IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.321 of 2005 1.REKHA DEVI wife of late Sanjay Singh (deceased) aged about 26 years 2.Kajal Kumari daughter of late Sanjay Singh, aged about 5 years, minor daughter under the guardianship of his mother Mosmat Rekha Devi 3.Sri Sitaram Singh son of late Sahdeo Singh aged about 55 years 4.Smt. Mani Devi wife of Sri Sitaram Singh, aged about 52 years 5.Ajit Kumar Singh son of Sri Sitaram Singh, aged about 17 years 6.Pratima Kumari daughter of Sri Sitaram Singh, aged about 14 years. Minor brother and sister under the guardianship of their father namely Sri Sitaram Singh. All are residents of village Kaji Daulatpur, Post Samaspur P.S. Belaganj, District Gaya-Appellants/Appellants Versus 1.THE NATIONAL INSURANCE COMPANY LTD. through its Divisional Manager, Division Office (Shanti Market) Gandhi Maidan, Gaya, District Gaya 2.Sri Haridwar Singh son of late Kuldip Singh, resident of Mohalla Gudar Pandey Lane, Post and P.S. Buniyadganj, District Gaya, owner of the involved Bus No. B.R. 15-P-0342-opp.parties/Respondents ----------- For the Appellants :Mr.Arvind Kr. Singh,Advocate For respondent no.1 :Mr.Shailendra Kumar,Advocate ---- 13. 09.02.2010 Heard learned counsel for the appellants and learned counsel for the respondent no.1, Insurance Company. The appeal has been filed against the order dated 21.2.2005 passed by the Deputy Labour Commissioner-cum-Commissioner Workmen’s Compensation, Magadh Division, Gaya in C.W.C. No. 42 of 2001 by which he has directed the Insurance Company to deposit a sum of Rs.1,74,070/- within one month from the date of the order as compensation to the claimants- 2 appellants failing which interest at the rate of 9% shall become payable from the date of accident. The appellants are the dependents of the deceased who is stated to be a Khalasi of the Bus bearing registration No. BR-15P 0342 owned by the respondent no.2 Haridwar Singh. It was alleged that while he was taking down the luggage of the passengers of the Bus on 9.6.2001 the driver negligently moved the Bus as a result of which the deceased Sanjay Singh fell down from the roof of the Bus and died. His age at the time of death is stated to be 25 years and it was alleged that he was earning Rs.4000/- per month. A claim was made before the Deputy Labour Commissioner-cum- Workmen’s Compensation Commissioner. The respondent no.2, owner of the bus, did not appear and subsequently on notice the Insurance Company with whom the Bus was insured appeared and contested the matter. Ultimately, the aforesaid order directing payment of compensation was passed by the Deputy Labour Commissioner-cum-Workmen’s Compensation Commissioner. 3 Learned counsel for the appellants has assailed the order of Workmen’s Compensation Commissioner on the sole ground that the workman was getting a salary of Rs. 4000/- per month and therefore the compensation ought to have been calculated on the same and not on the basis of minimum wages of Rs.1605/- per month as prescribed by the State Government. It is submitted by learned counsel that the owner of the Bus did not come forward to contest the case and hence the salary claimed by the appellants ought to have been accepted as correct. Learned counsel for the Insurance Company, on the other hand, submits that the stand of the Insurance Company was that the deceased being a Khalasi does not come within the purview of the Insurance Policy and thus no liability could have been fastened upon the Insurance Company. It is further submitted that written statement of the owner of the vehicle was also submitted in which it was stated that the salary of the deceased was Rs.1500/- per month only. Learned counsel also submits that since the respondent Insurance Company had contested the matter the Deputy 4 Labour Commissioner did not have any authority to proceed and decide the matter as the Workmen’s Compensation Commissioner in view of Notification issued by the State Government in this regard where contested cases can only be decided by the Presiding Officer, Labour Court-cum-Workmen’s Compensation Commissioner. So far as the claim of the appellants regarding the salary of the deceased being Rs.4000/- per month is concerned the same is not supported by any material on the record and learned counsel for the appellants is also unable to substantiate the same except for the statements made by the claimants themselves. In that view of the matter, learned Workmen’s Compensation Commissioner has rightly held that the minimum wages prescribed by the State Government ought to be treated as the salary of the workman even though it is alleged that the actual salary was less than the same. For the said reason the salary of Rs.1605/- per month taken by the Workmen’s Compensation Commissioner appears to be in accordance with the provisions of law. No other error has been pointed out by learned 5 counsel for the appellants in the order of the Workmen’s Compensation Commissioner. So far as the stand of the Insurance Company is concerned, it has not filed any appeal against the impugned order and thus it is not open to it to assail the order on such ground. It is true that a contested matter ought to go to the concerned Presiding Officer, Labour Court designated as Workmen’s Compensation Commissioner and the Deputy Labour Commissioner ought not to decide the matter, but in the absence of any appeal by the Insurance Company the order cannot be assailed on that ground by it. Hence, the other submission of learned counsel for the Insurance Company cannot be accepted, as this is an appeal by the dependents of the workman. In the above circumstances, this Court does not find any merit in the appeal. It is, accordingly, dismissed. (Ramesh Kumar Datta,J.) Spal/