PUSHPENDRA SINGH BHATI,J. - (1.) This appeal under Section 30 of the Workmen's Compensation Act, 1923 has been filed for the following reliefs :- 'It is, therefore, most humbly and respectfully prayed that this appeal may kindly be allowed with costs and the judgment and award dated 13.2.2004 passed by the learned Commissioner, Workmen's Compensation Act, Bhilwara in Case No. 49/2002 may kindly be modified and the compensation may kindly be enhanced upto as claimed by the appellants in their claim petition alongwith interest of 12% per annum from the date of accident and penalty of 50% of awarded compensation.' ?
(2.) The unfortunate accident happened in the mid-night of 12/13.5.2002 when Nand Lal (deceased) was travelling in video coach No. RJ-06P-999 in the capacity of 'Khalashi'. Counsel for the appellant has challenged the Award on the count that the month wage of deceased Nand Lal was taken as Rs. 1560/-, whereas it was demonstrated by leading evidence that Nand Lal was drawing wage of Rs. 4000/- per month. Counsel for the appellant stated that where oral evidence about income of deceased/injured is not contradicted, it has to be accepted as such. To substantiate his argument, Counsel relied upon the judgment of Hon'ble Apex Court in Smt. Kaushnuma Begum and Ors. Vs. The New India Assurance Co. Ltd. and Ors., reported in 2001 Western Law Cases (SC) Civil page 116; relevant portion whereof reads as follows :- '22. Appellants claimed a sum of Rs. 2,36,000/-. But PW-1 widow of the deceased said that her husbands income was Rs. 1,500/- per month. PW-4 brother of the deceased also supported the same version. No contra evidence has been adduced in regard to that aspect. It is, therefore, reasonable to believe that the monthly income of the deceased was Rs. 1,500/-. In calculating the amount of compensation in this case we lean ourselves to adopt the structured formula provided in the Second Schedule to the MV Act. Though it was formulated for the purpose of Section 163A of the MV Act, we find it a safer guidance for arriving at the amount of compensation than any other method so far as the present case is concerned.'? Counsel for the appellant and further relied on the judgment of Hon'ble Apex Court in Tebha Bai (Smt.) and Ors. Vs. Raj Kumar Keshwani and Ors., reported in 2019(1) ACTC 253; relevant portion whereof reads as follows : '13. We have perused the evidence adduced the parties. In our view, the sworn testimony of Appellant No. 1-wife of the deceased that her husband was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3, that he was being paid a monthly salary of Rs. 2000/- per month and that he died while driving the offending vehicle deserves to be accepted as in our opinion there is neither any contradiction in her examination-in-chief or in her cross-examination. Her evidence is throughout consistent. We also find that the Policy (Ex. P-1) issued by the Insurance Company (Respondent No. 4) was in force at the time of accident.' ?
(3.) Counsel for the appellant submits that as per Section 59 of Indian Evidence Act, oral evidence has to be believed unless it is contradicted. Counsel for the appellant has shown evidence of PW-1 Chanda, PW-2 Kanchan, PW-3 Shiv Singh and PW-4 Satya Narayan to show that deceased Nand Lal was getting salary of Rs. 4000/- per month and there is no controversion of income of deceased. The driver of bus inquestion categorically pointed out that Driver was paid Rs. 6000/- per month and 'Khalashi' was paid Rs. 4000/- per month.;