Chattisgarh High Court
National Insurance Co Ltd vs Smt Shanti Bai & Others on 25 November, 2010
Author: I. M. Quddusi
Bench: I. M. Quddusi
HIGH COURT OF CHATTISGARH BILASPUR
MAC No 564 of 2010
National Insurance Co Ltd
...Petitioners
Versus
Smt Shanti Bai & others
...Respondents
! Shri Qamrul Aziz Advocate with Shri G V K Rao Advocate for the appellant
^ Shri Jitendra Gupta Advocate for the respondent No 3 and None for the respondents No 1 and 2 despite service of notice
CORAM : Honble Shri I M Quddusi & Honble Shri Justice N K Agarwal JJ
Dated : 25/11/2010
: Judgement
APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988
ORDER (Oral)
( Passed on this 25th day of November, 2010 ) Per I. M. Quddusi, J.
1. This appeal has been filed by the National Insurance Company against the impugned award dated 26.3.2010, passed by the Commissioner for Workmen Compensation, Labour Court, Durg in Case No. 83/2008 W. C. Act (Fatal), awarding Rs. 3,32,580/-
along with interest at the rate of 10% per annum.
2. We have heard learned counsel appearing for the parties, perused the lower Court record as well as the findings given in the impugned award.
3. The brief facts, in nutshell, are that the respondents No. 1 (widow) and 2 (mother), had filed a claim case under Section 22 of the Workmen's Compensation Act, 1923 on the ground that they were dependent on the deceased Bhagirathi, who died in an accident on 4.5.2008, while he was driving the vehicle C.G. 04-ZC/0129, which was owned by the respondent No. 3 and insured by the present appellant. The submission of the claimants was that Bhagirathi was working as Driver for driving the vehicle, owned by the respondent No.3. He was getting Rs. 4000/- per month as salary and Rs. 100/- as allowance for going out side the station. On the fateful day he had gone to get the vehicle repaired and while returning back to village Mau, near village - Bitkuli turn the vehicle got out of control and thereby the accident had occurred.
4. The Commissioner, having regard to the facts situation and the evidence on record, assessed the monthly income of the deceased as Rs. 4000/- and looking to the age of the deceased as 46 years, applied the factor 166.29. After deducting 50% of the monthly wages i.e. Rs. 2000/-, the compensation of Rs. 3,32,580/- was awarded to the claimants with interest at the rate of 10% per annum.
5. The employer, namely Gurdeep Singh S/o Kesher Singh, came in the witness box, who has stated that the deceased was engaged as driver in his vehicle bearing registration No. C.G. 04-ZC/0129 and was working since last about two - three years. He was engaged on the salary at the rate of Rs. 3000/- per month. He was also being given Rs. 50/- as allowance towards personal expenses whenever he was deputed to go outside the station. In the cross-examination he had stated that on every Sunday and on the day of some festival he had been keeping holiday and his vehicle did not remain in use. Therefore, he also deduct the wages of Rs. 100/- from the wages of the driver and his vehicle used to go out for 5 to 7 days in a month for which he used to give Rs. 50/- per day to the Driver only for that period towards personal expenses.
6. The widow of the deceased in her statement before the Commissioner Workmen Compensation stated that her husband was drawing Rs. 4000/- per months and Rs. 100/- per day allowance for personal expenses, though on a suggestion, made on behalf of the non-applicant, that her husband was getting only Rs. 3000/- as salary and for going out he was given personal expenses of Rs. 50/- per day, she denied that suggestion. However, she had stated that the age of her husband was 40 years at the time of accident. Learned Commissioner did not give any finding about the income of the deceased and only on the basis of the statement of the widow of the deceased the income of the deceased was assessed as Rs. 4000/- per month. Though, the age of the deceased, it appears, as stated by his widow, was not taken into consideration and the age was assessed as 46 years. Therefore, in our opinion it is a case of no evidence regarding the income of the deceased as there was no occasion for the Tribunal to not to pay attention on the statement of the employer. No reason has also been given for ignoring the statement of the employer and therefore this appeal involves a substantial question of law :
Whether the Commissioner for Workmen Compensation had erred in assessing the monthly income of the deceased as Rs. 4000/- per month, whereas the employer namely Gurdeep Singh deposed that the deceased was receiving Rs. 3000/- per month as salary ?
7. It is also to be noticed that the employer was not cross-
examined by the claimants or other non-applicants on the point of monthly salary of the deceased. There was no suggestion from the side of the claimants that the monthly salary of the deceased was not Rs. 3000/- per month and it was Rs.
4000/- per month. Therefore, there was no occasion for the Commissioner Workmen Compensation to ignore the statement of the employer and give a perverse finding only on the basis of the statement of the widow of the deceased, who could not have a first hand information regarding the payment of salary.
8. In view of the above, the assessment of monthly salary of the deceased as Rs. 4000/- by the Commissioner is perverse and is set-aside. We assess the monthly salary of the deceased as Rs. 3000/- per month. Considering the age of the deceased as 46 years the factor of 166.29 would be applicable and after deducting 50% of the wages, it comes to Rs. 1500/- per month. Therefore, by applying the factor 166.29, the amount of compensation comes to Rs. 2,49,435/-.
9. Further, the Commissioner has also erred in awarding the interest at the rate of 10% per annum, as in Section 4-A of the Workmen's Compensation Act, 1923 the minimum interest is given as 12% per annum from the date the amount became due.
10. There is no evidence on record as to when the notice was served upon the employer and the amount became due and therefore, we are of the opinion that the claimants should be entitled to get the interest at the rate of 12% per annum from the date of filing of the claim petition before the Commissioner for Workmen Compensation.
11. In view of the above, we allow this appeal in part, modify the impugned award dated 26.3.2010 and modify amount of compensation as well as the rate of interest and held that the claimants are entitled to get of Rs. 2,49,435/-. The amount of compensation would carry interest at the rate of 12% per annum from the date of filing of the claim petition before the Commissioner till its payment. No order as to costs.
J U D G E