# United India Insurance Co. Ltd v. Smt. Ramwati Devi & Ors. 294 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 1 ILRA 293
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-28
- **Case number:** First Appeal From Order No. 2871 of 2005
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/united-india-insurance-co-ltd-v-smt-ramwati-devi-ors-294-indian-law-reports-45053
- **Pages:** 4

## Headnote

A. Workmen's Compensation Act, 1923 -
Appeal - Pleading - Effect of no rebuttal -
The Insurance Company-appellant having
full opportunity to contest the claim did
not do proper rebuttal
- Claimantrespondents stands proved by cogent and
consistent testimony - It would not be
arguable
that
there
was
no
such
relationship
(the
employer
and
the
employee) in absence of supporting
material. (Para 15)
B. Workmen's Compensation Act, 1923 -
Section 4 - Verbal Cross Objection -
Admissibility - Interest to be awarded is
to be fixed at the rate of 12% per annum
- However, it was fixed at the rate of 4%
per annum - Verbal objection on behalf
of the claimant is liable to be sustained -
Award impugned modified to the extent
that the interest rate shall be charged at
the rate of 12% per annum instead of
4% - Verbal cross objection raised by the
claimant-respondent allowed. (Para 16)
First Appeal From Order dismissed. (E-1)

## Text

1 All. United India Insurance Co. Ltd. Vs. Smt. Ramwati Devi & Ors.
293

13. In Sarla Verma (Supra) case
multiplier is from the age of 36 to 40 years
is 15. The Supreme Court has laid down as
below:

"We therefore hold that the
multiplier to be used should be as mentioned
in column (4) of the Table above (prepared by
applying Susamma Thomas, Trilok Chandra
and Charlie), which starts with an operative
multiplier of 18 (for the age groups of 15 to
20 and 21 to 25 years), reduced by one unit
for every five years, that is M-17 for 26 to 30
years, M-16 for 31 to 35 years, M-15 for 36
to 40 years, M-14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two
units for every five years, that is, M-11 for 51
to 55 years, M-9 for 56 to 60 years, M-7 for
61 to 65 years and M-5 for 66 to 70 years."

14. It is clear from the above
observation that in the age of 36 to 40 years,
the available multiplier is 15 and not 14, as
the learned Tribunal has determined the age
of the deceased to be between 38 to 40. The
has been further affirmed on the point of
multiplier system by the judgment in
National Insurance Company Vs. Pranay
Sethi & others, AIR 2017 SC 5157.
Therefore, the learned Tribunal has rightly
applied the multiplier in this instant case.

15. In Sarla Verma (supra), it has been
held by the Supreme Court that a proceeding
before the Tribunal is in the nature of inquiry
in which a very few thing is required to be
established. The Court observed:

"Basically only three facts need
to be established by the claimants for
assessing compensation in the case of
death: (a) age of the deceased; (b) income
of the deceased; and the (c) the number of
dependents. The issues to be determined
by the Tribunal to arrive at the loss of
dependency are (i) additions/deductions to
be made for arriving at the income; (ii) the
deduction to be made towards the personal
living expenses of the deceased; and (iii)
the multiplier to be applied with reference
of the age of the deceased."

16. In my view, the the learned
Tribunal has discussed all above aspects as
laid down in Sarla Verma (supra) and
has determined compensation on the basis
of the net salaried income of the deceased
by applying right multiplier. I do not find
any perversity or any illegality in the
impugned judgment and award.

17. In view of the above discussions,
I find no force in this appeal and the
appeal is liable to be dismissed.

18. The appeal is dismissed.

19. The office is directed to send a copy
of this judgment to the Court concerned for
information and necessary compliance.

