Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 2714 of 2008 Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Smt. Savitri Devi & Others Counsel for Appellant :- Nagendra Kumar Srivastava Counsel for Respondent :- Upendra Kumar Tiwari
Hon'ble Saral Srivastava,J.
Heard learned counsel for the parties.
The present appeal has been preferred against the judgement and order dated 08.07.2008 passed by Workmen Compensation Commissioner/Assistant Labour Commissioner, Kanpur Region, Kanpur, whereby the Commissioner has awarded Rs. 3,42,732.98/- as compensation to the respondents for the death of one Ajay Kumar in an accident on 08.07.2005.
While assailing the judgement of the Commissioner, learned counsel for the appellant has contended that there was no evidence on record to establish that the deceased was employed as driver on a tempo no.UP/78/AN/7380 and as such, the claimants respondents had failed to prove the relationship of employee and employer between the deceased and the owner of tempo and as such, the Commissioner has erred in allowing the claim petition. He further submits that the compensation awarded by the Commissioner is on higher side inasmuch as the income of the deceased was not proved and as such, the Commissioner has erred in taking the income of the deceased to be Rs.3160.13/- for the purposes of computing the compensation.
Per contra, learned counsel for the respondents submits that the relationship of employee and employer between the deceased and owner of tempo was proved by the claimants respondents by producing P.W. 2 Phool Singh who had deposed before the Commissioner that the deceased was driver on tempo no. UP/78/AN/7380. He further submits that salary certificate issued by the respondent no.2 was also produced before the before the Commissioner which was duly proved and on the basis of this evidence, the Commissioner recorded a finding that the deceased was employed as driver on tempo no.UP/78/AN/7380.
I have considered the rival submission of the parties and perused the record.
The Insurance Company did not lead any evidence to rebut the evidence of the claimants respondents in respect of employment of deceased as driver on the tempo no.UP/78/AN/7380. Further, though the owner of the tempo i.e. respondent no.3 has denied the employment of the deceased as driver on her tempo and has further stated that one Rajesh Kumar Rathore was employed as driver on her tempo no. UP/78/AN/7380 bur Rajesh Kumar Rathore had appeared before the Commissioner and deposed on oath that he was not employed as driver on tempo no. UP/78/AN/7380 and in fact he was employed as driver on tempo no. UP/78/AN/6294 owned by one Awadhesh Kumar. The employment of Rejesh Kumar Rathore as driver on tempo no. UP/78/AN/6294 was also corroborated by the owner of the tempo Awadhesh Kumar before the Commissioner who accepted the employment of Rajesh Kumar Rathore as driver on his tempo.
After considering the aforesaid evidence on record, the Commissioner held that the deceased was employed as driver on tempo no.UP/78/AN/7380. The finding of the Commissioner in respect of employment of the deceased is based on proper appreciation of evidence on record and is finding of fact which cannot be interfered with in appeal.
So far as the contention of the learned counsel for the appellant in respect of quantification of compensation is concerned, it is established that the deceased was employed as driver on tempo no.UP/78/AN/7380 and the Commissioner for the purposes of computing the compensation has taken minimum wages as notified by the State Government prescribing the minimum wages. Thus, in view of the said fact, the assessment of compensation holding the income of the deceased to be Rs.3160.13/- on the basis of minimum wages as notified by the State Government cannot be said to be illegal.
The appeal under Section 30 of the Workmen's Compensation Act is maintainable only on the ground of substantial question of law. In the present case, there is no substantial question of law which needs to be answered by this Court. Thus, the appeal lacks merit and is accordingly dismissed. There shall be no order as to cost.
Order Date :- 19.12.2018 S.Sharma