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2002 DIGILAW 466 (KAR)

Siddegowda v. K. Munichinnappa

2002-07-26

K.L.MANJUNATH

body2002
JUDGMENT K.L. Manjunath, J.--This is a claimant's appeal. Claimant was working as a cleaner in a Lorry. On 18.7.1997, during the course of his employment, he sustained injuries in a road traffic accident. Therefore, he presented a claim petition before the Commissioner, Workmen's Compensation, Tumkur. To show the disability, the claimant has produced the certificate issued by the Doctor and considering the evidence adduced by the claimant, the Commissioner has assessed the percentage of loss of earning capacity by 100 %. 2. According to the claimant, he was getting a salary of Rs.1,500/- per month. In addition to that, he was also getting a Bata of Rs.50/- per day. The owner of the lorry has been placed exparte. He has not denied the salary and bata claimed by the claimant. However, the Insurance Company has disputed the said fact. Only on the ground that the claimant did not produce any documentary evidence to show his salary and income by applying the Minimum Wages Act, the Commissioner has held that the claimant was getting a salary of Rs.1,321/-. Based on the same, the compensation amount of Rs.1,74,332-37 has been awarded as compensation. Being not satisfied with the order and award, the present appeal is filed by the claimant. 3. Learned Counsel for the Appellant, relying upon the judgment of this Court reported in Aslam Sirdar Ahmed Bepari Vs. Mohamed Ghouse Kutbuddin Dharwadkar and Another, II (1998) ACC 660 , contends that when the owner and the Insurance Company have not adduced any rebuttable evidence, the Commissioner has committed an error in not considering the evidence adduced by the claimant. Relying upon this judgment, learned Counsel for the Appellant contends hat the Commissioner should have fixed the compensation taking into consideration the maximum amount of Rs.2,000/- as salary of the claimant. 4. Learned Counsel for the Insurance Company contends that the aforesaid judgment cannot be made use of by the Appellant as the Appellant has failed to prove the income. He further contends that the Insurance Company has cross-examined the claimant and in the cross-examination of the claimant, he has categorically admitted that he had no documents to show the salary paid by his employee. In the circumstances, he requests this Court to dismiss the appeal. 5. He further contends that the Insurance Company has cross-examined the claimant and in the cross-examination of the claimant, he has categorically admitted that he had no documents to show the salary paid by his employee. In the circumstances, he requests this Court to dismiss the appeal. 5. Having heard the learned Counsel for the parties, what is required to be considered by this Court in this appeal is "whether the Commissioner" was right in applying the Minimum Wages Act to the case of the claimant and whether the claimant is entitled for compensation in excess of the compensation awarded by the Commissioner". Learned Counsel for the Appellant has produced the deposition of the claimant. On oath, the claimant has stated that he was getting a salary of Rs.1,500/- and in addition to that, he was also getting a sum of Rs.50/- per day as bata. In a similar line, the claim petition has been filed. The owner has not denied the salary paid by him to the claimant. Notice on the owner has been served. When the owner has not contested, it has to be presumed that he has no defense in the matter. The Insurance Company has no knowledge in regard to the actual salary paid by the owner to the claimant. In the normal course, no private individual will issue any Salary Certificate to his employee. He was working as a Cleaner in a lorry. All the documents are to be maintained by the owner, when the owner has not produced the documents, the Commissioner, in the normal course, should have believed the evidence of the claimant. But, without assigning valid reasons, the evidence of the claimant has been disbelieved by the Commissioner. The Commissioner has committed an error in applying the Minimum Wages Act to fix the salary of the claimant. Therefore, I am of the opinion that the evidence of the claimant should have been accepted by the Commissioner and based on the same, the Commissioner should have awarded the compensation. 6. Accordingly, I have to hold that the claimant is entitled for the compensation considering the wages of the claimant as Rs.2,000/- per month as upper limits to be considered under the Workmen's Compensation Act is only Rs.2,000/-. If the multiplier is applied, the claimant would be entitled to Rs.2,63,940/-. 7. Accordingly, this appeal is allowed. 6. Accordingly, I have to hold that the claimant is entitled for the compensation considering the wages of the claimant as Rs.2,000/- per month as upper limits to be considered under the Workmen's Compensation Act is only Rs.2,000/-. If the multiplier is applied, the claimant would be entitled to Rs.2,63,940/-. 7. Accordingly, this appeal is allowed. The compensation awarded by the Commissioner has been enhanced from Rs.1,74,332-37 to Rs.2,63,940/-, which shall carry interest at 12 % p.a., as ordered by the Commissioner.