JUDGMENT B.P. Katakey, J. 1. This appeal by the claimants under Section 30 of the Workmen's Compensation Act, 1923 ('the Act') is directed against the order dated 25.6.2004 passed by learned Commissioner, WC, West Tripura at Agartala in Case No. TS (WC) 22/2003 awarding compensation of Rs. 1,78,615 for the death caused to the son of the claimants arising out of and in course of his employment under the present Respondent No. 1 in a motor accident that occurred on 20.4.2003 and directing payment of interest @ 12% per annum from the date of accident till the date of payment under Section 4(1)(a)and 4A(3), respectively, of the Act. 2. The Appellants herein filed an application under Section 4 of the Act before the learned Commissioner, praying for compensation of Rs. 4,50,000 contending, inter alia, that their son Pritam Banik was the driver of a truck bearing Registration No. TR-01/A-1664 belonging to the Respondent No. 1 which met with an accident on 20.4.2003 resulting in his death arising out of and in course of his employment. The said application has been registered as Case No. TS (WC) 22/2003. In the said proceeding, the Divisional Manager of the Respondent-Insurance Company has also been arrayed as Respondent No. 2, contending that there is a contract of insurance between the owner of the vehicle, i.e., the employer of the claimants' son and the Insurance Company relating to the payment of compensation payable under the provisions of the Act. In the said claim application the claimants have also claimed that their son was aged about 28 years and his monthly wages was Rs. 4,500. The Respondent No. 1, upon receipt of the notice, entered appearance and filed the reply to the claim made by the claimants, admitting the factum of accident, employment under him and the death of the son of the claimants in the accident which arose out of and in course of his employment, apart from the monthly wages. In the said reply, it has been stated by the owner/Respondent No. 1 that the workman was being paid Rs. 150 per day. The owner has also not disputed the age of the workman. The Insurance Company in the written objection filed has denied all the allegations made in the claim application, including; the Issuance of the insurance coverage. 3. In the said reply, it has been stated by the owner/Respondent No. 1 that the workman was being paid Rs. 150 per day. The owner has also not disputed the age of the workman. The Insurance Company in the written objection filed has denied all the allegations made in the claim application, including; the Issuance of the insurance coverage. 3. The claimant No. 1 in support of their claim examined himself and was cross-examined by the owner/Respondent No. 1. The Insurance Company did not cross-examine him. The owner of the vehicle examined himself and was cross-examined by the Insurance Company. The claimants in support of their claim have also proved the driving licence FIR as well as the Identity Card (Employment Registration Card) issued by the Govt. of Tripura in the Labour and Employment Department, registering his name in the Employment Exchange and reflecting his date of birth as 10.5.1974. The Insurance Company though in the written statement did not admit the issuance of insurance coverage in respect of the vehicle in question, they, however, during the course of the proceeding did not press such plea. As it appears from the materials available on record that the issuance of insurance - coverage has been admitted by the Insurance Company - in respect of the said vehicle at the relevant point of time. 4. The learned Commissioner, WC, upon appreciation of the evidences on record, passed the award as aforesaid, calculating the amount of compensation payable by taking the relevant factor enumerated in Schedule IV of the Act on the basis of the age of the claimants and not on the basis of the age of the workman and also by taking the monthly income of the deceased workman at Rs. 3,000 by holding that Rs. 4,500 was highly excessive. 5. The claimants thereafter filed an application seeking review of the amount of compensation awarded by the learned Commissioner, which has been registered as Civil Misc. Case No. 155/04, by taking the relevant factor under Schedule IV on the basis of the age of the workman and his monthly income as Rs. 4,500 contending that the said version has been admitted by the owner of the vehicle in the written reply filed, but in his deposition, it has been wrongly recorded Rs. 50 per day. Case No. 155/04, by taking the relevant factor under Schedule IV on the basis of the age of the workman and his monthly income as Rs. 4,500 contending that the said version has been admitted by the owner of the vehicle in the written reply filed, but in his deposition, it has been wrongly recorded Rs. 50 per day. The owner of the vehicle (Respondent No. 1 herein) also filed an affidavit in the said proceeding before the learned Commissioner stating that the daily wages of the workman was Rs. 150, which has been wrongly recorded as Rs. 50 while recording his deposition before the learned Commissioner. The learned Commissioner, however, in view of the delay caused in filing such application, has rejected the same vide order dated 9.8.2004. Hence the present appeal. 