K.L. Manjunath, J.
1. Though the matter is listed for admission, by consent of the parties appeal is heard on merits.
2. This appeal is by the Insurance Company challenging the award passed by the Commissioner of Workmen's Compensation, Chitradurga in WCA/CR No. 22 of 2003, dated 28-12-2005. Aforesaid claim petition was lodged by respondents 1 and 2 claiming compensation on account of the death of their son one Jeharuddin. According to them, their son Jeharuddin was working as driver in lorry No. CNT-8911 under respondent 3. On 6-11-2002 he was proceeding in the lorry as a driver from Mysore to Gulbarga which vehicle met with an accident in between Hiriyur and Huliyar at about 1.30 a.m. in the early morning on account of the rash and negligent driving of the deceased driver lorry toppled down as a result of which cleaner sustained injuries and lodged a complaint before the police about the accident. Driver was not traced. On 11-11-2002 very near to the spot of the accident a dead body was found by the police and the dead body was sent for post-mortem. Accordingly post-mortem was conducted on the same day at Government Hospital, Hiriyur, later on it was identified by the cleaner of the lorry looking into the clothes found on the dead body as that of Jeharuddin.
3. A claim petition was lodged under the provisions of the Workmen's Compensation Act, 1923. On the ground that they were depending upon the income of their son Jeharuddin and on account of their old age they are unable to work and that the deceased was aged about 25 years and was getting a salary of Rs. 4,000/- per month and a batta of Rs. 50/- per day. Claim petition was resisted by the appellant-Insurance Company. Appellant-Insurance Company denying the accident and so also the death of Jeharuddin in the accident. In order to prove the respective contentions, respondent 1-Abdul Sattar was examined a one of the witnesses and Nagaraj, cleaner of the lorry, who was also a claimant in the connected matter was examined and in all both the claimants relied upon Exs. P. 1 to P. 21 and no evidence was let in on behalf of the Insurance Company.
4. Commissioner by holding that Jeharuddin died while discharging his duties held that the claimants were entitled for compensation since they were depending upon the income of the deceased. Commissioner also came to the conclusion that the deceased was getting an income of Rs. 3,500/- per month and by applying the factor 216.91 has awarded compensation of Rs. 3,79,592/- with interest. This order and award is called in question in this appeal.
5. We have heard the Counsel for the parties.
6. Sri A.M. Venkatesh, Counsel for the Insurance Company contends that the Commissioner has committed a serious error in awarding compensation even though respondent 1 has failed to prove that his son Jeharuddin died in a road traffic accident on 6-11-2002 at about 1.30 a.m. near Indasagatti on Huliyar Road. According to him, immediately after the accident, dead body of Jeharuddin was not traced and it was also not informed to the police about the missing of Jeharuddin immediately after the accident either by the owner of the vehicle or by his parents. Therefore he contents that merely depending upon the post-mortem report conducted on some unknown dead body, it cannot be held that the post-mortem was conducted on the dead body of Jeharuddin and that the dead body on which post-mortem was conducted was traced on 11-11-2002 five days after the accident, therefore there cannot be a nexus between the accident and the cause of death of unknown body. He also contends that the income taken by the Commissioner at Rs. 3,500/- is on higher side, and the petition filed by respondent 1 was not maintainable as he was not a dependent on deceased Jeharuddin. In the circumstances, he requests the Court to allow the appeal and set aside the order and award of the Commissioner.
7. Per contra, Counsel for the claimant respondent 1 contends that the grounds urged by the appellant are not tenable since the Insurance Company cannot raise the aforesaid grounds in view of the admission of the employer in regard to his relationship with the deceased Jeharuddin and the income. He further contends that even according to the FIR lodged by Nagaraj, cleaner of the vehicle, accident occurred on 6-11-2002 in the early morning at 1.30 a.m. and the lorry toppled down on account of the rash and negligent driving and as a result of which dead body of Jeharuddin was thrown out of the lorry and which fact was not known either to the cleaner or to the owner of the vehicle. According to him, parents of the deceased were under the impression that the deceased might be taking treatment in any hospital after the accident. It is also his case that after the post-mortem clothes which were on the body of Jeharuddin were seized by the police and the same were identified by the cleaner Nagaraj and he further contends that considering the place of accident and the distance at which dead body was found can be connected to the cause of the accident, therefore he requests the Court to dismiss the appeal.
