Himachal Pradesh High Court
Ravi Pal vs Des Raj (Since Deceased) Through His Lrs on 26 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 462 of 2010 Reserved on: 05.09.2023 Date of Decision:26.09.2023 .
Ravi Pal ....Appellant.
Versus
Des Raj (since deceased) through his LRs .....Respondents.
Coram
of
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the appellants: rt Mr.Neel Kamal Sood, Senior Advocate with Ms. Shabnam, Advocate.
For the Respondents: Mr.Rahul Singh Verma, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the order dated 30.08.2010 passed by the learned Commissioner under Workmen's Compensation Act, Sub-Division, Paonta Sahib, District Sirmour, H.P. vide which the application filed by the appellant (applicant before the learned Trial Court) was dismissed. (Parties shall hereinafter referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 26/09/2023 20:35:23 :::CIS 22. Briefly stated, the facts giving rise to the present appeal are that the applicant filed an application before the .
learned Trial Court on 02.01.2003 for seeking compensation of ₹3,64,545/-and 50% penalty along with interest at the rate of 15% per annum from the date of the accident till its payment. It was asserted that the applicant was employed as a Turner in of Laxmi Engineering Works, Bhuppur, Paonta Sahib, District Sirmour, H.P. in the year 1999. Laxmi Engineering Works is rt owned by the respondent Des Raj. The applicant was getting wages of ₹1,800/- per month. The applicant met with an accident on 15.08.2002 at around 11:00 PM while discharging his duties. His right eye was badly damaged. The respondent carried the applicant to a private clinic where first aid was provided. The matter was not reported to the Police as the respondent assured to bear the expenses of treatment and to compensate the applicant for the disability, if any. The applicant was admitted to Lemon Hospital, Harbertpur on 16.08.2002. He remained admitted as an indoor patient w.e.f. 16.08.2002 till 20.08.2002.
The right eye of the applicant was completely damaged and he has become 100% permanently disabled. The applicant spent ₹4,000/- on his treatment. He also went for his checkup on ::: Downloaded on - 26/09/2023 20:35:23 :::CIS 3 23.08.2002 and 09.09.2002 by Taxi. He paid ₹1,950/- as Taxi charges. The respondent promised to compensate the applicant.
.
He(respondent) even entered into a compromise with the applicant; however, he failed to pay the money to the applicant.
The applicant served a notice on 02.11.2002 upon the respondent, which was duly received by him, however, no of amount was paid; hence, the application was filed for seeking the reliefs mentioned above.
3. rt The application was opposed by filing a reply denying the contents of the application except that the respondent is a proprietor of M/s Laxmi Engineering Works. It was specifically denied that the applicant was ever employed by the respondent or that he suffered injuries during the course of employment.
The execution of the agreement was also denied and it was prayed that the application be dismissed.
4. The parties were called upon to produce the evidence and the applicant examined Smt.Sneh Gupta (PW-1), himself (PW-2), Daya Singh (PW-3), Bisham Singh (PW-4), and Jasmer Singh (PW-5). The respondent examined himself (RW1), Suresh Kumar (RW-2) and Prahalad Singh (RW-3).
::: Downloaded on - 26/09/2023 20:35:23 :::CIS 45. Learned Trial Court held that Suresh Kumar, who was present at the time of the accident was not produced by the .
applicant. The applicant stated that the accident took place on 15.08.2002 at around 10-11 PM but his witness Daya Singh stated that the factory remained open till 5:00 PM. The agreement was not duly proved as its author was not examined. The version of of the applicant was not proved. Hence, the application was dismissed.
6. rt Being aggrieved from the order passed by the learned Trial Court, the present appeal has been filed asserting that the Learned Commissioner had not considered the evidence on record. The applicant lost his earning capacity and had spent a huge amount on his treatment. The applicant had also produced the medical bills which were not considered by the learned Trial Court. Statements of Jasmer Singh and Bisham Singh were ignored. The compromise effected between the parties was also proved but was not considered; therefore, it was prayed that the present appeal be allowed and the order passed by the learned Trial Court be set aside.
::: Downloaded on - 26/09/2023 20:35:23 :::CIS 57. This Court framed the following substantial question of law on 27.06.2011:
.
