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Judgment
. Heard Ms. Anita Mategaonkar, learned Counsel for the Appellant and Mr. Vishwa Gadbaile, learned Counsel for the Respondent No.3.
This Appeal is arising out of the Judgment and order dated 23/10/2007 passed by the Commissioner, under Workman’s Compensation Act, Yeotmal in WCA Case No. 22/2005. 3. On perusal of the record it reveals that the deceased Bhimrao Dhanu Pawar was working as a driver on the Tractor No. MH-29/C-2032 and Trolley No. MH-29/5332 of the Respondent No.3. On the day of incident, at the instance of Respondent No.3, deceased Bhimrao took the Tractor-Trolley to workshop for repairing the tyre and in the said workshop, while one person was inflating the tyre, due to excess inflation the rim of the tyre skids out of the ring and struck to the head of the deceased, as a result of which, deceased suffered grievous injury and succumbed to the death. The Respondent Nos.1 and 2 being widow and son of the deceased Bhimrao, filed the proceeding before the Commissioner under Workman’s Compensation Act for grant of compensation of Rs.2,19,910/-.
Before the Commissioner, Respondent No.1 entered into the witness-box and established that deceased was earning Rs.3000/- per month and working in the employment of Respondent No.3. It is also stated that the owner of the vehicle has asked him to get repair the tyre of the vehicle. As such, during the course of his duty, accident caused, and therefore, the Respondent Nos.1 and 2 being legal heirs of the deceased, are entitled for compensation in the matter.
On the part of the present Appellant, no evidence was recorded before the Labour Commissioner. The owner of the vehicle admitted before the Labour Commissioner that deceased was working with him and he was paying monthly salary. She also stated that he has paid the lumpsum amount of Rs. 15,000/- to the Respondent No.1 and 2 after the death caused to the deceased in the accident.
It is seen from the record that the Tractor and Trolley, of which the deceased was doing repairing work, was duly insured with the present Appellant/Insurance Company and the period of its validity was between 28/12/1998 to 27/12/1999. This fact is not denied or controverted before the Labour Commissioner.
In the light of this factual position, the learned Labour Commissioner has decided the matter and thereby awarded compensation of Rs.3,25,365/- to the Respondents, penalty of Rs.1,62,683/- and funeral charges of Rs.2500/-.
In the background of abovesaid factual position, the Appellant/Insurance Company has preferred the Appeal before this Court. This court, by order dated 28/7/2008 admitted the Appeal on the following substantial questions of law :
“(i)Whether the learned trial Judge has rightly held that the deceased was having monthly salary of Rs.3000/- only on the strength of the evidence of Respondent No.1?
(ii)Whether the learned trial judge has rightly held that the accident had occurred during the course of employment?”
In view of the above questions of law framed by this Court, I have dealt with the questions framed in the present matter as under :
In respect of first question, ‘Whether the deceased was having monthly salary of Rs.3000/- or not?’, it is pertinent to note that the Respondent No.1 has specifically deposed before the Labour Commissioner that her husband was earning Rs.3000/- per month. The accident was taken place on 27/2/1999. At that time, considering the fact that any labour, who was earning Rs.100/- per day, normally fetch the amount of Rs.3000/- per month. Therefore, there is no reason to disbelieve the statement made on oath by the Respondent No.1. So also if the Appellant is raising the issue that deceased was not earning Rs.3000/- per month, it was necessary for the Appellant/Insurance Company to place on record the concrete evidence to establish the fact that the deceased was not earning Rs.3000/- per month. However, admittedly the Insurance Company did not examine any witness in rebuttal of the facts which are brought on record by the Respondent No.1 in her evidence.
It will be useful to consider the Judgment of the Honb’le Supreme Court of India in Civil Application No.6152/2021 arising out of the SLP (C) No. 6466/2019 (Chandra @ Chanda V/s Mukesh Yadav & Others), wherein the Hon’ble Supreme Court has observed as under :
“In absence of the documentary evidence on record some amount of guesswork required to be done. But, at the same time, the said guesswork should not be totally detached from reality. If the Claimants are unable to prove the documentary evidence to show the monthly income, the same does not justify adoption lowest tier of minimum wages while computing the income. There is no reason to discard the oral evidence of the wife of the deceased, who has deposed monthly earning of the deceased.”
Considering the specific observation of the Hon’ble Supreme Court of India, I am of the opinion that there is no illegality on the part of the learned Labour Commissioner while holding that deceased was earning Rs.3000/- per month.
In respect of another issue, ‘whether the accident had occurred during the course of employment or not?’, the owner of the vehicle, who is the best person in the matter, has filed reply before the Commissioner and in his reply (Exhibit-56), he has categorically admitted the fact that deceased was working with him. He was paying him the regular salary and his death was caused due to the accident . He has paid amount of Rs.15,000/- to the family of the deceased. This fact itself demonstrates that owner of the vehicle was aware that only because during the course of employment the accident has been occurred and death was caused to his employee, therefore, he has paid Rs.15,000/- as an amount to help the family members of the deceased. Hence, there is no reason to disbelieve that accident was not occurred during the course of employment.
In view of abovesaid reasoning to the questions framed by this Court, I am of the opinion that there is no need of interference in the order of the Labour Commissioner, and accordingly, present Appeal stands dismissed.
The learned Counsel for Appellant states that the entire amount has been deposited with the Commissioner under Workman’s Compensation Act and nothing is remained to be deposited in the present matter. Hence, on the strength of statement made by the learned Counsel for Appellant, Respondent Nos.1 and 2 are at liberty to withdraw the amount, deposited by the Appellant, if not already withdrawn.