6. As no substantial question of law was formulated while admitting the appeal vide order dated 14.3.2005, which is the condition precedent under Section 30 of the Act, the following substantial questions of law have been framed today and the appeal has been heard on merit on such substantial questions of law, as agreed to by the learned Counsel for the parties: (a) Whether the learned Commissioner, WC while awarding the compensation under the provisions of the WC Act, 1923, more particularly under Section 4(1)(a) thereof, has to take into account the age of the workman for the purpose of ascertaining the relevant factor in terms of the Schedule IV? and (b) Whether the learned Commissioner, WC erred in law in taking the monthly income of the deceased workman at Rs. 3,000, in view of the, positive statement of the claimants in the claim application supported by the evidence of claimant No. 1 and the objection of the owner that the monthly income of the workman was Rs. 4,500? 7. I have head Mr. S. Deb, learned senior counsel for the Appellants; Mr. T.K Deb, learned Counsel for the Respondent No. 1 and Mr. S.M. Ali learned Counsel for the Respondent No. 2. 8. Mr. 4,500? 7. I have head Mr. S. Deb, learned senior counsel for the Appellants; Mr. T.K Deb, learned Counsel for the Respondent No. 1 and Mr. S.M. Ali learned Counsel for the Respondent No. 2. 8. Mr. Deb, learned senior counsel, referring to the provisions contained in Section 4(1)(a) and the Explanation-I thereof as well as the Schedule IV of the Act, has submitted that it is evident from the said provisions that the relevant factor for the purpose of calculating the amount of compensation payable under the Act has to be ascertained solely on the basis of the age of the workman and not on the basis of the age of the claimants, but the learned Commissioner in the instant case has taken the relevant factor depending on the age of the claimants and not the age of the workman and as such, the amount of compensation passed by the learned Commissioner, WC is contrary to the provisions of the Act. 9. In support of the 2nd substantial question of law formulated, Mr. Deb has submitted that it is evident from the statements made in the application seeking compensation and the deposition of the claimants that the workman was being paid Rs. 150 per day, i.e., Rs. 4,500 per month, which has also been admitted by the owner in his reply filed before the learned Commissioner in the said proceeding. It has been submitted that due to mistake in recording the deposition of the opposite party No. 1 (owner) who though stated in his written reply that the daily wages of the workman was at Rs. 150 the same has been recorded as Rs. 50, which has also been admitted by the owner in the affidavit filed in Misc. Case No. 155/04. According to Mr. Deb, there is no reason as to why such positive statement of the claimants, in the absence of any cross-examination on that point by any of the opposite parties, should not be accepted. It has been submitted that the learned Commissioner has taken Rs. 3,000 per month without there being any basis for that purpose. It has therefore been submitted that the amount of compensation may accordingly be enhanced by taking the monthly wages of the workman as Rs. 4,500. 10. Mr. It has been submitted that the learned Commissioner has taken Rs. 3,000 per month without there being any basis for that purpose. It has therefore been submitted that the amount of compensation may accordingly be enhanced by taking the monthly wages of the workman as Rs. 4,500. 10. Mr. T.K. Deb, learned Counsel for the Respondent No. 1, supporting the submission of the learned senior counsel for the Appellant, has submitted that the owner has admitted in his written reply as well as in the affidavit filed in the Misc. Case before the learned Commissioner that the wages of the workman was Rs. 150 per day and, therefore, there is no reason as to why the learned Commissioner took the monthly income of the deceased workman at Rs. 3,000. It has further been submitted that it is apparent from the provisions of Section 4 as well as the Schedule IV of the Act that the age of the workman is the basis on which the relevant factor is to be ascertained and not the age of the claimants, as has been done by the learned Commissioner in the instant case. 11. Mr. S.M. Ali, learned Counsel, on the other hand, has submitted that the learned Commissioner has not committed any illegality in taking the age of the claimant for ascertaining the relevant factor while calculating the amount of compensation awardable under Section 4(1)(a) of the Act. It has further been submitted that in view of the positive statement on oath by the downer of the vehicle (Respondent No. 1), the learned Commissioner ought to have taken the monthly wags of the victim at Rs. 1,500, but since the Insurance Company has not filed any appeal challenging the order of compensation passed by the learned Commissioner, it has to be taken at Rs. 3,000 per month, as has been taken by the learned Commissioner, Mr. Ali, therefore submits that the appeal deserves to be dismissed. 