Rajasthan High Court - Jaipur
National Insurance Co Ltd vs Tara Chand And Another on 28 June, 2022
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 8096/2011
National Insurance Company Ltd., having its Registered Office at
3, Middleton Street, Kolkata, West Bengal- 700071 and having its
Regional Office at "Jeevan Nidhi", 2 nd Floor, Bhawani Singh Road,
Jaipur-302005, Jaipur- through its Constituent Attorney.
---Non-Claimant/-Appellant
Versus
1. Tara Chand Rawat R/o Sh. Gamira Ji Rawat, aged about 33
years, R/o Village- Mayapur, Post-Rajgarh, via- Saradhana,
District- Ajmer, Rajasthan, presently residing at- Fatehpuriya
Doyam, Tehsil-Beawar, District-Ajmer, Rajasthan
---Claimant-Respondent
2. Sh. Tilak Raj S/o Sh. Prabhudaya, R/o-House No.317/30, Gurjar Basti, Sabariya Mohalla, Nagra, Ajmer, Rajasthan.
Non-Claimant/Respondent For Appellant(s) : Mr. Sandeep Pathak, Adv.
Ms. Jaya Pathak, Adv.
Ms. Vartika Mehra, Adv.
For Respondent(s) : Mr. Jai Prakash Gupta, Adv.
Mr. Ravi Singh, Adv.
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment 28/06/2022 Instant appeal has been preferred by the appellant- Insurance Company under Section 30 of the Workmen's Compensation Act, 1923 (for short the 'Act of 1923') challenging the judgment and award dated 31.10.2011 by which the claim petition filed by the claimant-respondent has been allowed and the appellant-Insurance Company has been directed to pay compensation of Rs. 7,18,218/- to the claimant-respondent with interest.
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(2 of 11) [CMA-8096/2011] Counsel for the appellant-Insurance Company submits that the accident occurred at Ajmer while the injured was resident of village-Rajgarh, District Ajmer and he has submitted the claim petition before the Court of Commissioner-Workmen's Compensation at Ajmer who was not having any territorial jurisdiction to entertain the same.
He further submits that the relationship of employer and employee was not established on record because no such documentary evidence was placed on record to show that there ever existed any relationship of employee or employer between the injured and the respondent No.1 as the respondent No.1 has not appeared before the Commissioner despite service of notice.
Counsel further submits that the injured has sustained 30% permanent disability which has illegally been treated as 100% disability for calculating the loss in earning capacity.
Counsel has placed reliance on a judgment of the Hon'ble Apex Court delivered in the case of Oriental Insurance Company Ltds Vs. Mohd. Nasir & Anr., reported in 2010 R.A.R 33 (SC).
Counsel further submits that looking to the facts and circumstances of the case, the Commissioner has committed serious illegality in allowing the claim petition filed by the claimant-respondent which is required to be quashed and set aside by this Court.
Per contra, learned counsel for the claimant-respondent opposed the arguments raised by the counsel for the appellant- Insurance Company and submitted that as per Section 21 of the Act of 1923, the Commissioner was having territorial jurisdiction to entertain the claim petition filed by the claimant-respondent as (Downloaded on 25/12/2022 at 12:09:44 AM) (3 of 11) [CMA-8096/2011] at the time of accident and the filing of the claim petition, the injured was residing within the territorial jurisdiction of Beawar. He further submits that even the office of the appellant-Insurance Company is also situated.
He further submitted that their existed relationship of employer and employee between the injured and the respondent No.1 and this fact is a finding of fact which cannot be re- appreciated by the High Court by exercising its jurisdiction contained under Section 30 of the Act of 1923.
He further submits that in the cases of Golla Rajanna and Ors. Vs. The Divisional Manager and Ors., reported in 2017 (1) SCC 45 & North-East Karnataka Road Transport Corporation and Ors. Vs. Smt. Sujata reported in (2019) 11 SCC 514, the Hon'ble Apex Court has held that the finding of fact is not required to be re-appreciated by the High Court by exercising its jurisdiction contained under Section 30 of the Act of 1923.
He further submits that no substantial question of law is involved in the present case and no illegality has been committed by the Commissioner while allowing the claim petition filed by the claimant-respondent.
Counsel for the claimant-respondent has also placed reliance on a judgment of Hon'ble Supreme Court delivered in the case of Malti Sardar Vs. national Insurance Company Ltd. & Ors., reported in 2016(3) SCC 43.
Lastly, counsel for the claimant-respondent submitted that 30% permanent disability has caused 100% disability to the earning capacity of the injured.
Heard and considered the arguments of both sides. (Downloaded on 25/12/2022 at 12:09:44 AM)
(4 of 11) [CMA-8096/2011] It is not in dispute that the accident has occurred within the territorial jurisdiction of the Commissioner where the claim petition for compensation was submitted. It is also not in dispute that the office of the appellant-Insurance Company situated within the territorial jurisdiction of the Commissioner where the claim petition was submitted by the claimant-respondent.
