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2022 DIGILAW 1909 (ALL)

New India Assurance Co Ltd. v. Hardei

2022-12-03

K.J.THAKER

body2022
JUDGMENT : 1. Heard learned counsel for the appellant-New India Assurance Co. Ltd. 2. By way of this appeal, the appellant has challenged the judgment and award dated 31.3.2004 passed by Workmen's Compensation Commissioner, Bareilly, in Case No.156/WCA/2002 awarding compensation of Rs.3,06,620/-. 3. Learned Counsel for the appellant – Insurance Company submits that according to the statement of the owner, deceased had taken the vehicle to the workshop for repairing and servicing but he had taken the vehicle in question to Delhi and Meerut with other five persons without his permission and as such his death would not be taken to be caused arising out of and in the course of his employment at the time of accident. The driver had licence to drive only motorcycle and LMV (Pvt.) whereas jeep was insured for taxi purposes and as such it was driven in violation of policy. 4. Learned Counsel for the claimant – respondent submits that the deceased Charan Singh Yadav was engaged as Driver with the vehicle no. UP-25-J/2228 owned by respondent no.2 and was murdered during course of his employment on 19.8.2002. The vehicle was insured with the company of appellant for which the learned Tribunal decided the issue no.4 recording that on the day of incident the vehicle was insured as the vehicle was insured since 20.3.2002 to 19.3.2003. 5. It is submitted by learned Counsel for appellant that on the day of incident the deceased was not having valid and effective driving license for which issue no.5 decided against appellant. The finding that deceased died during course of employment for which issue no.1 was decided in favour claimants is against the evidence led before the Commissioner. 6. It is further submitted by learned Counsel for the appellant that the learned Tribunal considering material evidence available on record partly allowed the claim of claimant by judgment and order dated 31.3.2004 awarding amount of Rs. 3,06,620/-with interest and erroneously fixed liability on the appellant. The learned Tribunal while partly allowing the claim of claimant – respondent no.1, came to the conclusion that the claimant was entitled for compensation as claimed by the widow. 7. On perusal of memo of appeal, this Court finds that following substantial questions of law have been framed by the appellant. This Court while admitting the appeal did not stipulate on what question of law the appeal was admitted. 7. On perusal of memo of appeal, this Court finds that following substantial questions of law have been framed by the appellant. This Court while admitting the appeal did not stipulate on what question of law the appeal was admitted. This Court thinks it appropriate to decide the substantial question of law as framed by appellant. The substantial questions of law are as under:- “(a) Whether the learned Commissioner has committed error of law in awarding compensation ignoring the statement of the owner of the vehicle (employer) to the effect that he had only permitted the decease to take the vehicle in question to the workshop for repairing and servicing and not for leisure tour of Delhi and Meerut etc. which was with out his permission? (b)Whether the death of the Driver was deemed to be arising out of and in the course of his employment? (c) Whether the Driver had valid and effective driving licence at the time of the accident? (d) Whether unless the bones found are proved in the criminal court belongs to the alleged deceased, no award could be passed in favour of the claimant?" 8. At the outset, it is relevant to discuss the scope of this Court to entertain appeal against the award of Workmen's Compensation Commissioner. 9. The Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 has held as under : "9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRS sue/s his employer to claim compensation under the Act. 10. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRS sue/s his employer to claim compensation under the Act. 10. The aforementioned questions are essentially the questions of fact and, therefore, they are required to be proved with the aid of evidence. Once, they are proved either way, the findings recorded thereon are regarded as findings of fact." 10. The Apex Court further went on to hold as under : "15. Such appeal is then heard on the question of admission with a view to find out as to whether it involves any substantial question of law or not. Whether the appeal involves a substantial question of law or not depends upon the facts of each case and needs an examination by the High Court. If the substantial question of law arises, the High Court would admit the appeal for final hearing on merit else would dismiss in limini with reasons that it does not involve any substantial question/s of law. 16.Now coming to the facts of this case, we find that the appeal before the High Court did not involve any substantial question of law on the material questions set out above. In other words, in our view, the Commissioner decided all the material questions arising in the case properly on the basis of evidence adduced by the parties and rightly determined the compensation payable to the respondent. It was, therefore, rightly affirmed by the High Court on facts. 