IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 MFA.No. 174 of 2009() --------------------- WC.11/2005 of W.C.C.,KOZHIKODE .................... APPELLANTS: APPLICANTS ---------------------------------------- 1. MALAYIL RAVEENDRAN,S/O.UNNEERI,MALAYIL HOUSE, KAKKOOR.P.O,NADUVALLOOR AMSOM DESOM, KOZHIKODE. 2. CHANDRAMADI,W/O.RAVENDRAN,MALAYIL HOUSE, KAKKOOR.P.O,NADUVALLOOR AMSOM DESOM,KOZHIKODE. 3. JINESH,S/O.RAVEENDRAN,MALAYIL HOUSE, KAKKOOR.P.O,NADUVALLOOR AMSOM DESOM,KOZHIKODE. BY ADV. SRI.K.V.GOPINATHAN NAIR CHITHRA G RESPONDENTS: OPPOSITE PARTIES ---------------------------------------------------- 1. BAIJU,S/O.BHASKARAN,ASARIKANYMEETHAL HOUSE,KAKKOOR.P.O,KOZHIKODE. 2. M/S UNITED INDIA INSURANCE COMPANY LTD, CITY BRANCH 1,RAMEEZ ARCADE,C.H.FLYOVER JN, CHEROOTY ROAD, CALICUT. ADV. SRI.P.K.MANOJKUMAR FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(W.C.Act) No. 174 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of October, 2011 JUDGMENT K.M. Joseph J., We heard learned counsel for the appellant and learned counsel for the 2nd respondent/Insurance Company. 2. The appellants are the legal heirs of the deceased employee. The employee succumbed to the injuries sustained by him while he was working as a driver, on 25.11.2004. The Commissioner awarded compensation in a sum of Rs.3,82,323/- with 12% interest from the date of accident. 3. The only complaint which is pressed before us relates to the wages being calculated at the rate of Rs.3,500/- per month. M.F.A.No. 174 of 2009 :2: According to the appellants, the wages should have been fixed at Rs.6,000/-, including all allowances. The finding of the Commissioner on the issue is as follows: “The opposite party no.1 as well as opposite party no.2 filed detailed written statement. Opposite party no.1 has admitted the employment of the deceased worker. Among other things the opposite party no.1 had stated that the deceased worker was getting an amount of Rs.6,000/- including allowances and batta, he had not produced any documents to prove the same. Being an employer without producing the register of wages, mere admission is not sufficient to arrive at a decision in regard to the eligibility of compensation admissible to the applicants. Hence it should be presumed the deceased worker was getting a monthly wages of Rs.3,500/- an amount equivalent to the minimum wages prevalent in that time. As per Ext.A3 (true copy of the S.S.L.C. book of the deceased), he had attained 24 years of age at the time of accident.” M.F.A.No. 174 of 2009 :3: 4. Actually it is pointed out by the learned counsel for the insurer that the first opposite party in the written statement has stated that the deceased was not paid an amount of Rs.6,000/- as monthly wages at any time. According to the first opposite party, the deceased may have received an amount of Rs.6,000/- including allowance and collection batta. 5. We must first remind ourselves that an appeal under Section 30 of the Workmen's Compensation Act will arise only if there is a substantial question of law. Finding as to wages is essentially a question of fact. It is to be noted that there is no documentary evidence produced, as such. Further, the maximum wages that could be taken was only Rs.4,000/-, according to the provisions under Section 4 of the Workmen's Compensation Act. Further we are not inclined to interfere with the finding of the Commissioner. Even an erroneous finding at any rate does not give rise to a substantial question of law. M.F.A.No. 174 of 2009 :4: 6. The appeal is without any merits and accordingly it is dismissed. Sd/- K.M.JOSEPH, (JUDGE) Sd/= M. L. JOSEPH FRANCIS, (JUDGE) dl/ // TRUE COPY // PA TO JUDGE