IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 513 of 2007 The New India Assurance Company Ltd. … Appellant Vs Smt. Khasti Devi & another … Respondents Sri M.K. Goyal, learned counsel for the appellant Sri G.S. Negi, learned counsel for the respondent No. 1 Sri Vijay Khanduri, learned counsel for the respondent No. 2 Hon’ble B.C. Kandpal, J. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 filed by the appellant against the judgment and order dated 08.08.2007 passed by Workmen’s Compensation Commissioner, Chamoli in W.C.A. No. 11 of 2002, Smt. Khasti Devi Vs New India Assurance Company Ltd. & another. 2. Brief facts of the case are that the deceased – Jeetpal Singh was working as a driver in vehicle No. UP07C/4626 under the employment of respondent No. 2 – Avinash Joshi. On 30.08.2003 at about 11:00 a.m., Jeetpal Singh (deceased) during the course of his employment met with an accident near Kamera, Thana – Karanprayag, in which he sustained serious injuries. He was admitted in the Government Hospital, Karanprayag, where he was declared dead by the doctors. According to the claimant, he used to earn Rs. 3,000/- per month and Rs. 50/- per day for meal expenses. The claimant is the wife of the deceased and filed claim petition for a sum of Rs. 5,20,000/- as compensation. 3. On the basis of the application filed by the claimant, notices were issued to the opposite parties, who have filed their separate written statement before the court below. 2 Opposite party No. 2 – Avinash Joshi has stated that the claim of the claimant is filed on the flimsy grounds. It has also alleged that the vehicle in question was insured with the New India Assurance Company Ltd., therefore, the liability of compensation lies upon the insurer. On the other hand, opposite party No. 1 – the New India Assurance Company Ltd. alleged in its written statement that the claimant had to prove the income of the deceased, unless, the court below has to consider the minimum wages of the deceased in order to calculate the amount of compensation. Therefore, the Insurance Company was not liable to pay any compensation. 4. On the basis of the pleadings of the parties, the court below framed relevant issues for consideration, which were discussed in a great detail. Thereafter, both the parties, led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire record awarded a sum of Rs. 2,49,435/- in favour of the claimant, vide judgment and order dated 08.08.2007. 5. Feeling aggrieved by the aforesaid judgment and award, the appellant/Insurance Company preferred this appeal before this Court. 6. Heard Sri M.K. Goyal, learned counsel for the appellant, Sri G.S. Negi, learned counsel for the respondent No. 1, Sri Vijay Khanduri, learned counsel for the respondent No. 2 and perused the record. 7. As far as the employment of the deceased is concerned, it is not disputed that he was working as driver in vehicle No. UP07C/4626 under the employment of Avinash Joshi. It is also not disputed that on the date of accident, the 3 vehicle in question was insured with the appellant/the New India Assurance Company Ltd. Learned counsel for the appellant has submitted before the Court that the deceased/driver of the vehicle in question was not having the valid and effective driving licence. He has further submitted that his licence had expired on 05.05.2003 and the accident took place on 30.05.20003, hence, the driving licence of the deceased/driver was invalid on the date of accident. He has further submitted that the amount awarded by the court below is liable to be set aside. 8. Learned counsel for the respondent/claimant has made rival contention and has submitted that the court below has rightly held that the licence produced by the claimant was valid on the date of accident. He has further submitted that the court below on the basis of the Section 15 of the Motor Vehicle Act, 1988 came to the conclusion that the licence should be renewed within a month, from the date of expiry. It is not disputed that the accident took place within a month after expiry of date of validity of driving licence. Therefore, it cannot be said that the driver of the vehicle in question was not possessing the valid driving licence on the date of accident. 9. On the basis of the material available on record as well as finding recorded by the learned Commissioner in the impugned judgment while deciding the issue No. 2, I am of the view that the learned Workmen Compensation Commissioner has rightly held valid licence of the deceased on the date of accident. It is clear from the perusal of the Section 15 of the Motor Vehicle Act, 1988 that the applicant has to apply for renewal of his licence before expiry of one month and thereafter only the licence can be said to be invalid. The 4 findings recorded by the Tribunal with regard to the driving licence, appears to be quite reasonable. I do not find any justification to interfere in the same. 10. Learned counsel for the appellant has further submitted that the learned Workmen Compensation Commissioner without considering the evidence available on record wrongly considered the deceased under the Workmen Compensation Act. He has submitted that the deceased was employed as a driver to drive the vehicle No. UP07C/4626 on daily wages and he was not working on a regular basis, therefore, the deceased cannot be said to be come under the category of employment. 11. From the perusal of the statement of the owner Avinash Joshi – owner of the vehicle in question has stated that he used to pay him Rs. 100/- per day but after going through the record, I do not find any document which may shows the actual income of the deceased. In the absence of any document pertaining to the income of the deceased, the learned Workmen Compensation Commissioner has rightly taken into account the monthly income of the deceased as Rs. 3,000/- per month. As far as the submission advanced by learned counsel for the appellant is concerned, I do not find any force in the submission advanced by learned counsel for the appellant. Smt. Khasti Devi (P.W.1) has stated that her husband was working as a driver under the employment of Avinash Joshi and the owner of the vehicle has appeared before the court below and admitted this fact that the deceased was under his employment, therefore, there is no question arises as far as the submission advanced by learned counsel for the appellant. The learned Commissioner in order to calculate the compensation assessed the income of the 5 deceased as Rs. 3,000/- per month. I do not find any illegality in the same. The learned Workmen Compensation Commissioner calculated the amount of compensation, considering the factor given to schedule 4(a) of the Workmen Compensation Act, 1923 and awarded Rs. 2,49,435/- in favour of the claimant. 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. 12. No other point has been pressed by learned counsel for the appellant. 13. 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. 14. Accordingly, the appeal is dismissed. No order as to costs. (B.C. Kandpal, J.) 10.12.2008 ASWAL