JOGENDER Vs. SUGRIV KUMAR SHARMA & ANOTHER

JUDGEMENT

(1.) Prayer in this appeal is for enhancing the compensation as has been granted by the Commissioner under the Workmen's Compensation Act, Circle Bhiwani, vide its award dated 28.03.2013 on three counts, first being the age of the deceased Azad Singh wrongly taken as 28 years relying upon the post-mortem report, whereas, as per the driving licence of the deceased which was produced by the respondent-Insurance Company (Ex.R-1), the age would come to 23 years on the date of accident i.e. 23.03.2005, as the date of birth mentioned on the driving licence was 26.01.1982; secondly, the deduction of period by four years interest as granted to the appellantclaimant for time consumed for leading the evidence by the appellant is also not justified as it was not the primary fault of the claimant but because of the procedural aspect and at some times because of Court; thirdly, the nongrant of penalty, although it has been proved on record that the intimation was sent to the owner of the vehicle Shri Sugriv Kumar Sharma and the claim qua penalty has been mentioned by the Commissioner but no relief has been granted .

(2.) Counsel for the appellant asserts that the deceased Azad Singh son of Jagjeet Singh was aged about 20 years at the time of accident and was employed as Driver with Sugriv Kumar Sharma-respondent No.1 on truck, Eicher/Isser Tempo bearing No.KA-02-C-5243, which was insured with respondent No.2-The Oriental Insurance Company Ltd. Accident took place on 23.03.2005 when Azad Singh-deceased was under the employment of respondent No.1-Sugriv Kumar Sharma, the owner of the truck, while he was going from Pune to Sholapur. Accident took place with a tanker wherein Azad Singh died at the spot. On the basis of the evidence which has been led by the appellant-claimant, the monthly income of the deceased was assessed at Rs. 5,500/- per month but because of upper cap under the statute, Rs. 4,000/- has been taken as the wages of the deceased Azad Singh for the purpose of calculations. Assertion has been made that age of the deceased has been assessed merely on the basis of the observations given in the postmortem report, which cannot be relied upon in the light of the driving licence (Ex.R-1), which has been produced by the respondent-Insurance Company itself according to which the date of birth of the deceased is 26.01.1982 and therefore, on the date of accident i.e. 23.03.2005, it would be 23 years. Assertion has also been made that the interest which has been deducted for four years, which was spent in completing the evidence of the appellant-claimant is also not justified as this period was not exclusively spent at the behest of the appellant-claimant rather it was because of the procedural aspect as also because of Court when various dates were granted on this score. Penalty as provided under the statute has also been claimed, which has although been referred to but not granted. Prayer has, thus, been made for granting the benefit of age as also the interest and penalty as prayed for.

(3.) Counsel for respondent No.2-Insurance Company, on the other hand, asserts that the Commissioner has rightly taken into consideration the post-mortem report to assess the age of the deceased and therefore, it has been taken as 28 years. As regards the driving licence, she asserts that the same was sought to be declared as fake but, because of non-production of the records, the same has not been so declared and therefore, no reliance should be placed on that. As regards the interest, she asserts that the lower Court has rightly considered the period which has been spent by the claimant and deducted the same which he had utilized for the purpose of completing his evidence. Since the counsel is appearing for respondent No.2, she asserts that there is no evidence on record indicating that the insurance company was ever intimated with regard to the accident or the non-release of the compensation and therefore, the Commissioner has rightly proceeded to deny the benefit of penalty as has been claimed in the present appeal.