JUDGMENT
Pradip Mohanty, J.
1. This is an appeal under Section 30(1) of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) against the award and judgment dated 30.4.2001 passed by the Assistant Labour Commissioner-cum-Commissioner for Workmen’s Compensation, Bhubaneswar in W. C. Case No. 57 of 1999.
2. The case of the claimants-respondent Nos. 1 to 4 is that on 5.10.1999 at about 11 A.M. the deceased-driver Pramod Kumar Naik while discharging his duty in the truck bearing registration number OR-05F 6696 and was proceeding with the truck in a normal speed from village Bhanpur (under Cuttack Sadar) towards Rourkela loaded with freezes, met with an accident in village Mandasila under Barkote Police Station, by having collusion with another truck. As a result, he sustained serious injuries including compound fracture and was admitted to S. C. B. Medical College and Hospital, Cuttack where he succumbed to the injuries on 6.10.1999. In the claim petition it has been stated that the deceased was getting Rs. 3,000/- as his wages per month and was aged about 24 years at the time of accident. The parents, unmarried sisters and major elder brother have filed the claim application before the Commissioner for Workmen’s Compensation on account of the accidental death of deceased driver Pramod Kumar Naik while he was discharging his duty as such.
3. The case of the respondent No, 5 (owner } is that the deceased was a driver at the relevant time under his employment and also admitted the accident but disputed all other averments including the monthly wages of the deceased.
4. The insurer (appellant- opp. party No. 2) has filed his written statement disputing all the facts including the employment, age and wages of the deceased as well as the liability for payment of compensation. In order to prove their case, the claimants have examined as many as two witnesses and the opp.party-owner (respondent No. 2) has examined one witness.
5. After considering the claim petition and the evidence on record and the relevant documents, the learned Assistant Labour Commissioner in its judgment, has awarded compensation of Rs. 1,99,233/- to the claimant-respondents.
Being aggrieved by the impugned judgment, the Insurance Company has preferred the present appeal.
6. In course of hearing, Mr. Dutta, learned counsel for the Insurance Company has urged that under Section 22 of the Workmen’s Compensation Act where an accident occurred in respect of which liability to pay compensation arises, a claim for such compensation is subject to provision of the Act. He further submits that Section 2(1)(d) of the Act defines the types of dependants. The first category mentioned in the aforesaid Section are automatically dependants and the second category are to plead and prove as to whether the dependants are wholly or in part dependants on the earning of the workman at the time of his death. The present case being filed by the father, mother and unmarried sisters, they come within the purview of Section 2(1)(d)(iii)(b) & (d) of the Act if they are wholly or in part dependant on the earning of the workman at the time of his death. He further submits that out of the income of the deceased he was spending 1/3rd on himself and the balance was paid to the family which ipso facto proves that the claimants were partly depending on the earning of the deceased and there being no evidence that the father had no income and they were totally dependant on the earning of the deceased, the finding arrived at by the learned Commissioner is unsustainable. He further submits that the opp. party No. 1 in his deposition stated that he was paying Rs. 1800/- per month on the basis of which, the learned Commissioner ought to have calculated the compensation. Therefore, the award is untenable and is liable to be set aside.
7. On perusal of the L.C.R., this Court finds that the owner appeared before the Commissioner and has filed his reply in the prescribed form, i.e., Form-II disclosing therein that the deceased was working as a driver in his truck and he died during the course of his employment in an accident. In his evidence he has also stated that the monthly salary of the deceased was Rs. 1800/-per month. Basing upon the admission of the owner of the truck and the evidence adduced by the claimant in the written statement, the Workmen’s Commissioner had arrived at the finding that the monthly income of the deceased was Rs. 1800/- per month. Accordingly, the Commissioner has awarded Rs. 1,99,233/- as compensation to the claimant-respondents. With regard to the second submission made by the appellant, it is clearly revealed that the claimants are fully dependants and are entitled to get compensation as they are parents, and unmarried sisters of the deceased-driver. The appellant-insurance company never raised any claim in its written statement or evidence, or suggested that they were not at all depending upon the income or wage of the deceased. Therefore, the plea now taken by the Insurance Company-appellant is not tenable in law in the appellate stage and moreover, the learned trial Court has categorically stated and discussed in the judgment that the claimants were fully dependant upon the income of the deceased. Moreover, these are the findings of facts. As there is no substantial question of law involved in this case, and there being no reason to admit the appeal, this Court is not inclined to interfere with the impugned award.
The Misc. Appeal is accordingly dismissed.
8. The Insurance Company is directed to pay the compensation as awarded by the Commissioner, within two months from the date of judgment. If the amount is not paid within the time stipulated, the Insurance Company will pay interest at the rate of 9% per annum on the said amount from the date of filing of the present appeal till payment thereof.
9. So far as the cross- appeal is concerned, since the appeal has not been admitted. The cross-appeal is dismissed as not maintainable.