also does not justify the wage payable by production of some record. In the nature of evidence, it was natural that some kind of record should have maintained by this person or owner to substantiate the claim and plea that the monthly wage of the deceased was Rs.3500/-. The commissioner considered the salary of deceased for Rs.4,000/- which was being sent by him for the assistance and maintenance of the family. In Arun Kumar Agarwal and another versus National Insurance Company Limited and Others, (2010) 9 SCC 218, the Supreme Court has held that in case of house wife, her monthly contribution to the house hold would not be less than 5000/- per month. Surely, the deceased who was driver would be earning more than that. This question does not arise for determination in this appeal. 5. On the second aspect of award of interest the learned counsel appearing for the Insurance Company submits that it could 3 not /should not be awarded. I find that this question does not require determination as it is now well settled in the decision of this Court in Sita Ram versus Satvinder Singh and another, Latest HLJ 2008 (HP) 1110 which takes into consideration the law laid down by Supreme Court in National Insurance Co. Ltd. Versus Mubsir Ahmed and another, 2007 ACJ 845. 6. On the third aspect of penalty, learned counsel appearing for the appellant submits that this levy is against the mandate of the statue. Learned counsel places reliance upon the decision of this Court in New India Assurance Company Ltd. versus Gurdas Ram (dead through LRs) & Ors, Latest HLJ 2010 ( HP) 1196. This submission requires to be accepted in view of the decision of this Court. This appeal is accordingly allowed to the extent that the penalty of 50% imposed by the Commissioner is against the provisions of law as held by this Court. 7. The appeal is disposed of accordingly with no order as to the costs. (Dev Darshan Sud), 6th July, 2011. Judge. (jai)