Sanju @ Santosh Kanwar vs National Insurance Co Ltd

The appellants have preferred this appeal claiming the following relief:- "It is, therefore, humbly prayed that this appeal may kindly be allowed with cost and the judgment & award dated 29.04.2005, passed by learned Commissioner, Workmen's compensation Act, Chittorgarh, in case no. WCC 34/2003, may kindly be modified and compensation may kindly be enhanced up to as claimed by the appellants in their claim petition along with interest of 12% per annum from the date of accident and penalty of 50% of awarded compensation.

Any other relief, which this Hon'ble Court deems fit and proper in the facts & Circumstances of the appeal, may kindly be passed".

The unfortunate accident happened when the deceased Jwala Singh S/o Shanker Lal, in connection with his engagement as Driver with Respondent No.2, was driving Jeep bearing registration No.20P-4768 on 28.08.2003. The collision of the jeep in question with a tractor had resulted into the death of Jwala Singh. 3. Learned counsel for the appellants submits that the claimants stated in their statement of claim that the monthly income of the deceased was Rs.4,000/-.

Learned counsel for the appellants further submits that once apart from the claimants, the independent witness has also supported the claim pertaining to the monthly income of the deceased to be Rs.4,000/-, then it was not open for the learned Authority below to have considered the monthly income of the deceased as Rs.2,500/-.

Learned counsel for the appellants also submits that in the present case, though the appellants produced evidence that the deceased was earning Rs.4000/- per month, but the Insurance Company was not willing to accept the monthly income, and that too, without leading any evidence or by producing independent witness to rebut the same.

Learned counsel for the appellant has relied upon judgment in the case of Minu Rout & Anr. Vs. Satya Pradyumna Mohapatra & Ors. reported in 2013 DNJ SC 863. Paras No.11 & 14 are reproduced as under:-

"11. The case of the appellants is that the accident took place on account of rash and negligent driving of the offending truck by its driver. The offending truck was coming from opposite direction to the car. In the car, there were six persons travelling including the first appellant. The first appellant was examined as PW-1 and other three eye witnesses were also examined as PW-2 to PW-4, who supported the version of PW-1. They have narrated in their evidence that the accident occurred on 08.11.2004. PW-2 has stated in his evidence that the accident took place within 15 feet away from the place, when he was going to his village in his bicycle. Two other eye-witnesses were also examined as PW-3 and PW-4 who have also deposed before the Tribunal stating that Sushil Rout got grievous injuries on account of the accident and was shifted to the Jaipur Hospital, where he was declared dead. They have also deposed that the occurrence of the accident was on account of rash and negligent driving of the truck. There was head on collision between the offending truck and the car. 14. Accordingly, we allow the appeal in the following terms:

I) The impugned judgments and awards of the Tribunal and the High Court are set aside.

II) We award -10,48,400/- with 9% interest per annum payable from the date of filing the application till the date of payment.

III) The compensation awarded shall be apportioned between the appellants - Minu Rout and Sumit Kumar Rout, equally as the remaining appellants Ratnamani Rout and Rohit Kumar Rout died during the pendency of the proceedings and their names have been deleted by the High Court of Orissa on 22.08.2011.

IV) We direct the Insurance Company to deposit 50% of the awarded amount with proportionate interest in any of the Nationalized Bank of the choice of the appellants for a period of 3 years. During the said period, if they want to withdraw a portion or entire deposited amount for their personal or any other expenses, including development of their asset, then they are at liberty to file application before the Tribunal for release of the deposited amount, which may be considered by it and pass appropriate order in this regard. The rest of 50% amount awarded with proportionate interest shall be paid to the appellants by way of a demand draft within six weeks from the date of receipt of a copy of this order after deducting the amount if already paid. There will be no order as to costs". 7. Learned counsel for appellants also submits that learned Court below has committed grave illegality while awarding lower rate of interest @ 6% per annum on the awarded amount.

Learned counsel for the respondents however, while vehemently refuting the submissions advanced on behalf of the appellants, submitted that once the employer of the deceased admitted that the deceased driver was being paid a monthly salary of Rs.2500/-, then there was no question to hold that the monthly income of the deceased was Rs.4,000/- and thus, the learned Court below has not committed any error, so as to warrant any interference by this Court.

After hearing learned counsel for the parties, this Court finds that once the employer has come out with a credible stand in his written statement that he was paying Rs.2,500/- as monthly salary to the deceased, then there is no reason to disbelieve the same. Thus, the learned Authority below has rightly taken employer's version pertaining to the wages into consideration.

Hence, no case for enhancement of the compensation is made out.

However, looking to the facts and circumstances of the case, present appeal is partly allowed to the extent that the rate of interest on the awarded compensation shall be 12% per annum and the penalty of 10% on the awarded compensation as imposed by the learned Commissioner shall be 25% from the date of filing of the claim petition, in the given facts and circumstances.

Needless to observe that the penalty shall be recoverable from the respondent No.2- employer.