"Whether the Commissioner, under the Workmen's Compensation Act, has totally misread the evidence in coming to the conclusion that the petitioner is not a workman, within the meaning of Workmen's Compensation Act?"
8. I have heard Sh.Neel Kamal Sood learned Senior of Counsel assisted by Ms.Shabnam, learned counsel for the applicant-appellant and Sh.Rahul Singh Verma learned counsel rt for the respondent.
9. Sh.Neel Kamal Sood, learned Senior Counsel submitted that the applicant was serving as a Turner with the respondent. The applicant sustained injuries while discharging his duties. Respondent had also entered into an agreement with the applicant to pay the amount. The learned Trial Court did not consider these aspects and wrongly dismissed the application;
therefore, he prayed that the present appeal be allowed and the order passed by the learned Trial Court be set aside.
10. Sh.Rahul Singh Verma, learned counsel for the respondent supported the order passed by the learned Trial ::: Downloaded on - 26/09/2023 20:35:23 :::CIS 6 Court and submitted that no interference is required with the same.
.
11. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
12. It was laid down by the Hon'ble Supreme Court of of India in Golla Rajanna v. Divl. Manager, (2017) 1 SCC 45: (2017) 1 SCC (Civ) 320: 2016 SCC OnLine SC 1315 that an appeal lies before rt the High Court only on a question of law. The Commissioner is the final Court on facts and the High Court cannot re-appreciate the evidence. It was observed:
" 10. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. 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 reappreciate the evidence and recorded its own findings on the 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."::: Downloaded on - 26/09/2023 20:35:23 :::CIS 7
13. This judgment was followed in Fulmati Dhramdev Yadav v. New India Assurance Co. Ltd., 2023 SCC OnLine SC .
1105:2023 INSC 790, wherein it was held:
"17. The Act is unequivocal in stating that an appeal from an order of the Commissioner can be entertained only if there exists a substantial question of law to be considered. It has been observed by this Court that the phrase "substantial question of law" within this Act of shall be understood by its general meaning, Om Prakash Batish v. Ranjit (2008) 12 SCC 212 (2 judge- bench)]. When considering the general meaning of this phrase, naturally, the reference is to the Code of rt Civil Procedure (CPC). The rule therein is that framing of a substantial question of law is of cardinal importance.
18. A bare perusal of the impugned judgment shows that the Court did not frame any such question.
19. The wording of the Act indicates that the existence of such a question is a prerequisite to the appeal being entertained.
20. Illustratively, in North-East Karnataka Road Transport Corporation v. Sujatha, (2019) 11 SCC 514, (Two-Judge Bench) amongst numerous other cases, this Court has observed:
"12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."
21. The other ground making the order under challenge, amenable to interference when the scope of ::: Downloaded on - 26/09/2023 20:35:23 :::CIS 8 jurisdiction is circumscribed by it being exercised only in cases of "substantial question of law", is perversity in the findings. Here, the impugned judgement does not, even remotely, reflect the observation that the .
findings arrived at by the Commissioner are perverse.
The difference, between the two judgements, i.e., the order of the Commissioner and the judgment in the First Appeal, was on the point of the employer-
employee relationship having been established. The Commissioner held such a relationship to have been established however, the appeal Court observed that of "claimants have clearly failed to prove this aspect"
22. It may here only be noted that the Commissioner had not returned any findings in respect of the validity of the non-availability of the license of the deceased rt nor was it one of the questions framed by the Commissioner for consideration. In such a situation, while exercising powers within the limited purview allowed by section 30 of the Act, the learned Court below erred in making observations and giving a holding in that regard.
23. It has also been observed by this Court that the Commissioner is the last authority on facts involved in a case. In Golla Rajamma &Ors. v. Divisional Manager &Anr., (2017) 1 SCC 45, (2-Judge Bench) it was observed that "under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. 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 reappreciate the evidence and recorded its own findings on the 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."
::: Downloaded on - 26/09/2023 20:35:23 :::CIS 924. Keeping in view the said principles, the impugned judgement, ex-facie, appears to be in contravention thereto.
25. On merits too, we find that the conclusions arrived .
at by the Commissioner, were undoubtedly "a possible view", therefore extinguishing the possibility of perversity in findings.