Section 21 of the Act of 1923 deals with the venue of proceedings which reads as under:-
"21. Venue of proceedings and transfer.- [(1) Where any matter is under this Act to be done by or before a Commissioner, the same shall, subject to the provisions of this Act and to any rules made hereunder, be done by or before the Commissioner for the area in which-
(a) the accident took place which resulted in the injury; or
(b) the workman or in case of his death, the dependant claiming the compensation ordinarily resides; or
(c) the employer has his registered office:
Provided that no matter shall be processed before or by a Commissioner, other than the Commissioner having jurisdiction over the area in which the accident took place, without his giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned:
Provided further that, where the Workman, being the master of a ship or a seaman or the captain or a member of the crew of an aircraft or a workman in a motor vehicle or a company, meets with the accident outside India any such matter may be done by or before a Commissioner for the area in which the owner or agent of the ship, aircraft or motor vehicle resides or carries on business or the registered office of the company is situate, as the case may be.
(1A) If a Commissioner, other than the Commissioner with whom any money has been deposited under section 8, proceeds with a matter under this Act, the former may for the proper disposal of the matter call for transfer of any records or money remaining with the latter and on receipt of such a request, he shall comply with the same.] (Downloaded on 25/12/2022 at 12:09:44 AM) (5 of 11) [CMA-8096/2011] (2) If a Commissioner is satisfied [that any matter arising out of any proceedings pending before him] can be more conveniently dealt with by any other Commissioner, whether in the same State or not, he may, subject to rules made under this Act, order such matter to be transferred to such other Commissioner either for report or for disposal, and, if he does so, shall forthwith transmit to such other Commissioner all documents relevant for the decision of such matter and, where the matter is transferred for disposal, shall also transmit in the prescribed manner any money remaining in his hands or invested by his for the benefit of any party to the proceedings:
[Provided that the Commissioner shall not, where any party to the proceedings had appeared before him, make any order of transfer relating to the distribution among dependants of a lump sum without giving such party an opportunity of being heard:] (3) The Commissioner to whom any matter is so transferred shall, subject to rules made under this Act, inquire there into and, if the matter was transferred for report, return his report thereon or, if the matter was transferred for disposal, continue the proceedings as if they had originally commenced before him.
(4) On receipt of a report from a Commissioner to whom any matter has been transferred for report under sub-
section (2), the Commissioner by whom it, was referred shall decide the matter referred in conformity with such report.
[(5) The State Government may transfer any matter from any Commissioner appointed by it to any other Commissioner appointed by it.]"
A plain reading of Section 21 of the Act of 1923 clearly shows that the petition can be preferred before the Commissioner within local jurisdiction of the Commissioner where the claimant resides.
In the instant case, the fact is clear that the appellant was performing his job within the territorial jurisdiction of the Commissioner, therefore, as per the provisions of Section 21 of (Downloaded on 25/12/2022 at 12:09:44 AM) (6 of 11) [CMA-8096/2011] the Act of 1923, the Commissioner was having jurisdiction to hear and decide the matter. Therefore, the claim petition was rightly preferred by the claimant before the Commissioner.
So far as the contentions raised by the counsel for the appellant-Insurance Company with regard to relationship of employer and employee is concerned, the same is a finding of fact recorded by the Commissioner which cannot be re-appreciated by this Court by exercising its appellate jurisdiction contained under Section 30 of the Act of 1923.
In the opinion of this Court, the learned Commissioner is the last authority on facts as it has been held by the Hon'ble Apex court in the cases of Golla Rajanna (supra) in para Nos. 8 and 10 which reads as under:-
"8. Section 30 of the Act provides for appeal to the High Court. To the extent, the provision reads as follows;
30. Appeals.-(1) An appeal shall lie to the High Courtfrom 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 dto be such dependant;
(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
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(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 teh appeal is not less than three hundred rupees (Emphasis supplied)
10. Under the schment 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 question 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." The similar view has been taken by the Hon'ble Apex Court in the case of North-East Karnataka Road Transport Corporation (supra) and it has been specifically held in Para Nos. 9 to 12 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 dependants of the deceased employee, the extent of disability caused to the 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 (Downloaded on 25/12/2022 at 12:09:44 AM) (8 of 11) [CMA-8096/2011] way, the findings recorded thereon are regarded as the findings of fact.
11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.
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 he 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."