17. In this view of the matter, the findings being concurrent findings of fact of the two courts below are binding on this Court. Even otherwise, we find no good ground to call for any interference on any of the factual findings. None of the factual findings are found to be either perverse or arbitrary or based on no evidence or against any provision of law. We accordingly uphold these findings." 11. This Court, recently in F.A.F.O. 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 has followed the decision in Golla Rajana (Supra) and has held as follows: "The grounds urged before this Court are in the realm of finding of facts and not a question of law. We accordingly uphold these findings." 11. This Court, recently in F.A.F.O. 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 has followed the decision in Golla Rajana (Supra) and has held as follows: "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." 12. As far as present appeal is concerned, the so called substantial questions of law framed are questions of facts and the findings of the Commissioner on the said issues are not perverse. In view of the decision of the Apex Court in North East Karnataka Road Transport Corporation Case (Supra) and Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) where also it has been held that under Section 30 of the E.C. Act, 1923, the High Court cannot enter into the arena of facts unless they are proved to be perverse. 13. A recent decision of the Apex Court in the case of Mayan Vs. Mustafa and another, 2022 ACJ 524 also holds that the Court cannot interfere unless there is a question of law involved. In our case the injury was during the course of employment. The percentage of injury was decided by the Commissioner. The judgment of Apex Court in Salim Versus New India Assurance Co.Ltd. and another, 2022 ACJ 526 will also not permit this Court to interfere in the well reasoned judgment of the Commissioner. 14. This Court is even fortified in its view in Shahajahan and another Versus M/s Shri Ram Gen. Insurance Company Ltd. and another, 2021(4) T.A.C. 687 (S.C.) as it is proved that the claimant was employee of the employer and was engaged as a driver. 15. 14. This Court is even fortified in its view in Shahajahan and another Versus M/s Shri Ram Gen. Insurance Company Ltd. and another, 2021(4) T.A.C. 687 (S.C.) as it is proved that the claimant was employee of the employer and was engaged as a driver. 15. As far as question of law at (a) is concerned, it is immaterial whether the deceased took the vehicle to the workshop for repairing. He was in employment and during the employment, death arose out of and in the course of his employment. This is a finding of fact based on the evidence led before the court below. Hence, this being question of fact in view of the judgment of the Apex Court where no perversity is pointed out as the owner did not dispute the fact that deceased was his employee. This Court under Section 30 cannot delve into this disputed question of fact which has been decided by the Commissioner which is first court of fact. The owner, who has been examined as DW1, had put the vehicle at the command of the deceased, who was in employment. Charan Singh was done to death being on duty which is proved before the court below. The first information report also mentions that on 19.8.2002 Charan Singh was driver of the vehicle and had taken the vehicle for getting it washed in the morning at 9:00 a.m. This fact is corroborated by the chargesheet also. The deceased was murdered as he was kidnapped is a finding of fact in issue no.1. In that view of the matter, these being questions of fact and proved that he was done to death by certain elements, the judgment of the Apex Court in Rita Devi Vs. New India Assurance Co. Ltd., LAWS (SC) 2000 499, will apply to the facts of this case. As far as the question of breach of policy is concerned, the said driving licence whether had an endorsement or not is covered by the judgment in Mukund Dewangan Vs. Oriental Insurance Co. Ltd., AIR 2017 SC 3668 . It is nobody case that the vehicle was run as taxi quota vehicle. As far as issue no. (c) is concerned, the learned Commissioner while deciding issue no.5 has decided this factual data against the appellant. Oriental Insurance Co. Ltd., AIR 2017 SC 3668 . It is nobody case that the vehicle was run as taxi quota vehicle. As far as issue no. (c) is concerned, the learned Commissioner while deciding issue no.5 has decided this factual data against the appellant. I concur with the same for the reasons assigned herein above and on the basis of the judgment of the Apex Court in Mukund Dewangan (supra). As in issue no.5, it is proved that the vehicle was insured and the driver was insured and the driver had a driving licence. They had even contended that the driving licence was valid but there was no endorsement. As far as substantial question of law is concerned, the post-mortem report and the F.I.R. categorically proves that it was Charan Singh dead-body and there is no need to wait for the decision of criminal court once the Commissioner was satisfied on the facts of the case that Charan Singh was done to death. 16. In that view of the matter this appeal fails and is dismissed. The so called questions of law framed by the Insurance Company are answered against it. In fact the substantial questions of law raised are the questions of fact. 17. Interim relief shall stand vacated forthwith. The Registry will forward this order to the W.C. Commissioner who shall immediately summon the claimants and disburse the amount kept in fixed deposit with interest accrued on the said amount till date within 30 days from today.