1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.842 OF 2009 Shri Subhash H.Shardul @ Mistri - APPELLANT VERSUS 1) Smt. Malubai Barku Shinde (Vadar) and Ors. - RESPONDENTS ***** Mr.GV Wani, Advocate for Appellant; Mr.AB Kale, Advocate for Resp. Nos. 3 & 4; Mr.AS Usmanpurkar, Adv. h/for Mr. KV Kulkarni for Respondent No.5. ----- CORAM : K.U.CHANDIWAL, J. DATE : 4th January, 2010. PER COURT : 1) Heard the learned Counsel for the respective parties. 2) The order of the learned Commissioner for Workmen’s Compensation & Judge, Labour Court, Jalgaon, dated 10th May, 2006, granting compensation of Rs.1,63,852/-, is assailed by the 2 appellant/owner of the tractor on the count that the deceased was not in employment of the appellant/owner and consequently, the findings of the learned Judge are erroneous. 3) The learned Judge has recorded that the stand taken was for the first time, and I find substance in it, as there was a notice in advance sent under the statutory arrangement to the owner of the vehicle. There was no defence raised, which was raised for the first time, in the pleadings. This by itself would not be a sole ground. However, the contention that the deceased was only a labour and could not be in employment, is not supported by any other evidence though there was already other employee travelling with the vehicle, which could have supported the contention as agitated by the owner. 4) The other contention was about the income of the deceased. The learned Judge has 3 considered the same @ Rs.1500/- per month by calculating it @ Rs.50/- per day. I do not see that it is on higher pedestal. The assessment of the evidence, carried by the learned Judge, and particularly the nature of obligation cast on the owner of the vehicle, cannot be said to be perverse requiring any interference. The ultimate amount of Rs.1,63,852/- is also not at excessive side. No merit in the appeal, the appeal dismissed. No costs. (K.U.CHANDIWAL) JUDGE bdv/fa842.09