IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 125 of 2008 United India Insurance Company Ltd. … Appellant Vs Smt. Savitri Devi & another … Respondents Sri Pankaj Purohit, learned counsel for the appellant Sri R.P. Nautiyal, learned counsel for the respondent/owner Hon’ble B.C. Kandpal, J. This appeal under Section 30 of the Workmen Compensation Commissioner, 1923 has been filed by the appellant against the judgment and award dated 20.02.2008 passed by learned Workmen Compensation Commissioner/District Magistrate, Chamoli in W.C. Case No. 18 of 2005-06, Smt. Savitri Devi Vs Sultan Singh Kanderi & another. 2. Brief facts of the case are that the deceased Khim Singh was engaged as a driver in truck No. UA07R/8113 under the employment of Sri Sultan Singh Kanderi. On 16.07.2006, the said vehicle met with an accident at Rishikesh-Joshmath-Mana Motor Road. The claimant is the wife of the deceased who has filed an application before the learned Workmen Compensation Commissioner for a sum of Rs. 5,00,000/- as compensation. 3. Thereafter, notices were issued to the opposite parties. On the receipt of the notice, opposite party No. 1 – Sultan Singh filed his written statement on 18.10.2006 denying most of the allegation made in the application. It has alleged in the written statement that the deceased was engaged as a driver in truck No. UA07R/8113. It has also pleaded that the truck in question was insured with the 2 United India Insurance Company Ltd., therefore, the liability of compensation, lies upon the insurer of the vehicle. 4. The United India Insurance Company Ltd. also contested the claim petition by filing written statement before the learned Workmen Compensation Commissioner on 22.11.2006. The Insurance Company also pleaded that according to the First Information Report, there were seven person sitting inside the truck, which is a violation of permit and insurance policy, therefore, the insurer of the vehicle is not liable to pay any compensation. 5. On the basis of the pleadings of the parties, the learned Workmen Compensation Commissioner framed relevant issues. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the learned Workmen Compensation Commissioner awarded a sum of Rs. 2,67,735/- against the appellant/insurer of the vehicle vide judgment and order dated 20.02.2008. 6. Feeling aggrieved by the aforesaid judgment and award, the appellant has preferred this appeal before this Court. 7. Heard Sri Pankaj Purohit, learned counsel for the appellant, Sri R.P. Nautiyal, learned counsel for the respondent/owner and perused the record. 8. Learned counsel for the appellant has first of all argued that the learned Workmen Compensation Commissioner did not assess the evidence on record. He has submitted before the Court that the age of the deceased on the 3 date of accident was 45 years but the court below has taken into account the age of the deceased as 42 years. Therefore, the learned Workmen Compensation Commissioner committed error by not scrutinizing the evidence available on record. 9. From the perusal of paper No. A3/7, which is a pariwar register, is shows that on the date of accident the deceased was 42 years of age as the pariwar register shows that the date of birth of the deceased was 16.07.1964 and the accident took place on 16.07.2006. The court below relied upon the pariwar register taken the age of the deceased as 42 years, which does not require any interference. I do not find any force in the submission advanced by learned counsel for the appellant. 10. Sri Pankaj Purohit, learned counsel for the appellant has further submitted that court below has committed illegality while calculating the amount of compensation. He has submitted that the court below did not consider this aspect that the employer himself has stated in the written statement as well as in the evidence that he used to pay Rs. 2,000/- per month as salary. Therefore, the court below has committed error by calculating the monthly income of the deceased on the higher side. 11. As far as the calculation of the amount of compensation is concerned, the court below on the basis of material available on record calculated the amount of compensation. P.W. 1 – Smt. Savitri Devi has stated in her oral evidence that her husband – Khim Singh was getting Rs. 4,000/- per month as salary and Rs. 50/- towards daily meal. On the other hand, opposite party No. 1 – Sultan Singh Kanderi has stated that the deceased was employer as a driver 4 of truck No. UA07R/8113 and he used to pay Rs. 2,000/- per month as salary and Rs. 40/- toward daily meal. But the claimant as well as employer has not produced any documentary evidence, which may show the actual income of the deceased. Therefore, the court below considering the daily wages of Rs. 100/- assessed the monthly income of the deceased as Rs. 3,000/- per month. The learned Workmen Compensation Commissioner calculated the amount of compensation adopting the factor according to schedule 4(a) of the Workmen Compensation’s Act, 1923 and awarded a sum of Rs. 2,67,735/- in favour of the claimant. I 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. Accordingly, the appeal is dismissed. No order as to costs. (B.C. Kandpal, J.) 08.06.2009 ASWAL