20. Stay if any shall stand vacated.
Remit back the amount of Rs. 25000/-
deposited by the appellant to the learned
Tribunal to be adjusted against the
awarded compensation.
----------
(2020)1ILR 293

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2019

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

First Appeal From Order No. 2871 of 2005

United India Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Ramwati Devi & Ors. ...Respondents
294 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Ashok Kumar Srivastava, Sri Nagendra
Kumar Srivastava

Counsel for the Respondents:
Sri Nigamendra Shukla

A. Workmen's Compensation Act, 1923 -
Appeal - Pleading - Effect of no rebuttal -
The Insurance Company-appellant having
full opportunity to contest the claim did
not do proper rebuttal
- Claimantrespondents stands proved by cogent and
consistent testimony - It would not be
arguable
that
there
was
no
such
relationship
(the
employer
and
the
employee) in absence of supporting
material. (Para 15)
B. Workmen's Compensation Act, 1923 -
Section 4 - Verbal Cross Objection -
Admissibility - Interest to be awarded is
to be fixed at the rate of 12% per annum
- However, it was fixed at the rate of 4%
per annum - Verbal objection on behalf
of the claimant is liable to be sustained -
Award impugned modified to the extent
that the interest rate shall be charged at
the rate of 12% per annum instead of
4% - Verbal cross objection raised by the
claimant-respondent allowed. (Para 16)
First Appeal From Order dismissed. (E-1)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Heard Sri Nagendra Kumar
Srivastava,
learned
counsel
for
the
Insurance
Company-appellant,
Sri
Nigamendra Shukla, learned counsel for
the claimant-respondent nos.1 to 6 and
perused the material brought on record.

2. By way of the instant appeal,
challenge has been made to the judgment
and award dated 27.09.2005 passed by the
Workmen's Compensation Commissioner /
Assistant
Labour
Commissioner,
Bulandshahar, in W.C.A. No.04 of 2002,
Smt. Ramwati Devi and others Vs. Aftab
Ahmad and another, whereby overall
compensation amount Rs.3,51,080/- has
been awarded under various heads to the
claimant-respondents.

3. Learned counsels for both the
parties agree that this case relates to the
point of income and assessment of the
compensation, thereon each point can be
adjudicated upon and scrutinized merely
by perusal of the certified copy of the
award itself, therefore, there is no need for
lower court's record and the case may be
decided after hearing both the sides.

4. Consequently, this case is being
decided on the strength of the material
available on record.

5. Brief facts giving rise to this
appeal as reflected from material available
on record appear to be that one Chandra
Pal Sharma, resident of Village Faridpur,
District Gautam Budh Nagar was in the
employment of Aftab Ahmad, owner of the
Truck No.DL-1 GA / 2155 as driver and
was earning Rs.4000/- per month. He was
on duty on 30.01.2002 when the accident
caused on account of slippage of jack, due
to which the driver was crushed under the
vehicle and died on account of sustaining
injury. At that point of time, the deceased
Chandra Pal Sharma was aged 40 years
and he was possessing valid and effective
driving licence and he was a skilled driver.

6. Relevant notice for compensation
was given to the employer. Thereafter, the
Insurance Company-appellant was also
informed about the accident and was asked
to give compensation to the family of the
deceased. It was also claimed that the
aforesaid offending truck was insured with
1 All. United India Insurance Co. Ltd. Vs. Smt. Ramwati Devi & Ors.
295
the cover note no.0348319 for period
07.11.2001 to 06.11.2002. The overall
compensation
amount
Rs.20,00,000/-
along with accrued interest and expenses
under various head was demanded by the
claimant-respondents.

7. The case was contested whereby
the
Workmen's
Compensation
Commissioner after considering the merits
of the case found it a case fit one for
awarding
compensation
to
the
tune
Rs.3,51,080/- along with 4% interest. This
amount was required to be paid by the
insurer
of
the
offending
truck
i.e.
Insurance
Company-appellant.
Further
penalty was also imposed upon opposite
party no.1, (herein respondent no.7), truck
owner for paying Rs.65,000/-.

8. Feeling aggrieved by the same, the
Insurance Company-appellant has moved
before this Court by filing this appeal.
Core contention raised before this Court is
that monthly income of the deceased was
not proved as was required under the
Workmen's Compensation Act, 1923 and
the relationship of the employer and
employee was not satisfactorily explained
by the claimant-respondents. It cannot be
said that the deceased was working in the
employment of respondent no.7 and he
sustained injury in the alleged accident on
the date and time as claimed by the
claimant-respondent nos.1 to 6 in their
claim petition.

