1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL No. 48 OF 2010 1] Smt. Vithabai Bhavsaheb Khairnar Age 32 years, Occu. Nil, 2] Maya Bhavsaheb Khairnar, Age 17 years, Occu. Education 3] Rani Bhavsaheb Khairnar, Age 15 years, Occu. Education, 4] Moni Bhavsaheb Khairnar, age 13 years, Occu. Education, 5] Rahul Bhavsaheb Khairnar, Age 5 years, Occu. Education All residents of Junawane Tq. & Dist. Dhule .. APPELLANTS VERSUS 1] Shri Subhash Kanhaiyalal Bafna, Age Major, Occu. Transport Business, R/o Opposite to Bank of Baroda, Near Veghdevata Mandir, Malegaon Road, Dhule, Tq. & Dist. Dhule. 2] The Oriental Insurance Company Ltd. Dhule. (notice may be served on the Manager), The Oriental Insurance Company Ltd., Lane No. 5, Near Municipal Girls School, Dhule. .. RESPONDENTS ... Shri Shrikant Patil, Advocate for appellants Shri A.G. Kanade, Advocate for respondent No. 2 2 CORAM : S.V. GANGAPURWALA, J. DATE :- 8th SEPTEMBER, 2010. ORAL JUDGMENT: The appeal is fixed for final hearing with consent of parties. As such, Rule made returnable forthwith, with the consent of parties. 2. The appellants are the original claimants. They had filed an application for compensation on account of death of deceased Bhausaheb, who was working as a driver on heavy vehicle with the present respondent No. 1. The Truck, which was driven turned, turtle, and, the deceased died on the spot. According to the claimants, the deceased was getting monthly salary of Rs. 4,000/- per month and Bhatta of Rs. 3,000/- along with 4% commission per trip amounting to Rs. 3,000/-. The Commissioner for Workmen’s Compensation has considered the salary as Rs. 2500/- only, and awarded the compensation. 3. Shri Patil, learned Counsel for 3 claimants, contended that the ample evidence was on record to prove the salary. Even the employer has stepped in the witness box and has categorically stated that the salary of the deceased was Rs. 4,000/- per month with Bhatta Rs. 3,000/- and further commission, and even the claimant No. 1 has stepped in the witness box and stated these facts, and no evidence is led by the respondents. The following substantial question of law arises : “ Whether the Judgment suffers from perversity in appreciation of evidence?” 4. Shri Kendre, learned Counsel for the respondent No.2-Insurance Company, submitted that no perversity can be found in the appreciation of evidence by the Commissioner, in as much as, even the salary certificate, which was produced on record, was given after the death of the deceased. No evidentiary value can be attached to 4 such certificate. He further submitted that the evidence of the Appellant No. 1 and the employer does not inspire confidence and the Commissioner has rightly dealt with the same. 5. I have gone through the evidence of the parties. It is manifest that the employer, so also the appellant No.1 have categorically stated about the income of the deceased i.e. salary of Rs. 4,000/-p.m.+ Bhatta and the commission. There is nothing on record to disbelieve that the deceased was not getting salary of Rs. 4,000/- per month. The respondents have not led any evidence in this regard, nor the evidence of the Appellant No.1 and the employer has been shattered in cross examination. In such circumstances, when there is ample oral evidence on record, there was no reason to disbelieve the said evidence. In the light of the above, I feel that there is absolute failure on the part of the Commissioner to appreciate the evidence in its correct perspective. In fact, it would tantamount to perversity in appreciation of evidence. 5 6. I hold that the deceased was earning salary of Rs. 4,000/- per month, as such, compensation deserves to be awarded holding that that the deceased was earning salary of Rs. 4,000/- per month. 7. In the result, I modify the order passed by the Commissioner and pass following order : ORDER The opponents are directed to pay jointly and severally an amount of Rs. 3,89,280/- (Rs.Three lakh eighty nine thousand two hundred eighty) to the claimants along with 7.5% interest per annum from the date of this order till realization within a period of two months. The respondent No. 2 has already deposited Rs. 2,43,300/-(Rs. Two lakh forty three thousand three hundred). The said amount be adjusted from the amount awarded by this Court. 6 Appeal accordingly disposed of with no order as to costs. [S.V.GANGAPURWALA,J] SDM* 48.10FA