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2016 DIGILAW 505 (RAJ)

Supreme Stone Industries v. Chunni Bai

2016-04-07

P.K.LOHRA

body2016
ORDER : P.K. Lohra, J. Appellant employer, has preferred this appeal under Section 30 of the Employee's Compensation Act, 1923 (for short 'the Act') to challenge the impugned judgment and order dated 30.09.2015 passed by the Employee's Compensation Commissioner, Bhilwara (for short 'the learned Commissioner') in Claim Case No. WCA/F- 24/2008. By the impugned judgment and order, learned Commissioner while adjudicating the claim of the respondents-claimants under Section 10 read with Section 22 of the Act awarded compensation to the tune of Rs. 3,94,120/- with interest @ 12% per annum from the date of application. 2. The facts apposite for the purpose of this appeal are that respondents-claimants laid a claim petition under Section 10 read with Section 22 of the Act against the appellant before the learned Commissioner, inter alia, on the ground that husband of the first respondent and father of respondent Nos.2 and 3 Shri Babulal was in employment of the appellant as labourer for levelling of gitti. On the fateful day of 2nd February 2008 during the course of and out of employment, Babulal suffered grave and serious injuries and eventually succumbed to injuries. The incident was reported by the Factory Manager to the respondents-claimants. In order to claim compensation, respondents averred in the claim petition that at the time of occurrence of the accident, deceased Babulal was 35 years old and earning Rs. 4000/- per mensem. It is further stated in the claim petition that despite demand being raised by the respondents, compensation was not paid to them by the appellant and, therefore, besides claim amount, they are also entitled for interest on the aforesaid amount @ 18% per annum. 3. The claim petition is contested by the appellant and on its behalf, reply was submitted. In return, appellant admitted the factum of employment but clarified his nature of employment inasmuch as according to the appellant, deceased was entrusted duties of loading of prepared gitti in dumper and tractor trolley as well as levelling of gitti. A specific plea is raised that deceased was not entrusted any duty concerning crusher machine and DG set and, therefore, accident has occurred due to his own negligence and unauthorised act for which appellant cannot be held responsible. With this plea, a prayer is made for rejection of the claim petition. 4. A specific plea is raised that deceased was not entrusted any duty concerning crusher machine and DG set and, therefore, accident has occurred due to his own negligence and unauthorised act for which appellant cannot be held responsible. With this plea, a prayer is made for rejection of the claim petition. 4. In the additional plea, appellant pleaded that incident was immediately reported to Police Station, Sadar Bhilwara on 02.08.2008 and on account of pressure built by the family members of the deceased, appellant paid them a sum of Rs. 2,00,000/- as compensation. Further, elaborating additional pleas, it is averred that family members of the deceased lifted his body from the spot only after receiving the requisite amount and, therefore, they are not entitled for any claim from the appellant. 5. The learned Commissioner on the basis of pleadings of rival parties settled four issues for determination. For substantiating the claim, first respondent herself tendered her affidavit in evidence besides the affidavit of one more witness Shri Bherulal. That apart, four documents were produced which were exhibited including FIR, inquest report of dead body and autopsy report of deceased. In its defence, appellant produced two witnesses namely DW-1 Suresh Pangadiya and DW-2 Shiv Singh. The requisite payment of wages register was also produced by the appellant. 6. After conclusion of evidence of rival parties, learned Commissioner heard final arguments and by the impugned judgment and order decided issue No.1 regarding occurrence of accident resulting in death of Babulal during the course of and out of employment and recorded a definite finding that at the time of accident, deceased was in employment of appellant and he suffered injuries during the course of and out of employment which resulted in his death. The second issue relating to age and monthly wages of deceased Babulal was also decided in favour of respondents-claimants. The third issue as to whether respondents-claimants are entitled for compensation is also adjudicated by the learned Commissioner in favour of respondents-claimants. The forth issue which was framed in terms of specific plea raised by the appellant is also thoroughly examined by the learned Commissioner. Upon evaluation of evidence tendered by the appellant in this behalf, learned Commissioner recorded a definite finding that appellant has failed to discharge its burden. While discussing the evidence of the appellant, learned Commissioner noticed many pitfalls in the evidence of both witnesses of appellant. Upon evaluation of evidence tendered by the appellant in this behalf, learned Commissioner recorded a definite finding that appellant has failed to discharge its burden. While discussing the evidence of the appellant, learned Commissioner noticed many pitfalls in the evidence of both witnesses of appellant. More particularly while analysing the evidence of DW-2 Shiv Singh, learned Commissioner recorded a definite finding that appellant has failed to prove the nature of duties assigned to the deceased. Finally, learned Commissioner decided issue No.4 against the appellant and awarded compensation aforesaid to the respondents-claimants by the impugned judgment and order. 