JUDGMENT

This Civil Miscellaneous Appeal has been filed against the award dated 21.10.2009 made in W.C.No.3 of of 2007 on the file of the Commissioner for Workmen Compensation, Madurai.

2. The case of the claimants before the Commissioner for Workmen Compensation, Madurai is that the deceased Jeyakanth was working as a driver in a JCB (Excavator) belongs to the first respondent bearing Registration No.PY 01-T-7787. On 24.08.2006, when the JCB was about to cross unmanned level crossing, a passenger train dashed against the JCB vehicle, as a result of which, the deceased Jeyakanth died on the spot. He was aged about 23 years and was earning a sum of Rs.4,000/- per month and Rs.50/- per day as batta from the first respondent. The claimants are the parents of the deceased. Claiming compensation amount of Rs.4,39,900/- (Rupees Four Lakhs Thirty Nine Thousand and Nine Hundred Only), the claimants approached the Commissioner for Workmen Compensation, Madurai.

3. The case of the first respondent before the Commissioner is that the fact that the deceased was working as a driver was admitted. But, monthly income and daily batta was denied and it has admitted that only Rs.2,000/- was paid as monthly salary. He also ensured with regard to the availability of driving license to the deceased. But, the claim form presented by the claimants was returned by the Insurance Company stating that the deceased was not owning proper driving license at the time of the accident. Since coverage was in force on the date of accident, the second respondent Insurance Company must pay the compensation if any to the claimants.

The case of the second respondent, who was the appellant before the Court is that the accident took place only due to the negligent on the part of the deceased. The other things were denied conventionally.

4. Before the Commission, on the side of the petitioners/claimants, one witness was examined and five documents marked. On the side of the respondent, first respondent was examined as R.W.1, the Insurance Company Officials from the appellant was examined as R.W.2.

5. At the conclusion of enquiry, the Commissioner came to the conclusion that the deceased worked under the first respondent and the death arose, during the employment, the claimants are entitled for compensation and accordingly, it fixed the same, by taking into account the monthly salary and awarded the compensation amount of Rs. 4,42,400/- (Rupees Four Lakhs Forty Two Thousand and Fourt Hundred Only). So, challenging the same, the Insurance Company has filed this appeal.

6.According to the appellant, when the deceased was not owning proper driving license to drive the vehicle, the Commissioner ought not to have directed the appellant Insurance Company to pay the amount and recover the same from the owner.

7.Regarding the compensation amount, no argument was advanced. Even though, in the grounds, it has been stated that ought not to have taken Rs.4,000/- as monthly salary of the deceased. But, however, it is seen that the deceased was only aged about 22 years at the time of the accident. The accident took place on 24.08.2006. In those days, monthly salary of Rs.4,000/- for a driver and that too for heavy vehicle namely, JCB might is reasonable. So, this Court find no error in the award regarding the compensation.

8.The compensation fixed by the Commissioner can be confirmed.

But, however, as mentioned earlier, the appellant/Insurance Company says that pay and recover ought not to have ordered. So, however, it is seen that the accident took place, when the deceased was about to cross the unmanned level crossing. The absence of license, on the part of the deceased was not the reason for the accident.

9.But, on the contrary, it is seen that he was negligent, while crossing unmanned level crossing. But, it is a settled law that the negligent and rashness on the part of the employee cannot reason for rejection of compensation. Except in those cases, which has been specifically excluded u