Andhra HC (Pre-Telangana)
Depot Manager, A.P.S.R.T.C., Nirmal vs Abdul Sattar on 22 December, 1994
Equivalent citations: 1996ACJ1156, 1995(1)ALT413, (1995)IILLJ318AP
ORDER S. Parvatha Rao, J.
1. This is an appeal preferred by the employer i.e., the Depot Manager, A. P. S. R. T. C., Nirmal under Section 30 of the Workmen's Compensation Act, 1923 ('the Act', for short) against the order No. D/2308/86 dated 24-11-1987 of the Commissioner for Workmen's Compensation, Warangal allowing the workman's application for compensation numbered as W. C. Case No. 34 of 86 and awarding a sum of Rs. 30,240/- as compensation payable by the employer together with interest at 6% from 3-3-1986.
2. The respondent in this appeal is the applicant workman, Abdul Sattar, It is not in dispute that he was employed by the appellant herein in the year 1961 as cleaner and that he was promoted as a mechanic in the year 1972. In this application dated 28-2-1986 for compensation under the Act in Form-F under Rule 20 of the Workmen's Compensation Rules, 1924, he stated that on 1-12-1981 he received personal inure by accident arising out of and in the course his employment. Under "the causes of the injury" in the said application, he merely stated "eyes effected". He also stated that his monthly wages amount to Rs. 500/- and that notice of the accident was served on 14th day of February, 1972. He claimed a compensation of Rs. 32,000/-.
3. In the counter dated 17-1-1987 filed by the employer i.e., the appellant herein, it was stated that the workman was under sick list from 14-2-1978 continuously till he retired on medical grounds, and that he was directed to the Civil Surgeon R. T. C. Hospital at Hyderabad on 2-7-1979 for medical examination and report, and that the Civil Surgeon on 4-7-1979 had sent a certificate that the workman was found unfit for all categories of service, and that he retired since 4-7-1979. It was also stated that the workmen was paid all his due amounts in February, 1980 and that his last drawn monthly wages as on 4-7-1979 was Rs. 449-40 Ps. It was denied that the applicant received any personal injury on 1-12-1981 on account of any accident arising arising out of and in the course of employment as he retiree on 4-7-1979 itself. It was also stated that no accident suffered by the workman was made known to the employer. It was also stated that the workman's monthly wages as on 4-7-1979 was Rs. 449-40 Ps. and that his claim for Rs. 32,000/- was without any basis and that there was no liability on the part of the employer to pay any compensation to him under the Act. Notice of accident said to have been served on the employer on 14-2-1972, was also denied. It was also contended that the claim of the workman was barred by limitation.
4. The workman examined himself as A. W. 1. He asserted that his last drawn wages was Rs. 510/-. As regards the accident and the injury allegedly suffered by him, he stated as follows in his deposition :-
"On 14-2-1978 I am doing repair work of APZ 6711 in the pit to attend the complaint of Brake roll of the vehicle. I am a mechanic in chart-I I am checking the four wheels of the vehicle and other ancillary repairs work. While attending to my duties on Bosch pump to repair it diesel oil tricked on my both eyes and I tried to do the job while smothering eyes by because of having pain I reported to the mechanical foreman who has end me to the Nirmal Government Hospital for examination. The Doctor has given injection and put eyes drops and has given a report which I Have handed it over to Mechanical Foreman. I directed to R. T. C. Hospital at Musheerabad. After checking for 2 days, by ambulance I sent to Sarojini Devi Hospital for further treatment. I was in the hospital for 3 months. After 3 months I was sent to R. T. C. Hospital at Musheerabad who has sent report to the Depot Manager, Nirmal. I have asked for duty. I told the Depot Manger that I could do light work. When questioned what type of work I can do. No reply is given by him Again I am sent R. T. C. Hospital at a certificate that I am medically unfit and sent it to the Depot Manager, Normal in 1979. I am retired on medical grounds. I have asked for employment but I am paid retirement benefits not compensation. After awaiting for payment of compensation as the same is not filed I have filed the claim claiming Rs. 32,000/- as compensation".
5. In cross-examination, he stated as follows :-
"I attended duty on the log sheet complaint also to attend maintenance. Due to a value cover flow pipe there is a tricking for, the Bosch Pump. Both engine oil and diesel if it is excess, flow from that same pipe. From Bosch over flow pipe even in diesel oil also flows through it. Bosch pump is fixed to Engine block. When I am tighting the bolts of Bosch Pump Oil tricked on me. The injury is caused to me at 11.00 a.m. I did double duty work from 8.00 to 11.00 a.m. I have not seen trickling oil from the Bosch Pump. The oil feel on my head and trickled on my eyes by drops. First it has fallen on my eyes and while I am rubbing it also feel on my head".
