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2007 DIGILAW 193 (UTT)

SUNDARI DEVI v. RAJENDER SINGH

2007-04-18

RAJESH TANDON

body2007
RAJESH TANDON, J. ( 1 ) HEARD Sri Rakesh Thapliyal counsel for the appellants, Sri Rajendra Dobhal counsel for respondent No. 1 and T. A. Khan counsel for responded No. 2. ( 2 ) PRESENT appeal has been filed against the judgment and award dated February 25, 2000 passed by the Commissioner, Workmen's compensation, Tehri Garhwal awarding a sum of Rs. 1,44,105. 00 as compensation to the claimant/ appellants. Briefly stated the claimant/appellants have filed a claim petition before the Commissioner, Workmen's compensation Commissioner, Tehri Garhwal for the grant of compensation on account of the death of Kishan Singh in a motor vehicle accident during his employment in the bus owned by respondent No. 1 Sri Rajendra Singh. According to the claimants deceased Kishan singh was driver of Bus No. USQ 862, which met with accident on January 31, 1998 at maindkhal, District Tehri Garhwal. Respondent No. 2 Rajendra Singh was the owner of the bus and deceased was his employee. The deceased was getting Rs. 3,000/- per month as salary. ( 3 ) THE claim petition was contested by the opposite parties respondents. Respondent No. 1 rajendra Singh has filed written statement and admitted the factum of accident and death of kishan Singh driver along with nine other passengers in the accident. He has stated that he visited the place of accident and information of the accident was sent to the New India assurance Company who was the insurer of the bus that met with accident. He has stated that he was giving Rs. 1,500/- as salary to deceased kishan Singh besides dearness allowance. ( 4 ) RESPONDENT No. 2 the New India assurance Company in its written statement has denied the averments regarding factum of the accident and death of the deceased Kishan singh for want of knowledge. The Insurance company has denied the liability to pay the penalty. The owner of the vehicle has flouted the terms and conditions of the insurance policy and as such Insurance Company is not liable to pay compensation. ( 5 ) THE claimants examined P. W. 1 Smt. Sundari Devi, who has stated on oath that her husband Kishan Singh, was employed as a driver in Bus No. USQ 862. The bus met with accident and her husband died due to the injuries sustained in the accident. ( 5 ) THE claimants examined P. W. 1 Smt. Sundari Devi, who has stated on oath that her husband Kishan Singh, was employed as a driver in Bus No. USQ 862. The bus met with accident and her husband died due to the injuries sustained in the accident. At the time of death her husband was 37 years old and he left behind three children. His husband was getting rs. 3,000/- per month as salary out of which he was contributing Rs. 2000/- to Rs. 2,500/- per month for the family expenses. The claimants have filed copy of post mortem report, F. I. R. and copy of driving licence of the deceased. ( 6 ) THE opposite parties have examined d. W. 1 Rajendra Singh. He has stated on oath that he is the registered owner of bus No. USQ 862. On January 31, 1998 his bus was being driven by Kishan Singh. The bus met with accident near Chham, District Tehri Garhwal. He has stated that he was giving Rs. 1500/- per month to Kishan Singh as salary besides Rs. 50/- per day as dearness allowance. ( 7 ) AFTER considering the evidence on record the Commissioner has held that deceased Kishan Singh was the driver of bus no. USQ 862, under the employment of respondent No. 1 Rajendra Singh and he died in the accident. He was getting Rs. 1,500/- per month as salary. The claimants are the dependents of the deceased and are entitled to get compensation. ( 8 ) SO far as the compensation is concerned the Commissioner has held that the deceased was getting Rs. 1500/- per month. At the time of his death he was 37 years old and thus as per provisions of Workmen's Compensation Act, the Commissioner has multiplied the half of monthly wages by relevant factor of 192. 14, which comes to Rs. 1,44,105. and thus awarded a compensation of Rs. 1,44,105. 00 to the claimants against the New India Assurance company. ( 9 ) FEELING aggrieved the claimants have preferred the present appeal for enhancement of the compensation. The contention of the appellants is that the commissioner, Workmen's Compensation act, Tehri Garhwal has not rightly calculated the compensation and the monthly salary of the deceased has wrongly been assessed to be Rs. 1,500/- while the deceased was getting Rs. 3,000/- per month as salary. The contention of the appellants is that the commissioner, Workmen's Compensation act, Tehri Garhwal has not rightly calculated the compensation and the monthly salary of the deceased has wrongly been assessed to be Rs. 1,500/- while the deceased was getting Rs. 3,000/- per month as salary. Thus the compensation ought to have been worked out on the basis of Rs. 3,000/- as salary. The Claims Commissioner has presumed the salary of the deceased on the basis of written statement filed by respondent No. 1 Sri rajendra Singh, who was the owner of the bus and employer of deceased Kishan Singh. Respondent No. 1 has submitted in his written statement that he was paying Rs. 1500/- per month to the deceased driver besides dearness allowance. In his statement he has unequivocally stated that he was paying Rs. 1,500/- per month to the deceased as salary besides Rs. 50/- per day as dearness allowance. D. W. 1 Rajendra Singh has stated as under: "vernacular matter omitted" in his cross examination this witness has submitted that he was paying total Rs. 3,000/-per month to deceased Kishan Singh. He stated in the following words: "vernacular matter omitted" ( 10 ) THUS from the assertion made by the owner of the bus D. W. I Rajendra Singh, it is amply clear that he was paying Rs. 1500/- per month to the deceased as salary along with Rs. 50/- per day or Rs. 1500/- per month as dearness allowance. Thus he was paying Rs. 3,000/- per month to the deceased in total I find that the learned Commissioner has erred by presuming the monthly salary of the deceased to be Rs. 1,500/- while it should be Rs. 3,000/ -. ( 11 ) SECTION 4 (1) of Workmen's compensation Act, provides as under: "subject to the provisions of this Act, the amount of compensation shall be as follows, namely: (a) Where death results froman amount equal to fifty per cent of the monthly wages or the deceased workman multiplied by the relevant factor or an amount of fifty thousand rupees, whichever is more. " ( 12 ) AT the time of accident the age of the deceased Kishan Singh was 37 years. According to Schedule IV the relevant factor for 37 years is 192. 14. Thus by multiplying half of the monthly wages i. e. 1500 by 192. 14 the total compensation comes to Rs. 2,88,210. 00. " ( 12 ) AT the time of accident the age of the deceased Kishan Singh was 37 years. According to Schedule IV the relevant factor for 37 years is 192. 14. Thus by multiplying half of the monthly wages i. e. 1500 by 192. 14 the total compensation comes to Rs. 2,88,210. 00. ( 13 ) IN view of the above, the claimants are entitled to get Rs. 2,88,210/- as compensation along with interest @ 6% per annum. The impugned award of Rs. 1,44,105. is accordingly modified. ( 14 ) CONSEQUENTLY, the appeal is allowed. The impugned award is modified to Rs. 12,88,210/- along with pendente lite and future interest @ 6% per annum. No order as to costs. ( 15 ) LET the lower Court record be sent to the Court concerned along with a copy of judgment for compliance. --- *** --- .