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Rajasthan High Court · body

2018 DIGILAW 583 (RAJ)

Oriental Insurance Company v. Bunty Harijan

2018-02-19

INDERJEET SINGH

body2018
JUDGMENT : Inderjeet Singh, J. With the consent of parties, the appeal is finally heard. 2. The instant appeal has been filed by the appellant against the judgment dated 30.12.2008 passed by Commissioner Workmen's Compensation (to be referred as Commissioner) Jaipur-II, Jaipur in Case No.W.C.C.N.F.28/08. 3. Brief facts of the case are that the respondent No. 1 (to be referred as claimant) filed a claim petition under the provisions of Workmen's Compensation Act, 1923 (to be referred as Act of 1923) before the Commissioner stating therein that he was employed as Khallasi on Truck No.RJ14-2G-2065 and during the employment on 10.07.07 owing to rash and negligent driving by its driver accident has occurred and he sustain injuries on his legs. The doctor has assessed the permanent disability to the extent of 35%. The claimant further stated that he was being paid Rs. 200/- per day as wages and was of 25 years of age at the time of accident and as such claimed compensation for a sum of Rs. 5,20,584/-. The appellant-insurance company filed reply to the claim petition stating therein that at the time of accident, the claimant was under intoxication and at the time of accident he was working as driver and as a Khallasi on the truck. The objection regarding territorial jurisdiction of the Commissioner to hear and decide the claim petition was also taken. Lastly prayed for dismissal of the claim petition. The Learned Commissioner vide judgment dated 30.12.2008 partly allowed the claim application and awarded a sum of Rs. 2,60,292/- as compensation along with interest @ 12% per annum in favour of the claimant. Penalty of Rs. 1,00,000/- was also imposed upon the employer. 4. Counsel for the appellant submitted that the finding given by the Learned Commissioner on issue No. 1 is perverse. The appellant has produced the report of the investigator according to which the claimant himself driving the vehicle and he was working as Khallasi on the vehicle involved in the accident. Counsel further submits that the doctor has issued the permanent disability certificate in favour of the claimant for 35% whereas the Learned Commissioner has wrongly taken into consideration the loss of earning capacity as 50%. Thus, the finding given by the Learned Commissioner on issue No. 2 deserves to be quashed and set aside. Counsel further submits that the doctor has issued the permanent disability certificate in favour of the claimant for 35% whereas the Learned Commissioner has wrongly taken into consideration the loss of earning capacity as 50%. Thus, the finding given by the Learned Commissioner on issue No. 2 deserves to be quashed and set aside. Counsel further submits that the Learned Commissioner was having the territorial jurisdiction to hear and decide the claim application. 5. 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 on facts. 6. Heard counsel for the parties and perused the record. 7. The first argument raised by counsel for the appellant regarding perverse finding given by the Learned Commissioner on issue No. 1 has no force as the Learned Commissioner considering the evidence available on record has comes to a finding that on the date of accident, the claimant was working as Khallasi on the Truck No.RJ14-2G-2065. The Learned Commissioner has further held that according to medical report, the claimant was under intoxication at the time of accident. Thus the report of the investigator was rightly disbelieved by the Learned Commissioner. The next argument raised by counsel for the appellant that the Learned Commissioner has wrongly held the loss of earning capacity to the tune of 50% is also acceptable in view of the finding given by the Learned Commissioner on issue No. 2. The Learned Commissioner considering the injuries sustained by the claimant including "compound fracture femur Lt. Leg Condyle Fracture Rt. femur" and looking to the nature of the job of the claimant as Khallasi has rightly assessed and loss of earning capacity as 50%. Thus, the finding given by the Learned Commissioner on issue No. 2 is a correct finding. 8. 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 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. v. The Divisional Manager and Ors., reported in 2017 (1) SCC 45 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 within the competence of the High Court Under Section 30 of the Act." 9. The last contention raised by counsel for the appellant regarding wrongly assessed the monthly income of the claimant as Rs. 4000/- is also acceptable in view of the finding given by the Learned Commissioner on issue No. 2. The Learned Commissioner considering the evidence submitted by the claimant has held that the claimant at the time of accident was taking monthly salary of Rs. 6,000/-. However according to provisions of Workmen's Compensation Act, the Learned Commissioner in my opinion has wrongly considered the monthly salary of the claimant as Rs. 4000/- while calculating the compensation. 10. The Hon'ble Supreme Court in the matter of Jaya Biswal & Ors. v. Branch Manager, IFFCO Tokio General Insurance Company Limited & Anr. Reported in (2016) 11 SCC 201 wherein it has been held as under:- "28. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that the deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs. 4,000/- per month + daily bhatta of Rs. 6,000/- per month, which amounts to a total of Rs. 10,000/-. The High Court did give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The wages of the deceased were accepted as Rs. 4,000/- per month + daily bhatta of Rs. 6,000/- per month, which amounts to a total of Rs. 10,000/-. The High Court did give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the Appellant Nos. 1 and 2 are old and have lost their elder son and they have become destitutes." 11. The last contention raised by counsel for the appellant regarding the Commissioner was having the jurisdiction to hear and decide the claim application is also acceptable in view of the judgment passed by the Hon'ble Supreme Court in the matter of Malati Sardar v. National Insurance Co. Ltd. and others reported in 2016 (3) SCC 43 , wherein para 14 and 16 &17 has held as under:- "14. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting Respondent had its business at Kolkata. 16. The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar, contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of section 21 CPC. 17. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar, contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of section 21 CPC. 17. Accordingly, we allow this appeal, set aside the impugned judgment of the High Court and restore the award of the Tribunal." 12. Thus in view of the above discussion, no substantial question of law is involved in this appeal. Hence, the appeal filed by the appellant as well as stay application stands dismissed.