6. No evidence was adduce, oral or documentary, on behalf of the employer.
7. This was all the material evidence before the commissioner based on which he passed the order dated 24-11-1987. In the said order, he observed that it was argued on behalf of the employer that Abdul Sattar retired on 4-7-1979 and that therefore his contention that he received injury on 1-12-1981 was not based on evidence and therefore his application was liable to be dismissed. The entire reasoning and findings of the Commissioner for holding that the workman has lost his eye sight on account of the injuries caused to him on 14-2-1978 by accident arising out of his employment is as follows :-
"Now the point for consideration is whether the applicant has received injury during the course of his employment. The evidence of A. W. 1 (the workman Abdul Sattar) clearly speaks that he is doing the repenting work to APZ 6711 to attend the complaint of break roll of the vehicle and he is mechanic in Chart-I. As per the evidence of A. W. 1 he is checking the 4 wheels of the vehicle and other ancillary repairing and while attending to his duties bosch pump diesel oil trickled on both his eyes and still he attended to his hob though there is heavy pain. The evidence on A. W. 1 is that he had handed over the report of the Doctor of the Nirmal Government Hospital to the mechanical foreman and he was directed to R. T. C. Hospital, Musheerabad from where he was sent to Sarojini Devi Eye Hospital where he was treated for 3 months. This clearly establishes that the applicant is under the respondent and he received the injuries while working on 14-2-1978. It is also admitted by the respondent that the applicant was under sick list from 14-2-1978 and retired on 4-7-1979 on medical grounds agree medical grounds after medical examination. this clearly shows that the applicant has received injury on 14-2-1978 and he is retired on 4-7-1979 and the injury is so caused clearly is during the course of employment. Though it is stated by the respondent that all amounts are paid, it is never stated that the respondent has paid compensation of the injury caused during the course of this employment..... The applicant has lost sight completely. As on the date of examination and this should be on account of injury caused to him on 14-2-1978 which is caused during the course of employment of the applicant. Even admitted by the responded that applicant is retired on medical grounds. This clearly established the loss of eye is due to injury caused to him while on duty."
8. The main contentions advanced by the learned Counsel for the appellant are : firstly, that the application of the workman was inordinately delayed and that there was no grounds for condoning the delay and that order was passed condoning the delay after notice to the applicant; Secondly, that there was total variance between the please in the application and the evidence given by the workman as regards the date of the accident and the occurrence itself; and thirdly, that the findings of the Commissioner that the workman received any injury by reason of any accident during and in the course of employment leading to his loss of eye sight, is wholly unsupported by any evidence on record and the impugned order is therefore liable to be set aside.
9. The learned Counsel for the workman contends that by virtue of the proviso to sub-section (1) of Section 30 of the Act, no appeal shall lie against the order of the Commissioner "unless a substantial question of law is involved in the appeal" and that in the present appeal, there is no substantial question of law involved. He relies on the judgment of learned Single Judge of the Kerala High Court in N. L. Lalan v. V. A. John 1972 ACJ 248 (Kerala). Krishna Iyer, J., in that case interpreted the expression 'substantial question of Law' and observed that it should be interpreted in a restricted and narrow way "so as to inhibit appeals at the instance of employers even if there be some questions of law or gross errors of fact, unless very substantial legal issues arise". Elaborating on that he held :
"If it is of great public importance or if it arises so frequently as to affect a large class of people or is so basic to the operation of the Act itself, one may designate the question of law as substantial. But, where it is covered already by precedents or the law on that aspect is well settled, the mere difficult of applying the facts to that law cannot make it a substantial question of law".
That seems to be a rather narrower vies than the view taken by a Constitution Bench of the Supreme Court in Chunilal V. Mehta v. C. S. & M. Co. Ltd. . In that case, the Supreme Court was dealing with the meaning to be given to the expression 'substantial question of law' Occurring in Article 133 (1) (a) of the Constitution of India. The Supreme Court reviewed the decision of the various High Courts and after noticing that the view taken by the Nagpur High Court in Dinkarrao v. Rattansey AIR 1949 Nagpur 300 as too wide and that the view taken by the Bombay High Court in Kaikhushroo Pirojsha Ghiara v. C. P. Syndicate Ltd. AIR 1949 Bombay 134 as rather narrow, approved the view taken by a Full Bench of the Madras High Court in R. Subba Rao v. No Veeraju and held as follows :-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is no finally settled by this Court or by the Privy council or by the Federal Course or is not free from difficulty or calls for discussion of alternative views. It the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law".