8. Having heard the Counsel for the parties, the only substantial question of law to be considered by this Court in this appeal is whether the finding of the Commissioner is perverse?
9. In this case facts to the following extent are not in dispute: Accident occurred on 6-11-2002 within the jurisdiction of Hiriyur Police Station is not in dispute. It is also not in dispute that the accident occurred at about 1.30 a.m. in the early morning of 6-11-2002. When the accident has taken place at about 1.30 a.m. on 6-11-2002 cleaner had been to hospital and there his statement is recorded along with the owner of the vehicle. Owner had admitted that the lorry was being driven by Jeharuddin but whereabouts of Jeharuddin was not known to him or to the cleaner, or to his parents. Accident has occurred on account of the rash and negligent driving of the lorry driver and the lorry had toppled down.
10. A dead body was found and traced 5 days after the accident by the police. Post-mortem has been conducted at Government Hospital, Hiriyur at the instance of Hiriyur Police. Report of post-mortem discloses that the cause of death is shown as respiratory failure due to intracranial haemorrhage secondary to head injury. Cleaner has identified the clothes of Jeharuddin. Now for the first time appellant-Insurance Company is trying to contend that the post-mortem was conducted on an unknown dead body and that the same was not that of Jeharuddin. In order to prove the same, Insurance Company has not let in any evidence. Therefore, we are of the opinion that considering the time and cause of the accident and considering the distance between the place of accident and the place where dead body was found by the police five days after the accident could be that of the body of Jeharuddin as his clothes are identified by the cleaner who was travelling with Jeharuddin on the date of the accident. According to us, cleaner Nagaraj was the best person to identify the clothes of Jeharuddin who has seen Jeharuddin at the time of the accident and was travelling in the lorry from Mysore to Gulbarga. Therefore, there cannot be any doubt in regard to the identity of body of Jeharuddin.
11. When the owner of the vehicle has admitted his relationship with the deceased, when father of the deceased Jeharuddin has stated on oath that on account of his old age he has no earning of his own and was entirely depending upon the income of his son Jeharuddin and that the petition filed by the father of the deceased is maintainable as he was fully depending upon the deceased.
12. In regard to the salary of the deceased is concerned, Commissioner has taken salary of the deceased at Rs. 3,500/- per month. Accident is in the month of November 2002. If the Commissioner has taken salary of heavy vehicle driver at Rs. 3,500/- at the end of 2002, same cannot be stated to be on higher side, according to us salary payable to a driver in the month of November 2002 could be more than Rs. 4,000/-. Therefore, we do not see any perversity in the order passed by the Commissioner. Counsel for the appellant contends that as per the post-mortem, age of the deceased was between 30 to 40 years. But considering the nature of decomposed body at the time of post-mortem, we are of the opinion that the age mentioned in the post-mortem cannot be accurate, it would be a guess work. When on oath respondent 1 has stated that his son was aged about 25 years and when the claimant has also produced electoral roll issued by the Election Commission of India, it discloses that Jeharuddin was aged about 18 years as on 1-1-1995, would certainly prove conclusively that his age could have been 25 years at the time of the accident. Even otherwise, in the post-mortem report doctor has opined the age of the person between 30 to 40 years. Therefore, it is not accurate. We have also seen Ex. P. 10 which is the photograph found at the time of police locating the dead body in a bush near the accident place. Body is fully decomposed, therefore we are of the opinion that the Commissioner was justified in considering the age of the deceased as 25 years. In addition to that, when we are of the opinion that the income of the deceased was more than Rs. 4,000/- per month even if the factors has to be reduced for the purpose of computing compensation, no injustice would be caused to the Insurance Company if the actual salary paid to the deceased is taken as more than Rs. 4,000/-per month as the income under the Workmen's Compensation Act has to be restricted to Rs. 4,000/-. Under any circumstances, we do not see any perversity in the order passed by the Commissioner.
13. In the result, this appeal is dismissed. Amount if any in deposit is ordered to be sent to the Commissioner for Workmen's Compensation, Chitradurga. Out of the compensation awarded, a sum of Rs. 2,50,000/-shall be deposited in the name of respondent 1-claimant for a period of 5 years in any nationalised Bank and he is entitled to draw interest periodically. Rest of the amount be disbursed to the claimant.