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2017 DIGILAW 2387 (ALL)

ICICI LOMBARD GENERAL INSURANCE COMPANY v. SANJU PAL

2017-10-23

K.J.THAKER

body2017
JUDGMENT : Kaushal Jayendra Thaker, J. 1. Heard Sri Amit Manohar, learned counsel for appellant and Sri Krishna Kumar Singh, learned counsel appearing on behalf of claimants-respondent. 2. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by Insurance Company, being aggrieved by order dated 16.4.2009 passed by Workmen's Compensation Commissioner, Kanpur Region, Kanpur in W.C.C. No. 161 of 2008. 3. Brief facts of the present case are that claimants-respondents of the heirs of the deceased who died in the accident which took place when he was a driver of Tempo No.78 BT- 0945. The deceased filed the claim before the Workmen Compensation Authority claiming that the deceased was driver on the vehicle owned by Rajesh Babu owner of Vikram Tempo insured with the appellant herein. The Workmen Compensation Authority issued notice to appellant and the owner. As the accident had taken place on 10.6.2008 at about 12.30 pm (afternoon). The claimants time and again requested the owner to pay the compensation. It is alleged that Narendra Kumar was serving with respondent no. 2 herein and the heirs of claimants filed the claim before the authority. This fact has been admitted by the respondent no. 2 that the deceased was in his employment and was being paid Rs.3,000/- per month as wages and Rs.20/- per day as daily allowance. 4. It is submitted by the learned counsel for the appellant that the heirs and the employer failed to produce any document to prove that he was employed by respondent no.2. It is submitted that the deceased was brother of respondent no.2. It is further submitted that the FIR was lodged by Rakesh Pal who was the brother of deceased and that in absence of driving licence they could not have been saddled with any liability. He further submitted that in absence of any proof, the Authority could not have passed the award. He has formulated the following substantial question of law : "(A) Whether the relationship of master and servant, which is a sine quo non for maintaining a claim petition under the Workmen Compensation Act, 1923, existed between the deceased driver and the owner of the vikram tempo ? (B) Whether it was necessary for the claimants to produce documentary evidence to establish the contract of employment ? (B) Whether it was necessary for the claimants to produce documentary evidence to establish the contract of employment ? (C) Whether the Commissioner has rightly taken the income of the deceased to be Rs.3,889/- per month by applying the wages of skilled workmen as provided in the government order issued under the Minimum Wages Act without considering the fact that the owner of Vikram Tempo No. UP-78 BT-0945 had stated before the Commissioner that he paid monthly salary of Rs.3,000/- to the deceased Narendra Kumar ? (D) Whether the driving licence of the deceased Narendra Kumar was valid for driving Vikram Tempo No. UP-78 /BT-0945 ? " 5. This Court on 3.6.2009 passed the following order :- "Heard learned counsel for the appellant. Issue notice to the claimants - respondents no. 1 to 3, who may file counter affidavit. Apart from normal mode of service, appellant shall also take steps for service of notice by registered post within 10 days. Office shall issue notices returnable within 6 weeks. List for admission immediately after service of notice on claimant - respondent no. 1 to 3. Considering the facts and circumstances, until further orders of this Court, effect and operation of the impugned award dated 16.4.2009 shall remain stayed. However, the claimants - respondents is permitted to withdraw half of the amount deposited by the appellant without furnishing security within three weeks of the making of the application in this regard before the Workmen Compensation Commissioner, Kanpur Region, Kanpur and the balance amount shall be invested by the Workmen Compensation Commissioner in some interest bearing account with a nationalised bank. " 6. This Court on 16.7.2013 admitted the appeal and confirmed the order of this Court passed on 3.6.2009. 7. The Supreme Court in Golla Rajanna Etc. Etc. Versus Divisional Manager and another, 2017(1) T.A.C. 259 (S.C.) as held that appeal under Section 30(1) and 4(1) (c) must raise a substantial question of law. 8. 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 Compensation Commissioner is the last authority on facts. 8. 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 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." 9. In that view of the matter, this Court while admitting the appeal did not formulate any question of law. The questions formulated by the Insurance Company are in the realm of the employee and employer relations which would fall and which can be said to be question of fact, not of law. Thus, this appeal will have to fail and is dismissed. As no substantial questions of law has been raised and the question of facts has been answered by the Commissioner in favour of the claimants does not require any interference. 10. In that view of the matter, appeal sans merits and is dismissed. 11. Interim relief shall stands vacated. Amount be deposited before the Authority within 12 weeks from today.