Delhi High Court
Asha & Ors vs Pawan Kumar & Ors on 17 September, 2013
Author: Suresh Kait
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17th September, 2013
+ MAC.APP. 525/2011
ASHA & ORS ..... Appellants
Through: Mr. O.P. Mannie, Adv.
versus
PAWAN KUMAR & ORS ..... Respondents
Through: Mr. Naresh C. Sharma and
Mr. Chetan Swarup, Advs. for R1.
Mr. Soumik Mazumdar, Adv. for R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Instant appeal has been filed for enhancement of the compensation
amount against the impugned award dated 31.01.2011, whereby the learned
Tribunal has granted compensation of Rs.11,73,600/- with interest 7.5% per
annum from the date of filing of the petition till realization.
2. Ld. Counsel appearing on behalf of the appellants has argued the
present appeal only on the ground that the deceased was working as a
Supervisor with M/s. DKK Promoters and Builders Pvt. Ltd. and was getting
a salary of Rs.8,300/- per month as per salary certificate Ex.PW1/1.
However, learned Tribunal has not considered the same, in turn assessed the
income as per the Schedule of minimum wages effective from 01.02.2008,
as Rs.4,081/- per month applicable to a matriculate.
3. Ld. Counsel further submits that the appellants have examined Sh.
Devender Kumar as PW3 and proved the salary certificate of the deceased as
Ex.PW1/1. The said witness deposed that deceased was working in his
company as a Supervisor from 01.06.2007 till the time of his death. He used
to pay him Rs.8,300/- per month as salary.
4. To strengthen his arguments, he has relied upon a case of National
Insurance Company Ltd. v. Anisa Begum & Ors. IV (2007) ACC 97 (DB).
He submits that the claimants have successfully proved the salary certificate
as Ex.PW1/1 and there is no rebuttal. Therefore, ld. Tribunal has wrongly
assessed the salary of the deceased as per the minimum wages applicable to
a matriculate person.
5. Fact remains that PW3 Sh. Devender Kumar in cross-examination has
deposed that he does not have any record or voucher in respect of the salary
paid to the deceased. The provident fund used not to be deducted by the
Company for its employees. Moreover, he has not produced any
corroborative evidence such as the attendance register or register containing
entries of payment of salary to the deceased.
6. On perusal of the judgment of Anisa Begum & Ors.(supra), it is not
in dispute that onus primarily lies with a person, who is trying to establish
the onus. But as soon as it is done either by documentary or oral evidence it
shifts to the opposition party for denial or rebuttal either by the same witness
or by their own witness.
7. In the present case, the appellants have failed to establish the salary
certificate Ex.PW1/1. Mere issuing of the Salary certificate does not serve
the purpose in the absence of any corroborative evidence. PW3 Director of
the Company did not produce any record pertaining to salary, attendance
sheet or PF deducted by the employer.
8. Therefore, I am of the considered opinion that the
appellants/claimants have failed to establish that the deceased was getting a
monthly salary of Rs.8,300/- from his employer.
9. In view of the above discussion, I do not find any ground to enhance
the compensation amount.
10. Consequently, instant appeal is dismissed with no order as to costs.
SURESH KAIT, J.
SEPTEMBER 17, 2013
Jg/sb
