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2017 DIGILAW 595 (UTT)

ORIENTAL INSURANCE CO. LTD. v. SUNIL RAM

2017-11-08

LOK PAL SINGH

body2017
JUDGMENT Hon'ble Lok Pal Singh, J. This appeal has been preferred against the judgment and order dated 23.11.2010 passed by Workmen Compensation Commissioner/Assistant Labour Commissioner, Kumaun Region Haldwani, Nainital in W.C.A. No.43 of 2007 Sri Sunil Ram vs. Nanda Ballabh Pandey, whereby the appellant the Oriental Insurance Company Ltd. has been directed to pay ‘ 4,39,129/- to the claimant/respondent no.1 as compensation within one month from the date of passing of judgment. 2. Brief facts of the case are that respondent no.1 Sunil Ram filed a claim petition under Section 4 of Workmen's Compensation Act, 1923 against the appellant and respondent no.2 with the averments that he was employed as driver on the vehicle of respondent no.2, bearing registration no. HR 38D/5929. On 24.4.2007, as per the directions of respondent no.2, he had gone to fill fuel in the vehicle. In the meantime, when he was going to ease out himself and was crossing railway track, his legs got stuck in the track. In between, a train arrived and cut off his both the legs, which resulted in amputation of his both legs above the knee. It has been stated that due to the accident, the claimant has become permanently disabled. He also stated that he was having valid driving license at the time of accident. The claimant was aged 30 years on the date of accident and was getting salary of Rs. 4,000/- per month. 3. The owner of the Dumpher in question has filed a written statement admitting therein that the claimant was employed as driver in the said vehicle. It has been admitted that the accident had taken place during the course of employment. The vehicle was insured with the Oriental Insurance Company Ltd. and was being driven as per Policy. The insurance company is liable to indemnify the compensation. 4. The Oriental Insurance Company Ltd. also filed its written statement and admitted the accident and also the fact that the vehicle is insured with it. However, denied rest of the averments of claim petition in absence of record of salary. 5. The claimant Sunil Ram deposed on oath before the Workmen's Compensation Commissioner and proved the averments made in the claim petition. In cross-examination, he admitted the fact that the expenditure on treatment were borne by the owner of the vehicle. The claimant also filed the disability certificate and proved it. 5. The claimant Sunil Ram deposed on oath before the Workmen's Compensation Commissioner and proved the averments made in the claim petition. In cross-examination, he admitted the fact that the expenditure on treatment were borne by the owner of the vehicle. The claimant also filed the disability certificate and proved it. The Oriental Insurance Company Ltd. submitted report of Surveyor dated 17.05.2010 but the surveyor was not examined to prove the report. 6. After hearing the parties and upon perusal of the evidence led by the parties, the learned Workmen Compensation Commissioner held that due to the injuries sustained by the claimant, he has suffered 100% disability. Learned Commissioner also held that in view of minimum wages, his monthly income comes to Rs.3519/-. He, thus, is entitled for a compensation to the tune of Rs. 4,39,129 and accordingly by judgment and order dated 23.11.2010 passed the impugned judgment and award directing the appellant Oriental Insurance Company Ltd. to pay Rs. 4,39,129 to the claimants as compensation. Feeling aggrieved by the judgment and Award dated 23.11.2010, this appeal has been preferred by the Oriental Insurance Company Ltd. 7. By order dated 25.01.2011, this appeal was admitted, however, no substantial question of law was formulated. An appeal under Section 30 of Workmen's Compensation Act would lie on substantial question of law. Following substantial questions of law was framed in the memorandum of appeal: “1. Whether the workmen's compensation commissioner can award compensation under the workmen's compensation Act 1923, without proof of the employment by reliable independent evidence and by reliable documentary evidence? 2. Whether the injury caused to the claimant/respondent no.1 by train while he was crossing the railway track on foot to ease himself in the night can be said to be injury caused by accident arising out of and in the course of his employment? 3. Whether the learned workmen's compensation commissioner has in an illegal and arbitrary manner passed the impugned judgment and award and has in an illegal and arbitrary manner assessed the loss of earning capacity solely on the oral evidence of the claimant without proof of the disability certificate. 4. Whether the impugned judgment and award has been passed in derogation with the provisions of section 4(1) (c)(ii) of the workmen's compensation Act?" 8. 4. Whether the impugned judgment and award has been passed in derogation with the provisions of section 4(1) (c)(ii) of the workmen's compensation Act?" 8. Their Lordships of Hon'ble Apex Court in the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by Lrs., 2001(3) SCC 179 , has examined the scope of Section 100 of the Code of the Civil procedure, 1908 and has laid down the following proposition of law: “9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty case on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 .)" 9. In Para 14 of the judgment, their Lordships further observed that a ‘substantial question' is one which goes to the root of the matter. Para-14 is reproduced as under: “14. To be “substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." 10. In the present case, the opposite party-the Oriental Insurance Company Ltd., has not specifically denied the averments made in the claim petition in its written statement, rather it is contended that claimant has not received injuries in due course of his employment and that he has claimed excessive amount of compensation for which he is not entitled. Thus, the averments which are not specifically denied would be deemed as admitted. That apart, this Court also finds that the claimant has adduced his evidence and proved the contents of the claim petition and has also filed documentary evidence before the Tribunal, whereas the Insurance Company, inspite of having full opportunity to rebut the evidence, has not produced any oral evidence; only a report of surveyor was filed by it, but that too is not proved/supported by any oral evidence. 11. In the light of aforesaid, this Court is of the opinion that no substantial question of law arises for consideration in this appeal. The appeal lacks merit and is hereby dismissed. No order as to costs.