IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 587 OF 2006 Smt. Aruna Devi and 3 others .. Appellants. Versus The Oriental Insurance Company Ltd. and another .. Respondents. Mr. Yogesh Pacholia, Advocate for the appellants. Mr. V.K. Kohli, Senior Advocate, for the respondent No.1. Mr. P. Pandey, holding brief of Mr. R.P. Nautiyal, Advocate for respondent No.2. Dated: 23-7-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 30 of Workmen Compensation Act, 1923, has been preferred against the judgment and award dated 28-6-2006, passed by Workmen’s Compensation Commissioner/District Magistrate, Rudraprayag, in WCC Case No. 04 of 2004. 2- Brief facts of the case, giving rise to this appeal, are that Dayal Singh was employed as driver on Truck No. U.P. 07-K- 9849. On 10-12-2003 at about 3.30 A.M. the said truck met with accident near Petrol Pump Rudraprayag, and its driver Dayal Singh has died. At the time of accident the deceased was 41 years of age and he was getting Rs. 4,000/- per month as salary. Therefore, the claimants, being widow and children of the deceased filed application for compensation before the Workmen’s Compensation Commissioner, Rudraprayag. 3- The Opposite Party No.1, owner of offending truck filed his written statement and denied the allegations made in the petition. He alleged that exorbitant amount of compensation has been claimed. He 2 further alleged that the offending truck was insured with Oriental Insurance Company for comprehensive liability, therefore, the compensation, if any, is liable to paid by the insurer of the vehicle. 4- The opposite party No.2, Oriental Insurance Company Ltd. also contested the petition by filing its written statement. The insurance company alleged that the driver was sleeping in the truck and the truck was being driven by its conductor Pushkar Singh at the time of accident, who had no driving license. Therefore, breach of insurance policy was there. Therefore, the insurance company is not liable to pay any amount towards compensation. 5- The learned Workmen’s Compensation Commissioner framed relevant issues in the petition. Parties adduced evidence in support of their case. Thereafter the learned Commissioner, after having heard learned counsel for the parties and perusing the evidence on record, awarded a sum of Rs. 2,64,160/- as compensation against the Oriental Insurance Company. The learned Commissioner also directed that the payment of the compensation should be made up to 14.8.2006, failing which from the date of award interest @ 10% per annum shall be payable on the awarded amount. 6- Feeling aggrieved, the claimants/appellants have preferred this appeal for enhancement. 7- The learned counsel for the appellants has submitted that the learned Commissioner has committed gross error in determining the daily wages of the deceased for assessing the compensation and arbitrarily 3 fixed the salary of the deceased to the tune of Rs. 2,960/- per month instead of Rs. 4,000/-. Therefore, the compensation should be enhanced after assessing it at a monthly salary of Rs. 4,000/-. 8- On the other hand learned counsel for the Insurance Company has submitted that the claimants have not proved the salary of the deceased before the learned Workmen’s Compensation Commissioner by adducing reliable and documentary evidence, therefore, the Commissioner was justified in taking into account the wages prevalent at the relevant period. He urged that the appeal for enhancement has no substance and the is liable to be dismissed. 9- Perusal of record reveals that the learned Workmen’s Compensation Commissioner has framed issue No. 4 on the point of salary of the deceased. The claimants did not file any salary certificate to prove the income of the deceased. Although the claimants have alleged that the deceased was getting Rs. 4,000/- per month as salary and the owner of the offending truck has also admitted in his W.S. this fact, but neither any salary certificate has filed nor the owner of the offending truck has appeared in the witness box to depose this fact, and the same could not be legally proved, therefore, in absence of any plausible evidence on record, it cannot held that the deceased was getting salary of Rs. 4,000/- per month. The learned Commissioner has, therefore, assessed the dependency on the wages prevalent during the period in question. However, the Notification issued for minimum wages shows that the minimum wages for a skilled labour, which covers a driver also, is Rs. 3,215/- per month. Therefore, the Workmen’s Compensation Commissioner fell in error in calculating the amount of 4 compensation on the basis of Rs. 2,960/- per month. He should have calculated the amount of compensation on the basis of income of the deceased on a minimum wages of Rs. 3,215/- per month. The Workmen’s Compensation Commissioner held that the deceased was 42 years of age at the time of his death, which is based on evidence on record. Therefore, the compensation should have been awarded as Rs. 3,215/- X 178.49 = 2 Rs. 2,86,920/-. The trial court also fell in error in awarding conditional interest @ 10% per annum. The rate of interest is certainly on lower side in view of the provisions of Section 4-A (3)(a) of the Workmen’s Compensation Act and it should be 12% per annum from the date of filing the petition till the date of actual payment. 10- For the reasons recorded above, the appeal is liable to be partly allowed. 11- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 28-6-2006 is modified up to the extent that the claimants are awarded compensation of Rs. 2,86,920/- along with interest @ 12% per annum from the date of filing the petition till the date of actual payment, payable by Oriental Insurance Company, instead of Rs. 2,64,160/- along with conditional interest @ 10% per annum, as has been awarded by the trial court. (B.C. Kandpal, J.) ISB