9. Fact is that merely on the verbal
claim of the wife of the deceased, monthly
income was fixed by the Workmen's
Compensation Commissioner which is not
supported by any documentary evidence.
The salary certificate has also not been
brought on record. Had the deceased been
in the employment of the truck owner,
there must have been some documentary
proof for payment of the salary but there is
nothing on record which may justify that
any
relationship
as
employer
and
employee existed between the deceased
and respondent no.7.

10. In view of above, it is doubtful
whether the death of the deceased occurred
during course of employment whereby
Chandra Pal Sharma died. In view of this
particular
aspect
of
this
case,
no
responsibility can be saddled with the
Insurance Company - the appellant, insurer
of the offending truck in question. The
burden of
proof
was
not properly
discharged by claimant-respondent nos.1
to 6.

11. While replying to the aforesaid
contentions, it has been claimed by the
learned
counsel
for
the
claimantrespondents that testimony given by
Ramwati Devi PW-1, wife of the deceased
Chandra Pal Sharma was found to be
consistent and nothing adverse emerged
from her cross examination though cross
examination was done by the Insurance
Company-appellant and no proof in
rebuttal regarding existence of relationship
of the employer and the employee between
the deceased and respondent no.7 was ever
furnished or brought on record before the
Workmen's Compensation Commissioner.
Therefore, better testimony prevailed and
it was rightly acted upon by the
Workmen's Compensation Commissioner
though accepted the claim and awarded the
compensation but failed to give proper
quantum of interest on the overall
compensation amount, for the reason that
criterion fixed for awarding interest on the
compensation amount under the provisions
of Section 4 A of the Workmen's
Compensation Act, 1923, stipulates 12%
296 INDIAN LAW REPORTS ALLAHABAD SERIES
interest to be applied on the overall
compensation amount.

12. Learned counsel for the claimantrespondents further added that it is
admitted
fact
that
no
appeal
for
enhancement on that count has been
presented even then in such case where
statutory
provisions
have
not
been
complied with and verbal objection raised
then it should be treated to be a prayer for
enhancement. Thus the interest awarded
can be interfered with by this Court and it
may be corrected so as to do substantial
justice to the claimant-respondents.

13. Considered the rival submissions
too.

14. In this case, insofar as testimony
of Ramwati Devi PW-1 as reflected from
the award impugned dated 27.09.2005 is
concerned, obviously, every parameter was
taken into consideration by the Workmen's
Compensation Commissioner and aspect
and magnitude of testimony of Ramwati
Devi PW-1 that was forthcoming was
rightly acted upon by the Workmen's
Compensation Commissioner. There is
nothing on record which may give
credence to the claim of the Insurance
Company-appellant that there was no
relationship existing between the deceased
and owner of the offending vehicle -
respondent no.7 as the employer and the
employee.

15. Further no proper rebuttal has
been done by the Insurance Companyappellant while it had full opportunity to
contest the claim on that particular count
as raised before this Court. Consequently,
in such case where the case of the
claimant-respondents stands proved by
cogent and consistent testimony, it would
not be arguable that there was no such
relationship
(the
employer
and
the
employee) in absence of supporting
material thereof.

16. Admittedly, the interest to be
awarded in the case was as per Section 4 A
of the Workmen's Compensation Act to be
fixed at the rate of 12% per annum,
however, it was fixed at the rate of 4% per
annum. Therefore, on that count verbal
objection of the learned counsel for the
claimant-respondent
nos.1
to
6
is
sustained.
The
award
impugned
is
modified to the extent that on the overall
compensation to the tune of Rs.3,51,080/-,
interest rate shall be charged at the rate of
12% per annum instead of 4%. The verbal
objection raised by learned counsel for the
claimant-respondents
is
accepted,
accordingly.

17. Accordingly, the impugned award
dated 27.09.2005 passed by the Workmen's
Compensation Commissioner / Assistant
Labour Commissioner, Bulandshahar, in
W.C.A. No.04 of 2002, Smt. Ramwati
Devi and others Vs. Aftab Ahmad and
another, stands modified to that extent and
the appeal preferred by the Insurance
Company is liable to be rejected, whereas,
the verbal cross objection raised by the
claimant-respondent stands allowed as
above.

18. For the reasons aforesaid, the
instant appeal lacks merit and the same is
dismissed.
----------
(2020)1ILR 296

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.