IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 657 of 2006 Smt. Jashoda Devi & others … Appellants Vs Vinay Kumar Chaudhary & another … Respondents Sri Pankaj Purohit, learned counsel for the appellants Sri Partiroop Pandey, Advocate holding brief of Sri R.P. Nautiyal, learned counsel for the respondent No. 1 Sri P.C. Maulekhi, learned counsel for the respondent No. 2 Hon’ble B.C. Kandpal, J. This appeal under Section 30 of the Workmen Compensation Commissioner has been filed by the appellants against the judgment and award dated 08.02.2006 passed by Workmen Compensation Commissioner, Chamoli in Workmen Compensation Case No. 14 of 2004-05 whereby the learned Workmen Compensation Commissioner awarded a sum of Rs. 2,38,298/- along with interest @ 9% per annum from the date of filing the claim petition till the actual date of payment. 2. Brief facts of the case are that Rajendra Singh @ Pushkar Singh was working as a driver in truck No. UA12C/1751 under the ownership of Vinay Kumar Chaudhary. On 24.03.2004 at about 03:30 p.m., Joshimath- Badrinath Road near Bardora Bridge, the said truck met with accident. The said truck fell down the 100 mt. ditch. The driver of the truck – Rajendra Singh died at the spot. At the time of the accident, the deceased was earning Rs. 6,000/- per month as salary and Rs. 40/- per day for meal. Therefore, the claimant filed an application before the Workmen Compensation Commissioner for a sum of Rs. 8,00,000/- as compensation. 2 3. Thereafter, the opposite parties were issued notices. Opposite party No. 1 – Vinay Kumar Chaudhary filed his written statement on 27.10.2004 stating therein that he was the owner of the truck No. UA12C/1751 and admitted the fact of accident. He has further stated that the vehicle in question was insured with the New India Insurance Company Ltd. He has also stated that he had given Rs. 3,500/- per month as salary and Rs. 50/- per day for meal. He has further stated that the Insurance Company was liable to pay compensation. 4. The opposite party No. 2 – The New India Insurance Company Ltd. also contested the petition by filing its written statement before the learned Workmen Compensation Commissioner alleging therein that the vehicle in question was insured for limited liability. The amount claimed by the claimants is on the higher side. Therefore, the Insurance Company was not liable to pay any compensation. 5. On the basis of the pleadings of the parties, the learned Workmen Compensation Commissioner framed relevant issues, which were discussed in a great detail. After hearing learned counsel for the parties and perusing the entire material available on record, the learned Workmen Compensation Commissioner decreed the claim petition in favour of the claimants for a sum of Rs. 2,38,298/- along with interest @ 9% per annum vide judgment and award dated 08.02.2006. 6. Feeling aggrieved by the aforesaid judgment and award, the appellants/claimants preferred this appeal before this Court. 3 7. Heard Sri Pankaj Purohit, learned counsel for the appellants, Sri Partiroop Pandey, Advocate holding brief of Sri R.P. Nautiyal, learned counsel for the respondent No. 1, Sri P.C. Maulekhi, learned counsel for the respondent No. 2 and perused the record. 8. Learned counsel for the appellants/claimants has submitted before the Court that the learned Workmen Compensation Commissioner has committed an error while calculating the income of the monthly salary of the deceased. The Workmen Compensation Commissioner has wrongly taken into account monthly income of the deceased as Rs. 2,550/- whereas the owner himself admitted this fact that he used to give to Rs. 3,5000/- per month as salary and Rs. 50/- per day for meal. In this way, the learned Workmen Compensation Commissioner has committed an error by not considering Rs. 5,000/- per month salary of the deceased. 9. Sri P.C. Maulekhi, learned counsel for the respondent/Insurance Company has submitted before the Court that the in the absence of any document pertaining to the monthly income of the deceased, learned Workmen Compensation Commissioner has rightly taken into account Rs. 85/- per day as wage charges and calculated the monthly income of Rs. 2,550/- in order to calculate the amount of compensation. 10. After hearing learned counsel for the parties and perusing the entire material available on record, I do not find any ground to interfere in the impugned judgment and award. It is not disputed that on the date of accident, the deceased 39 years of age. According to the claimant, the deceased was getting Rs. 6,000/- per month salary and Rs. 40/- per day as 4 meal expenses whereas the owner of the truck – Vinay Kumar Chaudhary has submitted in his statement that he used to pay Rs. 3,500/- per month as salary and Rs. 50/- per day towards meal expenses. Further there is no evidence available on record, which may show the actual income of the deceased. Therefore, the learned Workmen Compensation Commissioner has rightly taken into account Rs. 2,550/- as monthly income of the deceased. The learned Workmen Compensation Commissioner calculated the amount of compensation considering the factor according to schedule 4(a) of the Workmen Compensation Act, 1923 and awarded Rs. 2,38,298/- in favour of the claimants. I also do not find any calculation error in the impugned judgment and award. The amount awarded by the learned Workmen Compensation Commissioner is just and proper. 11. No other point has been pressed by learned counsel for the appellant. 12. I am in total agreement with the finding recorded by the learned Workmen Compensation Commissioner in this regard. I do not find any force in the present appeal. The appeal lacks merit and is liable to be dismissed. 13. Accordingly, the appeal is dismissed. No order as to costs. (B.C. Kandpal, J.) 11.11.2008 ASWAL