- (1.) Two appeals, FAO No.1 of 1991 and FAO No.88 of 1992 are fully burnt cases which arise out of the same award, though record of one appeal is not available either on Mozilla or branch Register but on the basis of documents made available at the time of hearing, it appears that one appeal is at the instance of the claimants for enhancement of compensation and the second is at the instance of employer against imposition of penalty. I proceed to dispose of the case on merits with the help of the record and with the assistance of learned counsel for the respective parties. The following two questions of law are said to arise for determination in these two appeals: (i) Whether at the time of determination of compensation, the income of the deceased workman could be taken at Rs.900/- per month (ii) Whether the respondent-Insurance Company can be burdened with the liability to pay penalty under Section 4-A (3) (b) of the Workmen's Compensation Act, 1923
(2.) By way of first appeal, the claimants/ appellants have challenged the judgment dated 5th October, 1990 passed by the Commissioner under the Workmen's Compensation Act, 1923, Ropar (for short 'the Commissioner'), whereby, a sum of Rs. 44,542/- towards compensation and interest thereon at the rate of 6% per annum from the date of filing of the claim application i.e. 16th December, 1988 till adjudication, was awarded to them by respondents No.1 & 2 jointly and severally, on account of death of one Bhupinder Singh son of Gurnaib Singh (appellant No.1) on the intervening night of 14/15 th November, 1988 during and in the course of his employment as a Cleaner with M/s Jaggi Mineral Supply Company respondent No.1 herein. Aggrieved against the order passed by the Commissioner, the claimants are before this court seeking enhancement of compensation and also higher rate of interest. The post-mortem certificate reveals that the deceased was aged about 20/21 years. The case of the appellants is that at the time of untimely death, Bhupinder Singh, was getting salary of Rs. 900/- per month.
(3.) The Commissioner determined the amount of compensation payable to the appellants at Rs. 44,542/- by taking monthly salary as Rs. 500/-. While determining the aforesaid compensation, the Commissioner observed as under: "The case of the petitioners is that Bhupinder Singh deceased was getting a monthly salary of Rs.900/-. The respondents have no doubt admitted this position to be correct in their written statement itself but Jagjit Kumar-AW-2 has deposed that the deceased was being paid Rs.500/- per month and in addition thereto he was being paid Rs.15/- per day. The petitioners have also got produced the records from respondent No.1, that is, copies of Ledger Ex.A.1. Perusal of the entries in the ledger would show that the driver was being paid a daily of Rs.20/- and a cleaner of Rs.15/-. Entries further reveal that Bhupinder Singh deceased was getting a monthly salary of Rs.500/-. Apart from that the entries indicate that the daily Rs.15/- to the cleaner was not being paid for the whole of the month.";