1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2103/2009 Shamalbai w/o Parmeshwar Honrao and others ...Appellants. Versus Sunil s/o Mahadev Mahajan and another ...Respondents. Shri S.S. Pawar, Advocate for appellants. Shri Dhananjay Deshpande, Advocate for respondent No.2. CORAM : A.V. NIRGUDE, J Date : 19thJuly, 2010. PER COURT:- 1 Heard. 2 This appeal is filed against the judgment and award dated 03/05/2008 passed by the learned Commissioner under Workmen Compensation Act and Labour Judge, Latur in W.C. Application No. 52/2007. The appellants were the claimants. It is common ground that the appellant No.1’s husband Parmeshwar was an employee of the respondent No.1, as driver of his commercial vehicle. Parmeshwar while discharging his duty, met with vehicular accident and died on 19/05/2007. It is further common ground that the vehicle was insured with the respondent No.2. It is not in dispute now that on the date of accident, the age of Parmeshwar was 35 years (the 2 appellant’s advocate conceded to this though in the lower Court, the case of the appellants was that Parmeshwar was only 32 years old when the accident took place). It is the case of the appellants that the monthly salary of Parmeshwar, at the time of his death, was Rs. 4,000/- per month. In addition to that, he used to get Rs.50/- per day as daily allowance. The respondent No.1 did not file written statement and did not put forward his case about the monthly salary. Respondent No.2 simply denied this assertion in respect of the amount of salary. The learned judge of the lower court held that the monthly salary of Parmeshwar was only Rs.2,500/-. This finding is mainly challenged in this appeal. On the question of quantum of salary, the appellant No.1 made a statement on oath that her husband was getting Rs.4,000/- as monthly salary. As against this, the respondent No.2 placed reliance on a document. It is a “claim application” moved by the respondent No.1 to the respondent No.2. In this claim application, the respondent No.1 mentioned that Parmeshwar’s monthly salary was Rs.2,500/-. The learned judge accepted this material as better evidence on this question than the oral testimony of the appellant No.1. Shri S.S. Pawar learned Advocate appearing for the appellant challenged this finding saying that the learned judge of the lower Court committed grave error in placing reliance on a document which was not even properly proved. Indeed, the learned judge of the lower Court, could not have been placed reliance on the document that was not even properly proved. 3 The document could have been proved only by examining the author of the same. So the document goes out of record. Now, what remains on record is, the oral deposition of the appellant No.1. Had the respondent No.2, had been more serious in contesting this issue, they could have certainly examined the respondent No.1 as their witness. They could have even brought documentary evidence to support their case etc.. In absence of this, the fact that the appellants did not bring documentary evidence in respect of quantum of salary of Parmeshwar on record, pales into insignificance. In my view, the deposition of the appellants No.1 on this point, is the only material on record and the Court has to accept it. I accept it and hold that the appellants proved that Parmeshwar had monthly salary of Rs.4000/-. In view of this, the amount of compensation would be increased. Multiplier applied by the Court below of 197.06 shall remain unchanged but this should be multiplied by Rs. 4,000%2=2000. The amount would come to Rs.3,94,120/-. 3 The respondents No.1 and 2 jointly and severally shall pay Rs.3,94,120/- along with interest @ 12% per annum from the date of the application along with cost to the appellants. [A.V. NIRGUDE, J.] tsk/fa2103.09