Judgment:
A. Pasayat, J.
1. New India Assurance Company Limited (hereinafter referred to as the 'insurer') challenges in this appeal under Section 30 of the Workmen's Compensation Act, 1923 (in short, the 'Act') the award made by the Assistant Labour Commissioner-cum-Commissioner for Workmen's Compensation, Cuttack (hereinafter referred to as the 'Commissioner') adjudicating a claim made by Respondents 1 to 3 (hereinafter referred to as the 'claimants'). The claim was made before the Commissioner on the ground that Madan Singh Bhadoria (hereinafter referred to as the 'deceased') was driver of the truck bearing registration No. ORR 1764 belonging to Mahabir Prasad Agarwalla (hereinafter referred to as the 'owner'). Due to an accident on June 6, 1990 where the said vehicle was involved deceased lost his life while discharging his duties as a driver and the accident occurred in course of his employment. Age of the deceased was stated to be 28 years and the monthly wages to be Rs. 1000/-. The owner appeared and filed written statement accepting employment of the deceased, wages claimed and the accident. His stand was that the vehicle involved in accident was the subject-matter of insurance with the insurer, and the award, if any, was to be indemnified by it. The insurer filed written statement disputing theage, and generally denying its liability since the owner has to prove the factum of accident, existence of policy to cover the vehicle, the wages and such other relevant aspects. On appreciation of evidence led before him the Commissioner came to conclude that the accident took place during the course of employment of the deceased and taking his age to be 28 years and income at Rs. 1,000/- he quantified the entitlement of the claimant at Rs. 84,716/-
2. In the present appeal it is stated that the employment of the deceased as claimed is not acceptable as the owner-Respondent No. 4 has not produced any document before the Commissioner in that regard. Further materials on record do not establish that deceased has a valid driving licence. The age of the deceased having been found to be 35 years in the post-mortem report and the inquest report, finding the age at 28 years as done by the Commissioner is also assailed. It is further stated that in view of clear stipulation in the policy, penalty and interests are not to be indemnified by the insurer if levied by the Commissioner, the observations by the Commissioner in that regard are not sustainable.
3. Mr. B. Pujari, learned counsel for claimants, submitted that the Commissioner has given cogent reasons for fixing the age at 28 years. According to him, observation of the Commissioner that the age indicated in the post-mortem report is outcome of guess work is correct. It is also pleaded that the documents filed clearly go to show the competency of the deceased to drive the vehicle.
4. So far as the driving licence aspect is concerned, I find that the copy of driving licence was marked as an Exhibit on admission. While exercising appellate jurisdiction under Section 30 of the Act which restricts consideration to substantial question of law, I decline to accept the factual dispute relating to validity of the driving licence without any definite materials to affect its authenticity.
So far as the age of deceased is concerned, the Commissioner took the age to be 28 years with the conclusion that the age indicated in the post-mortem report is merely a guess work. To say the least, the conclusion is presumptuous and without any basis. Sanctity is to be attached to the age indicated by the experienced and qualified doctor, who issued the post-mortem report. Unless materials are brought on record to show that the indication of age in the post mortem report is erroneous, the age indicated in the post mortem report is to prevail. In terms of Section 294 of the Code of Criminal Procedure, 1973 (in short, the 'Code') a post-mortem report can be read as substantive evidence in a criminal trial (under Sub-section (3)) if its genuiness is not disputed. Post mortem report is essentially a report by an expert. In the case at hand, no material whatsoever was brought on record to justify departure from the conclusion regarding age of the deceased as indicated in the post mortem report, I, therefore, take the age of the deceased to be 35 years at the time of accident.
5. So far as wages earned by the deceased prior to the death is concerned, there was practically no material brought on record by the appellant to rebut the specific materials placed by claimants, as reiterated by the owner, that the wages earned was more than Rs. 1,000/-per month. The Act prescribes the maximum which can be taken for the purpose of quantification, and in case of death 40% of the wages is to be applied. Taking into consideration the age factor, the entitlement of the claimants comes to Rs. 77,865/- (400 x 194.64). Out of the said amount, a sum of Rs. 60,000/- shall be kept in a fixed deposit in a nationalised bank for a period of five years. Thefixed deposits shall be Rs. 25,000/- each in case of Jasoda Singh Bhadoria and Khushoo Singh Bhadoria claimant Nos. 1 and 2 respectively. The deposit of minor claimant No. 2 Khushoo Singh Bhadoria shall be through her mother guardian Jasoda Singh Bhadoria. In respect of Smt. Jayanti Singh Bhadoria, mother of the deceased, the amount of fixed deposit shall be Rs. 10,000/- No withdrawal shall be permitted against the fixed deposits. However, the Commissioner on being moved and being satisfied about pressing need for withdrawal may permit such amount to be withdrawn, as would be considered by him to be adequate. So far as the balance amount is concerned, Rs. 14,000/- shall be paid to Jasoda Singh Bhadoria (claimant No. 1) and Rs. 3,856/- shall be paidto Smt. Jayanti Singh Bhadoria (claimant No. 3), on being identified by any of the learned counsel appearing for them in this Court.
6. It is stated that a sum of Rs. 34,716/-has been deposited pursuant to direction given. The difference of the amount in deposit and the amount to be paid pursuant to the direction given in this appeal shall be released to the appellant-insurance company.
There is no question of any penalty or interest as imposed by the Commissioner on the appellant in view of clear stipulation to the policy that the insurer shall not be liable for any interest or penalty imposable in respect of the amount to be identified by it.
The appeal is allowed to the extent indicated above.