IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 474 of 2005 The New India Assurance Company Ltd. ……Appellant Versus Smt. Najima and 4 others ..Respondents. Mr. R.B. Agarwal, learned counsel for the appellant. Mr. Z.U. Siddiqui, Advocate for respondents 1 to 5. Mr. Lalit Miglani, in brief of Mr. Pankaj Miglani, Advocate for respondent No. 6. Dated: 08-05-2008 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicles Act 1988, has been preferred against the judgment and award dated 24-8-2005, passed by Workmen’s Compensation Commissioner, Haldwani, in W.C.A. No. 29/2004. 2- The brief facts of the case are that petitioner Smt. Najma filed claim petition before the Workmen’s Compensation Commissioner for compensation in lieu of death of her husband Rashid Ali. Rashid Ali was employed as driver in the Canter No. H.R. 29-C-3477. On 25-8-2002 the said Canter was usurped and its driver and cleaner were killed and their dead bodies were thrown within the limit of P.S. Kudarki, Moradabad. According to the claimant the deceased Rashid was 25 years of age and his monthly salary was Rs. 4,000/- 3- The owner of the Canter admitted the employment of Rashid Ali on his Canter in the capacity of driver and alleged that he use to pay him monthly salary of Rs. 2,000/- plus Rs. 20/- per day for food expenses. The owner also admitted that the death of Rashid Ali had occurred during the course of his employment but denied his liability because the vehicle was insured with New India Assurance Company and its driver was having valid driving license. 4- The Opposite Party, New India Assurance Company also filed objection and alleged that the offending vehicle had no valid insurance and its driver was not possessing valid driving license. The income of the deceased was also disputed by saying that exaggerated amount of salary has been mentioned. 5- The learned Workmen’s Compensation Commissioner after having heard learned counsel for parties and perusing the material on record allowed the petition for a sum of Rs. 2,70,034/- plus interest of Rs. 89,215/- for the period 25-8-2002 to 25-5-2005, the total amount being Rs. 3,59,589/- 6- Feeling aggrieved the New India Assurance Company filed this appeal before this Court. 7- The claimant also filed cross objection for enhancement. 8- Heard learned counsel for the parties and perused the record. 9- After having considered the arguments of the learned counsel for the parties and perusing the material on record, I do not find any force in the appeal filed by the insurer as well as the objection filed by the claimants for enhancement. 10- From perusal of the record, it is quite clear that the owner of the offending Canter has admitted the employment of the deceased Rashid Ali in the capacity of driver in his canter and he also admitted that the deceased had died during the course of performance of his duty. The learned Commissioner recorded a finding that the offending Canter at the relevant time was insured with New India Assurance Company and it had valid documents, therefore, the liability to pay compensation is upon the insurer. Hence, in view of admitted facts that the deceased had died during the course of his employment and the vehicle was insured with New India Assurance Company, the claimant is entitled to get the compensation in lieu of death of workman from the insurer of the offending vehicle. 11- So far as the quantum of compensation is concerned, according to the claimants the deceased was getting salary of Rs. 4,000/- per month, but as per the owner of the canter, he was giving the salary to the deceased @Rs. 2,000/- per month plus Rs. 20/- per day towards food expenses. The owner/ opposite party has specifically denied in his cross-examination that the deceased was being paid Rs. 4,000/- per month. The Workmen’s Compensation Commissioner took the monthly salary of the deceased at Rs. 2,600/- and in absence of cogent and reliable evidence adduced from the side of the claimant regarding income of deceased, the observation of the lower court on this point cannot be said to be irrational. Therefore, I do not find any error in the finding of the court below while taking the monthly income of the deceased as Rs. 2,600/- In the post mortem report the age of the deceased was given in between 25 to 35, therefore the age of the deceased was has rightly been taken as 30 by court below for the purpose of calculating the dependency of the claimant and thereby calculated the amount of compensation of Rs. 2,70,374/-. The Court below further awarded an amount of Rs. 89,215/- interest for the period 25-8- 2002 to 25-5-2005, the total of compensation being Rs. 3,59,589/-. The learned counsel could not point out mistake in the calculation method adopted by the Court below. Therefore, I do not find any ground to interfere with the impugned award. 12- In view of above facts and circumstances of the case, the appeal as well as the cross objection, lack merit and are liable to be dismissed. 13- Accordingly the appeal is dismissed. 14- The cross objection is also dismissed. The impugned judgment and order dated 24-8-2005 is confirmed. (B.C. Kandpal, J.) ISB