- (1.) Both these appeals arise out of the same accident, so with the consent of the parties they have been heard together and are being finally decided at the stage of admission by this judgment.
(2.) It appears that in the separate claim petitions filed before the Workmen's Compensation Commissioner, the respondent no. 1 in both the appeals claimed themselves to be co-driver/khalasi and driver respectively on Tata truck no. DN 09G/9645 owned by respondent no. 2 on monthly salary was Rs. 4,500/- and 6,500/- respectively apart from diet.
(3.) It appears that in an accident dated 17.9.2009 the aforesaid vehicle collided with a tree by the side of the road and overturned whereby the respondents suffered grievous injuries during their employment and another workman Bajrangi suffered death. Respondent no.1 in each of the appeal claimed that due to the injuries sustained he has become permanently disabled and suffered 100% loss in their respective earning capacity. Their disability certificate mentioned that respondent Virendra Gaur had suffered 60% and Dinesh Kumar Yadav sustained 65% permanent disablement. Dr. A. K. Srivastava, Orthopaedic Suregon of District Hospital, Azamgarh was examined in each case who has testified that on account grievous injuries sustained by the injured they have lost their 100% earning capacity. The owner of the vehicle did not chose to contest the claim petition, while appellant filed its written statement in both the cases inter alia alleging collusion between the claimants and owner of the vehicle and also disputed their salary and permanent disablement as also 100% loss in their earning capacity. The claimants led oral and documentary evidence, while the appellant did not adduce any evidence. The Workmen Compensation Commissioner, Azamgarh through impugned award without any evidence on the income of the claimants computed their pay @ Rs. 4,000/- per month and on the basis of medical evidence of Dr. Srivastava and disability certificate of each claimant held 100% loss in their earning capacity. As per age of respondent no. 1 in each case compensation of Rs. 5,20,584/- and 5,15,572/- together with simple interest @ 12% per annum from the date of accident till final payment was awarded directing the appellant to indemnify the award as the vehicle was insured with them and there was no breach of conditions of insurance policy. Aggrieved, the appellant has preferred these appeals before this Court.;