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2018 DIGILAW 132 (RAJ)

NATIONAL INSURANCE COMPANY LIMITED v. SURAJ KARAN

2018-01-09

INDERJEET SINGH

body2018
JUDGMENT : INDERJEET SINGH, J. 1. The instant appeal has been filed by the appellant against the order dated 28.12.2004 passed by the Commissioner Workmen's Compensation, (hereinafter referred to as Commissioner) Jaipur District, Jaipur in case No.WCCNF-44/2003. 2. Brief facts of the case are that the claimant-respondent had filed a claim petition for Rs. 4,72,944/- plus interest @ 18% and penalty under the provisions of Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as Act of 1923) for the injuries sustained by him during the course of employment as a driver on truck No. HR-51-GA-2711 on 2.03.2000 within the jurisdiction of P.S. Bagru. His truck had collided with another truck bearing No.RSM-9697. It was further stated by him in the claim petition that he was 35 years of age and drawing salary of Rs. 4,000/- per month as a driver. As a result of the accident and injuries sustained thereby he alleged that he was permanently disabled and unable to continue his occupation as driver. 3. The appellant-Insurance Company filed its reply and denied the averments of the claim petition for want of knowledge and proof besides defense of breach of policy conditions. 4. The learned Commissioner vide order dated 28.12.2004 partly allowed, the claim petition and awarded a sum of Rs. 2,36,472/- along with interest @ 9% in favour of the claimant. 5. Counsel for the appellant submitted that there is no relationship of employee and employer between the claimant and the owner of the vehicle. Counsel further submits that according to permanent disability certificate issued in favour of the claimant disability was only 40%, whereas, the Commissioner has wrongly held that there is loss of 100% in earning capacity. Counsel further submitted that there is violation of policy conditions in this matter. 6. Counsel for the respondent supported the judgment passed by the learned Commissioner and submitted that no substantial question of law is involved in this appeal and the Commissioner is the last authority in facts. 7. Heard counsel for the parties. 8. The first contention raised by the counsel for the appellant regarding no relationship of employee and employer between the claimant and the owner of the vehicle is acceptable in view of the finding given by the learned Commissioner on issue no.1. 7. Heard counsel for the parties. 8. The first contention raised by the counsel for the appellant regarding no relationship of employee and employer between the claimant and the owner of the vehicle is acceptable in view of the finding given by the learned Commissioner on issue no.1. The second contention raised by the counsel for the appellant regarding wrongly assessment of the loss of earning capacity as 100% is also acceptable in view of the finding given by the learned Commissioner on issue no.2 wherein the learned Commissioner has considered the disability certificate issued in favour of the claimant by a Medical Board for 40% and the Medical Bard has also opined that there is shortening of lower limb. The learned Commissioner considering the nature of the job performed by the claimant as driver and also considering that there is shortening of left leg comes to a conclusion that in future, he would be unable to work as driver and held loss of 100% in earning capacity in future. Thus, in my considered view, the issue no.2 as also rightly decided by the learned Commissioner. The Hon'ble Supreme Court in the matter of Pratap Narain Singh Deo v. Shrinivas Sabata and another, reported in 1976 ACJ 141 wherein para no. 5 & 8 has held as under:- "5. The expression "total disablement" has been defined in Section 2(i)(1) of the Act as follows: (1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement. It has been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: "The injured workmen in this case is carpenter by profession. By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as he work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding. By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as he work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding. Counsel for the appellant has been able to assail it on any ground and it does require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of Part II of Schedule I, because it was the appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 41/2" below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have been admitted or established. 8. It was the duty of the appellant, under Section 4A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did even make a provisional payment under Sub-section (2) of Section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no need to the respondent's personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making an application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement settling the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty." 9. The Hon'ble Supreme Court in the matter of Golla Rajanna and Ors. v. The Divisional Manager and Ors., reported in 2017 (1) SCC 45 in which para 10 has held as under:- "10. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. The Hon'ble Supreme Court in the matter of Golla Rajanna and Ors. v. The Divisional Manager and Ors., reported in 2017 (1) SCC 45 in which para 10 has held as under:- "10. Under the scheme of the Act, the Workmen's 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. The whole exercise made by the High Court is not within the competence of the High Court Under Section 30 of the Act." 10. The last contention raised by the counsel for the appellant regarding violation of policy condition has also been considered by the learned Commissioner and held that at the time of accident the claimant was having the learner's license, therefore, he was authorized to drive the vehicle. 11. Thus, in view of the above discussion, no substantial questions of law is involved in this appeal. Hence, the appeal as well as stay application filed by the appellant stands dismissed.