12. Section 4 of the Act stipulates the amount of compensation payable in respect of the death or bodily injuries caused or suffered by a workman arising out of and in course of his employment. In the instant case, the accident and the resultant death of the son of the claimants arising out of and in course of his employment as driver of the motor vehicle belonging to the Respondent No. 1 are not in dispute. In the instant case, the accident and the resultant death of the son of the claimants arising out of and in course of his employment as driver of the motor vehicle belonging to the Respondent No. 1 are not in dispute. Section 4(1)(a) of the Act provides that where the death results from the injury, an amount equal to 50% of the monthly wages of the deceased workman multiplied by the relevant factor; or an amount of Rs. 80,000, whichever is more, is payable as compensation. Explanation-I provides that for the purpose of Clauses (a) and (b) of Section 4 "relevant factor" in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due. Explanation-II further provides that where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of Clause (a) and Clause (b) shall be deemed to be four thousand rupees only. First column of the Schedule IV of the Act indicates the completed years of age on the last birth day of the workman immediately preceding the date on which the compensation fell due and the column 2 provides the factors against the age. 13. It is, therefore, evident from such provisions of law that the relevant factor for the purpose of calculating the amount of compensation payable under the provisions of Section 4 has to be ascertained on the basis of the completed years of age on the last birth day of the workman immediately preceding the date on which the compensation fell due and not of the claimants. In the instant case, the workman admittedly completed 28 years of age on the last birth day immediately proceeding the date on which the compensation fell due. The learned Commissioner, however, while ascertaining the relevant factor for the purpose of calculating the amount of compensation payable has taken the age of the claimant No. 2 i.e., the mother of the workman being 60 years by taking the relevant factor as 117.41 instead of 211.79, the completed years of age of the workman being 28 years. 14. The learned Commissioner, however, while ascertaining the relevant factor for the purpose of calculating the amount of compensation payable has taken the age of the claimant No. 2 i.e., the mother of the workman being 60 years by taking the relevant factor as 117.41 instead of 211.79, the completed years of age of the workman being 28 years. 14. It is also evident from the application seeking compensation filed before the learned Commissioner as well as the reply file by the owner of the vehicle i.e., the employer, that the monthly wages of the workman was Rs. 4,5000, which has also been supported by the evidence of the claimant witness No. 1, who has stated in his deposition that the monthly wages of the workman was Rs. 4,500 to Rs. 5,000, but none of the opposite parties has cross-examined this witness on this point. Such statement on oath has remained unrebutted. However, though the owner of the vehicle (Respondent No. 1) in the written statement admitted that the daily wages of the workman was Rs. 150, it has been recorded in his deposition that his daily wages was Rs. 50. Such statement, as it appears from the proceeding in Civil Misc. Case No. 155/04, is nothing but the slip of pen as the owner in the affidavit filed in the said Misc. Case has also admitted on oath that he never stated that the daily wages of the workman was Rs. 50 which in fact was Rs. 150, as stated in his reply filed before the learned Commissioner. I do not find any reason as to why the learned Commissioner has taken the monthly wages at Rs. 3,000 when there is positive uncontroverted evidence on record that the monthly wages of the deceased workman was Rs. 4,500. Such positive statement, in the absence of any cross-examination, has to be accepted, more so in the instant case keeping in view the reply filed by the owner against the application filed seeking compensation as well as the affidavit filed in the aforesaid Misc. Case. 15. In view of the aforesaid discussion, I am of the view that the claimants are entitled to the 50% of the monthly wages i.e., 50% of Rs. 4,000, in view of Explanation-II to Section 4(1), which is to be multiplied by the relevant factor i.e., 211.79. Therefore, the claimants are entitled to Rs. 4,23,580. Case. 15. In view of the aforesaid discussion, I am of the view that the claimants are entitled to the 50% of the monthly wages i.e., 50% of Rs. 4,000, in view of Explanation-II to Section 4(1), which is to be multiplied by the relevant factor i.e., 211.79. Therefore, the claimants are entitled to Rs. 4,23,580. The said amount shall carry interest @ 12% per annum on expiry of 1 (one) month from the date when it fell due under Section 4A(3)(a) of the Act. While calculating the amount towards interest payable, the amount already paid shall be taken into account. There being no dispute relating to the insurance coverage, the Insurance Company is directed to satisfy the award. 16. The amount of compensation awarded by the learned Commissioner is accordingly enhanced to the extent indicated above. 17. In the result, the appeal stands allowed. No costs. Send down the records forthwith. Appeal allowed