IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 MFA.No. 147 of 2005() --------------------- WCC.158/2003 of W.C.C.,KOZHIKODE .................... APPELLANT(S): APPLICANTS: ------------------------- 1. UMADEVI, W/O. LATE MOHANAN @ MOHANDAS VADAKKAYIL HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE. 2. VISHNU, AGED 5 YEARS, S/O. LATE MOHANAN @ MOHANDAS, VADAKKAYIL HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE. 3. ANJALI, AGED 3 YEARS, D/O. LATE MOHANAN @ MOHANDAS, VADAKKAYIL HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE. 4. DEVAKI AMMA, W/O. KRSHNAN KUTTY, VADAKKAYIL HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE. (APPELLANTS TWO AND THREE ARE MINORS AND ARE REPRESENTED BY THEIR MOTHER, THE 1ST APPELLANT.) BY ADV. SRI.JACOB ABRAHAM RESPONDENT(S): OPPOSITE PARTIES: -------------------------------- 1. C. SUMITHLAL, S/O. BALAN, CHERADATH HOUSE, NANMINDA, P.O. BALUSSERY, KOZHIKODE DISTRICT. 2. THE NEW INDIA ASSURANCE CO.LTD., THRIPURI BUILDINGS, EAST NADAKKAVU, KOZHIKODE-673 011. ADV. SRI.P.JAYASANKAR FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. -------------------------------------------- M.F.A. No. 147 OF 2005 -------------------------------------------- Dated this the 5th day of November, 2008 JUDGMENT Ramachandran Nair,J. Appeal is filed for enhancement of compensation for the death of husband of the first appellant, who was the father of appellants 2 and 3, and son of the fourth appellant. We have heard counsel appearing for the appellants and standing counsel appearing for the second respondent. The limited dispute is about the income of the deceased which was adopted by the Workmen's Compensation Commissioner as Rs. 3,000/- per month as against the claim of Rs. 4,000/- per month. While the appellants contend that deceased's income was Rs. 4,000/- standing counsel for the insurance company submitted that there is no proof of income of the deceased and consequently Rs. 3,000/- was estimated by the Workmen's Compensation Commissioner, which is quite reasonable. He specifically pointed out that death was in 2003 2 and the prevalent income of a driver was not excess of Rs. 3,000/-. However, we are unable to accept this contention because in the claim petition itself the appellants had specific case that the deceased was getting Rs. 4,000/- per month. Even though the appellants specifically pleaded that income of the deceased was Rs. 4000/-, employer as a party to the petition neither denied nor furnished any evidence about the income of the deceased driver. Even the minimum wages for a driver in 1999 was Rs. 100/- per day and DA along with this. However, what is fixed in 2003 is only the minimum wages prevalent in 1999 including DA. Therefore the claim of the appellants that the deceased was getting Rs. 4000/- is quite realistic. We therefore see no reason to reject it, more so when the employer did not take a contrary view. Since Rs. 4000/- per months is quite reasonable wages for a driver, we allow the appeal directing the insurance company to recompute the liability under the provisions of the Act and remit differential amount with statutory interest. Appellants have a further case that they are entitled to Rs. 2500/- towards funeral expenses under Section 4(4) of the Act. The insurance company is directed to deposit 3 this amount in addition to the addl. compensation awarded. Appeal stands allowed as above. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. kk 4