So far as the contentions raised by the counsel for the appellant with regard to the issue of computation of compensation made by the Commissioner, Beawar while treating the disability with disability percentage mentioned in the certificate, the co- ordinate Bench of this Court in the case of Oriental Insurance Company Vs. Gulab Singh & Ors., reported in 2019 (0) Supreme (Rajasthan) 1976 has held this issue as under:-
"This Court has already decided the issue of treating the disability percentage more than the one shown in the medical certificate by the learned Authority in the case of The New India Assurance Co. Ltd. Vs. Chand Mohd. & Anr. (S.B. Civil Misc. Appeal No.753/2006), relevant portion whereof reads as under:
Heard learned counsel for the parties and the learned advocates assisting on the controversy in issue on the request of this Court and perused the precedent law cited at the Bar.
Section 4 of the WC Act exhaustively deals with the compensation on account of death in Sub-Section 1(a), compensation on account of permanent total disablement in Sub-Section 1(b) and compensation on account of permanent partial disablement in Sub-Section 1(c) and compensation on account of temporary disablement in Sub- Section 1(d). This Court takes note of the definition of partial disablement in Section 2(g) and total disablement in Section 2(l), which read as follows :-(Downloaded on 25/12/2022 at 12:09:44 AM)
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(g) " partial disablement" means, where the
disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement;
(l) total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement:
Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent. or more;"
This Court also takes note of the fact that where permanent partial disablement is resulting from the injury specified in Part-II of Schedule-I, the compensation has to be taken as payable in the case of permanent total disablement reflecting the percentage of loss of earning capacity. This includes Part-I and Part-II.
Further the injuries which are not mentioned in Schedule-I can of course be taken care of by assessing the loss of earning capacity as per the certificate issued by the qualified medical practitioner.
The WC Act lays down an elaborate procedure for both the parties to lead evidence and the procedure is prescribed under Section 23 of the Act including securing of attendance of witnesses, compelling for production of documents and material objects, as per the Code of Civil Procedure.
Thus, where an exhaustive outcome has been arrived for computation of compensation under the WC Act while adhering to the provisions of Section 4, no further adjudication or application of mind is required by the Commissioner or Court but in a case where it has been pleaded by the claimant workman that his injuries are such extraordinary as it would render reduction in his earning capacity beyond the specified limits of Schedule-I and (Downloaded on 25/12/2022 at 12:09:44 AM) (10 of 11) [CMA-8096/2011] Section 4, then it shall be open for the claimant workman to adopt the procedure under Section 23 of the Act and drive home the point as to what was the extraordinary loss caused to him by the injury in question. This shall include the comparison of the injury with loss of earning capacity and the commensurating impact of the injury upon the nature of work being carried out by the claimant in question.
If the Commissioner after considering all evidence from both the sides has arrived at the factual matrix which clearly indicate that the injury in question is directly causing complete loss or a degree of loss in the current employment then the same has to be considered while granting compensation.
The best examples of co-relation between the employment and injury could be amputated leg and driver's job, amputated hand and tailor's and plumber's job etc. The precedent law cited by the learned counsel for the respondents/claimants including Pratap Narain Singh (4 Judge Bench Judgment of Hon'ble Apex Court) (supra), K. Janardan (supra), Lal Singh Rajput (supra), Chandi Dan Charan (supra), Bajaj Allianz General Insurance Company (supra), Iffco Tokio General Insurance Co. (supra) and North East Karnataka Road Transport Corporation (supra) are directly holding the field and the only judgment which gave strength to the submissions of the learned counsel appearing on behalf of the insurance companies namely, Oriental Insurance Company Limited vs. Mohd. Nasir and another (supra) has been held to be per incuriam by the Hon'ble Supreme Court in North East Karnataka Road Transport Corporation (supra).
Thus, the substantial question is decided against the insurance company."
The judgment cited by the learned counsel for the appellant- Insurance Company in the case of Mohd. Nasir (supra) is not applicable on the facts of the instant case as the same is distinguishable.
After perusing the record as well as the law cited above in the foregoing paras, it is clear that the injury in question causing 30% disability was rightly treated as 100% loss of earning (Downloaded on 25/12/2022 at 12:09:44 AM) (11 of 11) [CMA-8096/2011] capacity by the learned Commissioner after considering all evidence on record.
The Hon'ble Apex Court in the cases of Golla Rajanna (supra) and North-East Karnataka Road Transport Corporation has held that if the facts have been decided by the Workmen's Compensation Commissioner which are based on factual matrix, then the High Court should restrict itself to the scope of the appeal contained under Section 30 of the Act of 1923, only to the substantial question of law, rather to re-appreicate the evidence on record and record its own finding on the percentage of disability.
Thus, no interference is called for in the impugned judgment and resultantly, the present appeal is hereby dismissed.
Stay application and all pending application(s), if any, also stand(s) dismissed.
(ANOOP KUMAR DHAND),J PRAVESH/66 (Downloaded on 25/12/2022 at 12:09:44 AM) Powered by TCPDF (www.tcpdf.org)