National Insurance Co. Ltd. Vs Smt. Saroj Devi and Others

Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1130 of 2004 Appellant :- National Insurance Co Ltd Respondent :- Smt. Saroj Devi And Others Counsel for Appellant :- Kuldip Shanker Amist

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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Ref: Order On Appeal

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Heard learned counsel for the appellant.

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By way of this appeal, National Insurance Company Limited has challenged the award dated 31.8.2004 passed by Workmen's Compensation Commissioner, Etah in Case No.WCA 20 of 2001 awarding compensation of Rs.430560/- with interest at the rate of 9%.

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The facts of the present case are that the claim petition was filed by Smt. Saroj Devi, the claimant respondent no.1, alleging herself to be the wife of the deceased Jitendra Kumar for his death during the course of employment as driver in the truck HR-55/9815, which was insured with the appellant, but later on, the claimant - respondent nos. 2 and 3 who were the parents of Jitendra Kumar, filed the claim petition M.A.C. No.1316 of 2001 under the Motor Vehicles Act alleging that the

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Jitendra Kumar was unmarried and they were not immpleaded as party to the present claim petition and without deciding as to whether Smt. Saroj Devi was the wife of Shri Jitendra Kuamr after giving proper opportunity to the parties, the Workmen's Compensation Commissioner, illegally and erroneously, held that Smt. Saroj Devi was the wife of Shri Jitendra Kumar.

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On perusal of memo of appeal, this Court finds that following substantial questions of law have been framed by the appellant:

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"(1) Whether Workmen's Compensation Commissioner was justified in allowing compensation to Smt. Saroj Devi, the claimant - respondent no.1, without obtaining the declaration of succession certificate from the proper court as the heir of Jitendra Kumar specially, when the parents of Jitendra Kumar, the claimant - respondent Nos. 2 & 3, filed the claim petition under the Motor Vehicles Act alleging that he was unmarried ?

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(2) Whether the Workmen's Compensation Commissioner should have drawn adverse inference against Smt.Saroj Devi, the claimant - respondent no.1 that he was not wife of Shri Jitendra Kumar as she neither impleaded the parents of Jitendra Kumar as parties to the claim petition nor produced them ?

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(3) Whether the Workmen's Compensation Commissioner was justified in fixing the income of the deceased including the Khuraki Bhatta as Rs.70/- per day apart from the salary of Rs.2000/- per month ?

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(4) Whether in view of Section 2(m) of the Workmen's Compensation Act, the Khuraki Bhatta of Rs.70/- per day, which Jitendra Kumar was getting, would be included in the wages of Jitendra Kumar ?

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(5) Whether the Workmen's Compensation Commissioner allowed and calculated the amount of compensation as per provisions of the Workmen's Compensation Act ?

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(6) Whether the appellant as insurer of the vehicle, involved in the accident, was liable to pay the interest under Section 4A of the Workmen's Compensation Act ?

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At the outset, it is relevant to discuss the scope of this Court to entertain appeal against the award of Workmen's Compensation Commissioner.

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The Apex Court in Civil Appeal No.7470 of 2009 North

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East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 has held as under :

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"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRS sue/s his employer to claim compensation under the Act.

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10. The aforementioned questions are essentially the questions of fact and, therefore, they are required to be proved with the aid of evidence. Once, they are proved either way, the findings recorded thereon are regarded as findings of fact."

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The Apex Court further went on to hold as under :

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"15. Such appeal is then heard on the question of admission with a view to find out as to whether it involves any substantial question of law or not. Whether the appeal involves a substantial question of law or not depends upon the facts of each case and needs an examination by the High Court. If the substantial question of law arises, the High Court would admit the appeal for final hearing on merit else would dismiss in limini with reasons that it does not involve any substantial question/s of law.

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16. Now coming to the facts of this case, we find that the appeal before the High Court did not involve any substantial question of law on the material questions set out above. In other words, in our view, the Commissioner decided all the material questions arising in the case properly on the basis of evidence adduced by the parties and rightly determined the compensation payable to the respondent. It was, therefore, rightly affirmed by the High Court on facts.

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17. In this view of the matter, the findings being concurrent findings of fact of the two courts below are binding on this Court. Even otherwise, we find no good ground to call for any interference on any of the factual findings. None of the factual findings are found to be either perverse or arbitrary or based on no evidence or against any provision of law. We accordingly uphold these findings."

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This Court, recently in F.A.F.O. 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 has followed the decision in Golla Rajana (Supra) and has held as follows:

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"The grounds urged before this Court are in the realm of finding of facts and not a question of law. As far as question of law is concerned, the aforesaid judgment in Golla Rajanna Etc. Etc. Versus Divisional Manager and another (supra) in paragraph 8 holds as follows "the Workman

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Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis."

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As far as present appeal is concerned, the so called substantial questions of law framed are questions of facts and the findings of the Commissioner on the said issues are not perverse. In view of the decision of the Apex Court in North East Karnataka Road Transport Corporation Case (Supra) and Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) where also it has been held that under Section 30 of the E.C. Act, 1923, the High Court cannot enter into the arena of facts unless they are proved to be perverse.

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A recent decision of the Apex Court in the case of Mayan Vs. Mustafa and another, 2022 ACJ 524 also holds that the Court cannot interfere unless there is a question of law involved. In our case the injury was during the course of employment. The percentage of injury was decided by the Commissioner. The judgment of Apex Court in Salim Versus New India Assurance Co.Ltd. and another, 2022 ACJ 526 will also not permit this Court to interfere in the well reasoned judgment of the Commissioner.

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This Court is even fortified in its view in Shahajahan and another Versus M/s Shri Ram Gen. Insurance Company Ltd. and another, 2021(4) T.A.C. 687 ( S.C.) as it is proved that the claimant was employee of the employer and was engaged as a driver.

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In that view of the matter this appeal fails and is dismissed. The so called questions of law framed by the Insurance Company are answered against it. In fact the substantial questions of law raised are the questions of fact.

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Interim relief shall stand vacated forthwith. The Registry will forward this order to the W.C. Commissioner who shall immediately summon the claimants and disburse the amount kept in fixed deposit with interest accrued on the said amount till date within 30 days from today.

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Order Date :- 5.1.2023/Mukesh

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Digitally signed by :- MUKESH SRIVASTAVA High Court of Judicature at Allahabad

National Insurance Co. Ltd. v. Smt. Saroj Devi and Others

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National Insurance Co. Ltd. v. Smt. Saroj Devi and Others

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