7. I have heard learned counsel for the appellant Mr. Himanshu Maheshwari at length and perused the impugned judgment and order. 8. At the outset before switching on to examine the appeal on merits, it is desirable to first of all dilate on Scheme of Act. The Act is a welfare legislation intended to give benefit to the workmen suffered employment injuries. Therefore, considering its message of social justice, it is not desirable from the Court to insist on strict proof of facts from the employee/his dependents in case of death. The Act is enacted with the solemn object to compensate an employee who has suffered injuries during the course of and out of employment and to the dependents of an employee who died during the course of and out of employment. The expression "arising out of employment" is not confined to "the mere nature of employment". The expression applies to the employment as such, to its nature, its conditions, its obligations and its incident. 9. Now switching on to the merits of the case, suffice it to observe that the solitary plea of the appellant is that deceased has acted against the instructions of the employer and the place where the accident occurred, he was not entrusted any duties to perform. Undeniably, the factum of employment is admitted by the appellant and,therefore, in that situation in order to substantiate its plea of alleged added peril by the deceased employee, it was very much desirable from the appellant to have tendered cogent and convincing evidence. The learned Commissioner while construing the evidence tendered by the appellant has recorded a clear and unequivocal finding that appellant has miserably failed to prove nature of duties entrusted to the deceased employee. The learned Commissioner while construing the evidence tendered by the appellant has recorded a clear and unequivocal finding that appellant has miserably failed to prove nature of duties entrusted to the deceased employee. As a matter of fact, the witness of the appellant has very candidly admitted that no concrete proof is furnished by the appellant to prove that deceased was simply entrusted duties of gitti levelling and loading of prepared gitti. In that background, it is rather difficult to comprehend that duties assigned to the deceased had no causal connection with the operation of crusher. This being the position, the findings and conclusions of the learned Commissioner that the deceased suffered injury during the course of and out of employment are just and proper founded on sound appreciation of evidence. Thus, in substance, taking into account the nature of legislation which is a beneficial legislation, the learned Commissioner has rightly construed the provisions of the Act in such a manner so as to bring within its ambit a benefit contemplated by the legislature. 10. In totality, learned Commissioner has recorded a definite finding on all the issues favouring the cause of the respondents-claimants with rational approach in construing the evidence by applying principle of preponderance of probabilities. Upon evaluation of the evidence and materials available on record, it cannot be categorised as infirm or perverse from any stretch of imagination warranting interference in the limited scope of judicial review under Section 30 of the Act. The legislature in its wisdom has also circumscribed the appellate powers of this Court under Section 30 of the Act inasmuch as appeal in such matters are entertain able only when a substantial question of law is involved. In the instant appeal, in the considered opinion of this Court, no substantial question of law is involved and the so-called substantial question of law proposed by the appellant are also falling sort of the requirements envisaged under Section 30 of the Act. 11. That being the position, a finding on question of fact cannot be gone into in this appeal in absence of perversity; based on no evidence or recorded without considering evidence on record. 11. That being the position, a finding on question of fact cannot be gone into in this appeal in absence of perversity; based on no evidence or recorded without considering evidence on record. If the learned Commissioner has recorded a finding that deceased was an "employee" within the meaning of Act and had sustained injury in the course of his job, it is a pure and simple finding of fact which is not required to be re-examined by this Court in exercise of appellate jurisdiction. 12. In view thereof, I fully concur with the findings and conclusions of the learned Commissioner and consequently no interference with the impugned judgment and order is warranted. 13. Resultantly, the appeal fails and the same is hereby dismissed summarily.