Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 2044 (ALL)

New India Assurance Co. Ltd. v. Guddi @ Sarojni

2022-12-22

KAUSHAL JAYENDRA THAKER

body2022
JUDGMENT : (Kaushal Jayendra Thaker, J.) : Heard learned counsel for the appellant. 2. By way of this appeal, The New India Assurance Company Limited has challenged the award dated 23.8.2004 passed by Workmen's Compensation Commissioner, Assistant Labour Commissioner, Kanpur Region, Kanpur in Case No. WCA 121 of 2003 awarding compensation of Rs. 211790/-with interest at the rate of 6%. 3. The brief facts leading to the litigation as culled out from the judgment are that a claim was filed by the claimants claiming compensation for the loss of their breadwinner who admittedly was a cleaner on the vehicle owned by the the respondent - owner and on the fateful date i.e.22.5.2003 the vehicle met with an accident. A claim petition was filed before the Workmen's Compensation Commissioner, Kanpur claiming a sum of Rs. 4,23,580/- with 12% rate of interest. 4. The respondent No. 1 has admitted the fact that the deceased was employed with him and the vehicle was insured with the insurance company. After elaborate evidence being laid the learned Commissioner awarded the award in favour of the claimant. I have even perused the Annexure 2 of the investigating officer but nowhere it has been mentioned that the vehicle was not insured. A private investigation was never examined. Hence, the same could have not been relied. The FIR is very elaborate the insured truck was involved in the accident. All these being questions of facts have been considered by the Court below. 5. On perusal of memo of appeal, this Court finds that following substantial questions of law have been framed by the appellant: ''(i) Whether in view of the law that the deceased motorcyclist being a ''Third Party'' vis-a-vis the offending truck No. HR-38 C-4849, the claimant/respondent No. 1 had the remedy of filing a claim petition under Section 166 of the Motor Vehicles Act before the concerned Motor Accident Claims Tribunal has the learned Commissioner erred in entertaining the present petition under the provisions of the Workmens' Compensation Act merely because the deceased was allegedly employed as a cleaner on the insured truck at the relevant time ? (ii) Whether in view of the admitted fact that neither the insured truck No. UP-70 D-9927 was involved in the accident nor the accident had occurred due to the use of the insured truck, has the learned Commissioner erred in fastening the liability to pay the assessed compensation on the appellant insurance company, merely because the deceased was allegedly employed on the insured truck at the relevant time ? (iii) Whether in view of the fact that the opposite party/respondent No. 2 i.e. the alleged employer had not appeared on the witness stand before the learned Commissioner nor the claimant/respondent No. 1 could lead any documentary evidence in support of her contentions regarding the employment and income of the deceased, has the learned Commissioner erred in ignoring the evidence of the appellant insurance company that the deceased was not an employee of the aforesaid opposite party/respondent No. 2 ? 6. The facts narrated above in nutshell will have to evaluated in view of the judgments of the Apex Court in C. Manjammu v. Divisional Manager, New India Assurance Company Limited, 2022 ACJ 2661.The finding of facts are said to be perverse where no evidence is adduced by the party in whose favour decision is penned. The commissioner has considered evidence led by the claimants as well as the evidence led by the insurance company. The findings are not such which can be said to be perverse. Just because another vehicle is involved in the accident will the claim petition before Workman Compensation Commissioner be not maintainable. The said question raised by the insurance is answered by the legislation itself and Section 167 of the Motor Vehicle Act, 1988 gives the option to the claimants to claim compensation under either of the Acts. In our case the Commissioner cannot be said to have gone beyond his jurisdiction. The question No. 2 is answered in question itself first the deceased was held to be employed on the insured truck and then he is submitted that other owner of other vehicle is not party and the liability would be that of the insurance company. Issue No. 3 is a finding of fact and in view of the decision of Apex Court in C. Manjammu (supra) this Court cannot delve into the same. 7. Issue No. 3 is a finding of fact and in view of the decision of Apex Court in C. Manjammu (supra) this Court cannot delve into the same. 7. At the outset, it is relevant to discuss the scope of this Court to entertain appeal against the award of Workmen's Compensation Commissioner. 8. The Apex Court in Civil Appeal No. 7470 of 2009 North East Karnataka Road Transport Corporation v. 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. 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.'' 9. 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. 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.'' 10. This Court, recently in F.A.F.O. 1070 of 1993 (E.S.I.C. v. 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. v. 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.'' 11. 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. 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. v. 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. 12. A recent decision of the Apex Court in the case of Mayan v. 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 v. 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. 13. This Court is even fortified in its view in Shahajahan and another v. M/s. Shri Ram Gen. Insurance Company Ltd. and another, 2021(4) TAC 687 (SC), as it is proved that the claimant was employee of the employer and was engaged as a cleaner, the said factual finding cannot be interfered by this Court. 14. 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. 15. 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.