Following that decision of the Supreme Court, the Gujarat High Court in Chanchalben v. Burjorji Dinshawji AIR 1970 ACJ 440 (Gujarat) observed :
"Therefore, even if the question of law is not of general public importance but is one which concerns only the dispute between the parities, if the question of law is fairly arguable or where there is room for difference of opinion on it then the question would be a substantial question of law."
This decision was rendered with reference to Section 30 of the Act. In Deputy Commissioner v. Rama Krishna also the Supreme Court held that "a question of law of importance to the parties" would be a substantial question of law under Section 110 of the Civil Procedure Code (Prior to Amendment Act, 1973). Chunilal's case (supra) was followed by the Supreme Court in Pankaj Bhargava v. Mohinder Nath . While interpreting the expression 'substantial question of law' occurring in Section 39 of the Delhi Rent Control Act, 1958, also a provision providing for an appeal to the High Court, the Supreme Court has observed in that case that "what is a substantial question of law would certainly depend upon facts and circumstances of every case" and also referred to the observations of the Judicial Committee in Raghunath Prasad v. Deputy Commissioner of Partabgarh AIR 1927 PC 110 that a question of law to be considered a 'substantial question of law' need not be one of general importance and it could be a substantial question' as between the parties."
10. In the present case, there is no doubt that the burden on the respondent to establish that he received an injury and that the said injury was received by him during the course of his employment and that because of that injury, he lost his eye sight. The only evidence adduced adduced by him to establish the same was him oral evidence.
11. Before examining his evidence, one very important aspect of this case has to be noticed. The respondent has stated in his application dated 28-2-1986 that he received personal injury on 1-12-1981. He had not given even the bare facts as to how he received that injury under the column in the Form of the application 'the cause of the injury'. He merely stated 'eyes effected'. He had not stated now his eyes were effected. I am of the view that such an application has no validity. Even after the counter was filed, he did not petition for amendment atleast as regards the date of the occurrence. When the application does not give any details whatsoever, it is always possible for a workman to come forward at a later stage with any story, as it happened in this case. The respondent in the present case, after getting the facts from the counter of the employer, even changed the date of occurrence by more than 3 years. The employer stated that he went on sick leave from 14-2-1978 and that date was stated to be the date when the accident occurred in the oral evidence of the respondent. The important question that arises in cases of this type is whether mere oral evidence of the workman is sufficient to accept what all he says when there is nothing else to support what he stated. I am of the view that even considering that the Act is a beneficial legislation for helping workmen who are not always in a position to help themselves and defend themselves, some reliable, acceptable and cogent evidence should be there in support of the case of the workman to established : firstly, that he was injured; and secondly, that that injury arose out of and in the course of his employment. Tested from that angle, I find that in the present case, there is no such evidence and that the findings of the Commissioner on the question whether the workman in the present case received an injury at all, and whether that injury resulted in his total blindness of both eyes, and whether that injury occurred out of and in the course of his employment, are not based on any evidence.
