Sezadmeer Khan And Anr vs Dharmveer Singh And Anr

The appellant has preferred this appeal with the following prayer:-

"It is, therefore, humbly prayed that this appeal may kindly be allowed with cost and the judgment & award dated 31.08.2004, passed by learned Commissioner, Workmen's Compensation Act, Udaipur, in case no.W.C. 5/2002 (A.L.C.), 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% p.a. from the date of accident and penalty of 50% of awarded compensation may kindly be imposed on the respondents.

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 Salamat Khan was driving vehicle TATA Sumo bearing registration No. 27C-5080 for the employer i.e. respondent No.1 from Ahmedabad to Udaipur and at that time the said vehicle collided with Truck No.RJ-27 G-0236 at Shinod, resulting into death of Salamat Khan.

Learned counsel for the appellants submits that it is clear from the record that deceased Salamat Khan was earning Rs.3,000/- per month and Rs.50/- as daily allowance from his employer.

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.

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".

Learned counsel for the appellant has also relied upon the judgment in Baddrudin Vs. Ramchandran & Ors. (S.B. Civil Appeal No.397/2002) decided on 21.03.2018 in which this Hon'ble Court has gone ahead with computation of minimum income as per the assessment in the record.

Learned counsel for the respondents however submits that it is on record that employer himself has stated that Salamat Khan was third driver of the vehicle in question and stated that Rs.1800/- per month as well as Rs.50/- as daily allowance were paid to the Driver.

Upon hearing learned counsel for the parties, this Court is of the opinion that the clear evidence of the employer reflected that the deceased was earning wage of Rs.3300/- per month, which included Rs.1800/- wage and Rs.50/- daily allowance, this Court also notes that the claimants themselves have made statement that the deceased Salamat Khan was earning Rs.3,000/- per month with daily allowances of Rs.50/- per day.

Learned counsel for the respondent has not been able to point out anything contrary to said stand taken by the employer. Thus, this Court directs both the counsels for the parties to reassess the computation of award while taking the income as Rs.3,000/- per month. The joint assessment upon directions as provided by both the parties reads as follows:-

Total Compensation

3000X50/100X215.28 = Rs.3,22,920/-

Already awarded = Rs.2,12,158/-

Enhanced Amount = Rs.1,10,762/-

The learned Commissioner has already awarded Rs.2,12,158/- and thus the claimants are entitled to get further enhanced amount of Rs.1,10,762/-.

The present appeal is allowed and the respondent-Insurance Company is directed to pay the enhanced amount of Rs.1,10,762/- with an interest @ 12% per annum from the date of filing of the claim petition. Looking into the peculiar facts of the case, it is further directed that penalty which has to be paid by the employer is also increased from 10% to 25%.