Rajasthan High Court - Jaipur
Iffco Tokio General Insurance Co Ltd vs Iqbal Aziz And Others on 3 October, 2017
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Miscellaneous Appeal No. 1704 / 2012
Iffco Tokio General Insurance Company Ltd., Having Its Regional
Office At Kateva Bhawan, Behind Ganpati Plaza, M.I. Road, Jaipur
Through Regional Manager
----Appellant
Versus
1. Iqbal Aziz S/o Shri Abdulla Caste - Muslim, Aged About 30
Years, R/o House No. 3, R.K. Bhatta Basti, Colony No. 6, Jaipur
(Raj.)
2. Nanu Ram S/o Shri Mangi Lal Sharma, R/o V & P Chithwari,
Tehsil Chomun, Dist. - Jaipur (Raj.)
----Respondents
_____________________________________________________ For Appellant(s) : Mr. Vimal Sharma For Respondent(s) : Mr. Sandeep Mathur _____________________________________________________ HON'BLE MR. JUSTICE INDERJEET SINGH Judgment 03/10/2017
1. The instant appeal has been filed by the appellant against the judgment dated 22.11.2011 passed by the Commissioner, Workman Compensation, Jaipur District II, Jaipur in Claim Case No.WCC/NF/156/2009.
2. The brief facts of the case are that claimant has filed claim petition claiming compensation on account of alleged 20.56 permanent disability and the injury sustained by him during the course of employment under respondent No.2 being Khalasi on 1.5.2009 when he was going towards Ram Bagh to Gandhi Nagar. At the time of accident, he was getting salary to the tune of Rs.4,000/-. It is stated that the vehicle was insured with appellant (2 of 5) [CMA-1704/2012] company and respondent No.2 was the owner. The respondent No.2 - owner of the vehicle did not appear before the learned Commissioner. The Insurance Company in its reply denied the averments made in the claim petition and pleaded that no notice was ever served upon the Insurance Company under Section 10 of the Act. It is also stated in the reply that no information of accident was furnished to the Company and therefore the insurance company is not liable to pay the compensation in view of breach of policy conditions.
3. Counsel for the appellant has argued that there is no relationship of employee and employer between the claimant and respondent No.2 i.e. owner of the vehicle. Counsel for the appellant further argued that the doctor has issued a disability certificate in favour of the claimant only to the extent of 20.56% whereas the Commissioner has wrongly considered the loss of earning capacity as 35% while calculating the compensation. It is further argued that the learned Commissioner has wrongly awarded the interest from the date of accident.
4. Counsel for the respondent has argued that the learned Commissioner after considering the evidence available on record has arrived at a finding that there is a relationship of employee and employer and further after considering the nature of job and opinion given by the doctor has rightly held that there is a loss of 35% in earning capacity because the claimant was working as Khallasi on the truck. Counsel further submits that the claimant is entitled to receive the interest from the date of accident.
5. Heard learned counsel for the parties and perused the (3 of 5) [CMA-1704/2012] record.
6. The contention raised by the appellant regarding no relationship of employee and employer between the claimant and owner of the vehicle is not acceptable as the Commissioner has given a finding in favour of the claimant on this issue. The contention regarding loss of earning capacity to the tune of 35% is also not acceptable as the Commissioner looking to the nature of job performed by the claimant and also considering his future difficulties in lifting weight etc. has rightly given a finding regarding loss of earning capacity. In my opinion, the Commissioner is the last authority on facts.
7. The Hon'ble Supreme Court recently in the case of Golla Rajanna etc. Vs. The Divisional Manager & Another, reported in 2017 (1) RAR 35 (SC) has held as under:-
"9. Section 30 of the Act provides for appeals to the High Court. To the extent, the provision reads as follows:
30. Appeals.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
[(aa) an order awarding interest or penalty Under Section 4A;]
(b) an order refusing to allow redemption of a half- monthly payment;
(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;
(4 of 5) [CMA-1704/2012]
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of Sub- section (2) of Section 12;
or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees: (Emphasis supplied)
10. The Workmen's Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse.
Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the Respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmen's Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmen's Compensation Commissioner.
11. 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.
8. The Hon'ble Supreme Court in the matter of Saberabibi Yakubbhai Shaikh and Ors. vs. National Insurance Co. Ltd. and Ors., reported in 2014 (2) SCC 298 has held as under:-
(5 of 5) [CMA-1704/2012] "10. In view of the aforesaid settled proposition of law, the appeal is allowed and the judgment and order of the High Court is set aside. The Appellants shall be entitled to interest at the rate of 12% from the date of the accident. No cost."
9. In that view of the matter, I find that the Commissioner has not committed any illegality in passing of the award in favour of the claimant for the reasons: firstly, no substantial question of law is made out in this appeal in view of the judgment passed by the Hon'ble Supreme Court in the case of Golla Rajanna etc.(supra); secondly, the interest has rightly been awarded from the date of accident as held by the Hon'ble Supreme Court in the matter of Saberabibi Yakubbhai Shaikh and Ors. (supra); and thirdly, the Commissioner is the last authority on the facts.
11. In that view of the matter, the appeal is dismissed. The stay application stand dismissed.
(INDERJEET SINGH),J.
Pdaiya/95