12. Looking at the oral evidence of the workman, what all he stated was that while he was doing repair work on 14-2-1978, some diesel oil trickled on his eyes. In his cross-examination, he stated that while he was tightening bolts of Bosch pump, oil trickled on him. He stated that it fell on his head and trickled on his eyes by drops and then again he stated that it fell on his eyes and that while he was rubbing it also fell on his head. He had not stated that engine or diesel oil falling on his eyes caused any injury to his eyes or how that could cause any injury. In fact, he did not state anything about any injury to his eyes or about any loss of vision on 14-2-1978 or even subsequently on account of any accident or injury received by him on 14-2-1978. He had not filed any material whatsoever as to what sort of treatment he received in respect of his eyes. There is nothing to support what the respondent stated as to what happened on 14-2-1978 or thereafter that the mechanical foreman sent him to Nirmal Government Hospital; that thereafter he was directed to R. T. C. Hospital at Musheerabad; that he was sent after two days to Sarojini Devi Hospital and that he was there for 3 months; that he was again sent to R. T. C. Hospital at Musheerabad; and that thereafter he was once again sent to R. T. C. Hospital at Tarnaka. There was no question of his being sent by anyone to a Government Hospital and a Government doctor giving a report to be given to the foreman. The learned Counsel for the appellant points out that there was or is no R. T. C. Hospital at Musheerabad - R. T. C. Hospital was and is at Tarnaka only. In his examination in chief, he stated that he was sent to R. T. C. Hospital at Musheerabad and that the doctor there sent a report to Depot Manager at Nirmal and that thereafter - in his words - "I told the Doctor Manager that I could do light work". Even then he did not say that his eyes were affected or that he lost his vision. If really his eyes were affected and he lost his vision, it is obvious that he could not do even any lightwork. He then said that the Doctor at Tarnaka gave a certificate that he was medically unfit and that then he was retired on medical grounds. Even here, he did not state that the Doctor mentioned anything about his blindness. If really he was rendered blind, he could not have asked for employment. On the other hand, he stated that in his own words - "I have asked for employment but I am paid retirement benefits not compensation. Thus, he accepts that he received retirement benefits. It is not his case that he asked for compensation for the alleged accident or injury. Even otherwise, there is no explanation whatsoever why he did not approach the Commissioner for Workmen's Compensation immediately and why he had to wait for nearly 8 years to make an application for compensation under the Act. This is not case where the workman was bed ridden and could not move out or do anything for months together because of coma or fractures of bones etc. The respondent did not find any difficulty in collecting his retirement benefits indeed he retired on 4-7-1979 i.e., more than a year after 14-2-1978. He himself stated that he was asking for employment before he was retired. If really there was an injury to him on 14-2-1978 there was no need for him to wait even till 4-7-1979. As I have already pointed out, even reading the entire evidence of the workman, nowhere he stated that he received any 'injury' to his eyes by reason of which he lost his vision and yet the Commissioner reasons as follows :-
"It is also admitted by the respondent that the applicant was under sick list from 14-2-1978 and retired on 4-7-1979 on medical grounds after medical examination. This clearly shows that the applicant has received injury on 14-2-1978 and he is retired on 4-7-1979 and the injury is so caused clearly is during the course of employment....
"The applicant has lost sight completely. As on the date of examination and this should be on account of injury caused to him on 14-2-1978 which is caused during the course of employment of the applicant."
Merely because the respondent was on sick list from 14-2-1978, it does not follow that he was involved in any accident or injured at all, not to speak of while on work or in the course of his employment, whether on 14-2-1978 or any date anterior to 4-7-1979. The surmises of the Commissioner that the fact that the respondent was on sick list "clearly" showed that he had received an injury on 14-2-1978, is in the realm of conjecture and illogical. Nor does it follow that the respondent "lost sight completely" either on 14-2-1978 or by 4-7-1979 when he retired, when not even the respondent stated so in his evidence - on the other hand he wanted employment. These findings are therefore not on the basis of any evidence on record. There was no whisper even by the workman himself that any injury occurred to his eyes because of the oil trickling, even assuming that such a thing happened on 14-2-1978; he had not stated in his evidence that he lost his eye sight because of that on that day or at any time before he retired on 4-7-1979.
13. It is well established that a finding which is perverse gives rise to a question of law. In Sree Meenakshi Mills Ltd. v. I. T. Commr. the Supreme Court, after reviewing the law as to what is a question of fact and what is a question of law, had held that a finding on a question of fact is open to attack as erroneous in law when there is no evidence to support it or if it is perverse. That was for the purpose of sub-section (1) of Section 66 of the Income-Tax Act, 1922 which provided for questions of law being referred to the High Court. In Gurbaksh Singh v. Nikka Singh a four Judges Bench of the Supreme Court has held that a finding not based on evidence in the case but which was merely an ipsi dixit of the Court of fact cannot bind the High Court while exercising jurisdiction under Section 100 of the CPC. In Vinod Kumar v. Surjit Kaur the Supreme Court has held that findings rendered on either non-existent or fictitious material cannot be construed as findings of fact and once they ceased to be findings of fact and they stand denuded on their binding force on the appellate or revisional Court. Incidentally in that case, the Supreme Court also has held that :
"The pleadings of the parties from the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case."
This observation is relevant in the present case because the respondent had not pleaded that he suffered any injury on 14-2-1978 and had not stated in his application anything about how he had his "eye affected". In Subramanyam v. Nagappa 1986 (1) ALT 32, a learned single Judge of this Court in a Second Appeal held :
"Since the reasons given by the appellate Judge are perverse, I hold that there is no consideration at all of the appeal and it constitutes a substantial question of law within the meaning of Section 100 of the Code of Civil Procedure."
