THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.3428 of 2000 Date:20.11.2009 Between: K. Mallaiah. ..Appellant. and V. Bikshmaiah and another ..Respondents. THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.3428 of 2000 ORDER: Heard the learned counsel for the appellant. Though notice was served on the second respondent, nobody appears. This is a case under Workmen’s Compensation Act, 1923 (‘the Act’ for short). A claim on account of death of one K. Laxmamma during the employment with the first respondent was made before the Commissioner for Workmen’s Compensation, Ranga Reddy District, Circle-II, Hyderabad, in W.C.No.133 of 1998, claiming a sum of Rs.1,85,000/-. In support of the claim, evidence was adduced by P.W.1 that the deceased - K. Laxmamma was working as a labourer on tractor trailor belonging to the first respondent for transporting dung from the village to the fields. According to her, the deceased was aged 19 years and she was being paid Rs.50/- per day. On the date of the accident on 03.05.1995, the driver of the tractor tailor drove the vehicle in a rash and negligent manner resulting in death of Laxmamma. The Police registered Crime No.17 of 1995 and prosecuted the driver. The Police record, namely, F.I.R., is marked as Ex.A-1 and Ex.A-2 is the remand case diary. Ex.A- 3 is the copy of the insurance policy under which the second respondent has insured the said vehicle belonging to the first respondent. The said claim was enquired into by the learned Commissioner and though there is evidence adduced by the owner- cum-employer of the deceased confirming that the deceased was a labourer working for him and he was paying Rs.60/- per day. The learned Commissioner has not accepted the same and has considered the compensation from the point of view of the minimum wage of Rs.1,047/- and assessed the compensation payable at Rs.90,841/-. To the extent of disallowed claim, the present appeal is filed. I have heard the learned counsel for the appellant. It is rightly pointed out by the learned counsel for the appellant that employer of the deceased had admitted that she was under his employment and he denied the suggestion that there was employer and employee relationship. He had also asserted that she was paid Rs.60/- per day to her and that the insurance policy covers the risk. The said evidence of the first respondent – owner and employer of the deceased remained unshaken in the cross-examination. The learned Commissioner, therefore, could not have ignored the said evidence on record. In the nature of such employment in a village, it is not expected that there would be any documentary evidence. Therefore, the statement of the first respondent that he was paying Rs.60/- per day to the deceased ought to have been accepted by the learned Commissioner rather than adopting the minimum wage factor. The rest of the order of the learned Commissioner taking the age of the deceased as 25 years as mentioned in the Police records rather than 19 years as claimed by the appellant, however, requires no interference in view of the fact that there is no evidence in support of the contention of the appellant that the deceased was aged 19 years. Therefore, the relevant factor also was correctly applied by the learned Commissioner. The appeal, therefore, succeeds to the extent of applying the minimum wage factor. Accordingly, wages are estimated at Rs.60/- per day excluding the Sundays which would works out to Rs.1,500/- per month approximately. As per Section 4(a) of the Act, when the death results from an injury, the compensation shall be an amount equivalent to 50% of the wages of the deceased workman multiplied by the relevant factor. Thus, applying 50% of the wages i.e., Rs.750/- multiplying it with relevant factor of 216.91, the compensation determined would work out to Rs.1,62,682.56ps as against Rs.90,841/- awarded by the Commissioner. The impugned award is modified with the enhancement as indicated above and the Civil Miscellaneous Appeal is accordingly allowed in part. No order as to costs. __________________________ (VILAS V. AFZULPURKAR, J) 20th November, 2009 GHN