26. A Bench of two learned Judges observed in C. Manjamma v. New India Assurance Co. Ltd., (2022) 6 SCC 206 :
"15. That being the position, the view taken by the of Commissioner had been a possible view of the matter in the given set of facts and circumstances; and there was no reason for the High Court to rt interfere with the same, particularly when the case did not involve any substantial question of law within the meaning of Section 30 of Employees Compensation Act, 1933."
14. It is apparent from the judgments of the Hon'ble Supreme Court that the Commissioner is the final Court on facts and the High Court cannot re-appreciate the evidence unless there is perversity in the findings recorded by the learned Commissioner.
15. It is an admitted case that the matter was not reported to the Police. It was stated that the applicant was taken to Lemon Hospital, Harbertpur, where, he remained admitted.
However, the record of the Lemon Hospital, Harbertpur was not proved by examining any person from the hospital to show the history given by the applicant in the hospital. It is also not ::: Downloaded on - 26/09/2023 20:35:23 :::CIS 10 explained that if the history of the accident was given to the hospital, then why the hospital had not intimated the police.
.
16. The learned Commissioner held that the version of the applicant was suspect as he claimed that he sustained injuries at around 11:00 pm whereas, his witness Daya Singh stated that the factory remains open from 9:00 AM till 5:00 PM.
of No factory works after 9:00 PM because the Electricity Department objects to the same. Learned Commissioner had rt rightly pointed out that Daya Singh was produced by the applicant and his testimony was binding upon the applicant. His testimony made it doubtful that the applicant had sustained injuries at around 11:00 PM in the night while discharging his official duties.
17. The applicant has not produced any record of his engagement. He admitted in his cross-examination that neither identity card nor record of his employment was produced by him. He claimed that the accident had taken place in the presence of Suresh Kumar respondent and two owners of the tractors; however, Suresh Kumar or owner was not produced, hence, learned Commissioner had taken a reasonable view while ::: Downloaded on - 26/09/2023 20:35:23 :::CIS 11 discarding the statement of the applicant regarding the accident having been taken place during the course of his employment.
.
18. A heavy reliance was placed upon the Agreement (Ext. PW4/A/2) in which it was stated that the eye of Ravi Pal was damaged on 15.08.2002 at around 11:00 PM in the shop of the respondent at Bhuppur. It was agreed that the insurance of claim of the applicant from NIC would be disbursed by the respondent and the respondent would produce all the rt documents. The respondent also agreed to pay ₹25,000/- for the treatment. This compromise is signed by the parties in Hindi.
Significantly, both the parties signed various documents before the learned Commissioner in English. The applicant and respondent put their signatures on the application, reply and statements in English and no signatures were put in Hindi. An application for comparison of the signatures was also filed but it was dismissed by the learned Commissioner and rightly so because there were no signatures in Hindi to enable the examiner to compare the signatures with the disputed signatures on the Agreement.
::: Downloaded on - 26/09/2023 20:35:23 :::CIS 1219. The agreement shows that there was some insurance policy of the applicant from NIC and the respondent had assured .
to get the compensation disbursed under the Policy. The applicant never claimed in the application or his statement on oath that any such policy existed. No such policy was produced;
therefore, the very premise of the agreement that the policy of existed and the money was to be disbursed to the applicant has not been established before the Court.
20. rt The applicant examined Bisham Singh (PW-4) and Jasmer Singh (PW-5) to prove the agreement. Learned Commissioner declined to place reliance upon their testimony in the absence of the statement of the author. The reason given by the learned Commissioner for declining to place reliance in the absence of the best evidence cannot be said to be perverse.
Maybe this Court would have taken a different view had it been discharging the duties of the Commissioner while appreciating this document; however, that is not sufficient to interfere with the findings of fact recorded by the learned Commissioner.
21. No other point was urged.
::: Downloaded on - 26/09/2023 20:35:23 :::CIS 1322. Therefore, there is no misreading of the evidence led before the learned Commissioner and the substantial question .
of law is answered accordingly.
Final Order:
23. In view of the above, the present appeal fails and the same is dismissed. Pending miscellaneous applications, if any, of shall also stand disposed of.
rt (Rakesh Kainthla)
Judge
26th September, 2023
(saurav pathania)
::: Downloaded on - 26/09/2023 20:35:23 :::CIS