S. Padmanabhan, J. of the Kerala High Court, if I may say so with respect, has fairly summarised the position in State v. Saroja as follows :-
"......... But a finding on a question of fact can also, though seldom, give rise to a substantial question of law. If a finding on a question of fact having material bearing on the rights of parties is vitiated for any reason that can give rise to a substantial question of law. A fact alleged by one party and denied by the opposite party may require existence of facts or absence of facts and circumstance to be proved for entering a finding. If burden of proof is wrongly cast on its basis a finding is arrived at materially affecting the right of a party it will give rise to a substantial question of law. Courts could enter findings on questions of facts only on the basis of materials on record taking into account the available legal presumptions and burden of proof. If finding on a fact is entered without any material at all simply on the basis of surmises and conjectures that finding is definitely vitiated. That will be the case if material items of acceptable evidence or legal presumptions are overlooked in entering findings. Acceptance of inadmissible evidence for entering findings also may create a similar situation. Drawing inference or basing findings from inadmissible materials may also vitiate the findings. In all such cases those factual findings could be interfered with in second appeal. If there is acceptable evidence its insufficiency for the finding or the possibility of a different finding may not be a reason for interference. Likewise a wrong finding on a question of fact by appreciation of acceptable evidence may also not justify interference in second appeal."
14. Mack, J., held in P. C. Abdulla Kutty v. C. Janaki that if a finding of fact was "so incorrect so opposed to the evidence or so perverse as to be brought into the category of a question of law" it could be interfered with under Section 30 of the Act. In Vijay Ram v. Janak Raj 1981 ACJ 84 (J&K) the Jammu & Kashmir High Court observed as follows :-
Where on a particular point there is evidence for and against a finding recorded by the Commissioner on taking a particular view of the evidence, if cannot be questioned howsoever erroneous that finding may be, as no question of law can be said to have arisen in such a case. Where, however, a finding of fact is based upon no evidence at all a substantial question of law arises and an appeal under Section 30 is competent."
The decision of a Division Bench of the Calcutta High Court in Bhusan Chandra v. G. Henderson Co. AIR 1921 Calcutta 774 was referred to. That case also arose on an appeal under Section 30 of the Act. The Division Bench held as follows :-
"The Commissioner again finds that there can be no doubt that the machine was in motion when he (the applicant) tried to clean the jam. There is no evidence to support this finding. As the finding is based upon no evidence, that is a substantial question of law which entitled the applicant to maintain this appeal."
In N. Paul & Co. v. Ram Kali , the Delhi High Court also seems to have taken the view that the Court under Section 30 of the Act could interfere with findings of fact by the Commissioner if they are shown to be perverse in any manner.
15. After anxious consideration of the evidence of the workman and the circumstances of the case like firstly, that the respondent had not stated anything in his application as regards the alleged accident or injury and secondly, that the respondent had come forward in his evidence with a new date as to the occurrence of the alleged accident and thirdly, that the respondent had not raised any claim whatsoever for more than 8 years and presented the application without any explanation whatsoever for the delay and fourthly, that the respondent had not stated in his evidence that he suffered any injury to his eyes on 14-2-1978 or at any time prior to his retirement on 4-7-1979 or that he lost his eye sight because of that, even assuming that any oil fell on his eyes on 14-2-1978 and fifthly, in the absence of any material to assume that engine or diesel oil effects the eyes and render one blind, I have to hold that the findings of the Commissioner as regards the alleged accident and the connection between that accident and the loss of eye sight by the respondent, are not supported by any evidence on record or reason or logic and are based merely on conjectures and surmises. Therefore, I have to hold that the respondent had not established any case for claiming compensation under the Act.
In the result, the appeal is allowed and the order of the Commissioner is set aside. No costs.
C. M. P. No. 14453 of 1991 :
The respondent filed this C. M. P. to permit him to amend the date of accident as 14-2-1978 instead of 1-12-1981 wherever occurring in the claim statement. The learned Counsel for the appellant opposes this. In the view I have taken, I find that this is a belated petition and in view of the evidence already given by the workman that the so called accident occurred on 14-2-1978 it cannot alter the position that he wholly departed from his original statement in his application that it occurred on 1-12-1981. In the view I have taken in the appeal, this Petition has to be dismissed and it is accordingly dismissed.