Rajasthan High Court - Jodhpur
United India Insurance Company Limited vs Smt. Dhai & Ors on 3 September, 2013
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
(1) S.B. CIVIL MISC. APPEAL NO.5/1999
United India Insurance Co. Ltd. Vs. Smt. Dhai & Ors.
(2) S.B. CIVIL MISC. APPEAL NO.751/1998
Smt. Dhai & Anr. Vs. Nathmal & Anr.
Appeals u/s. 30 of the Workmen's
Compensation Act against the judgment of
Workmen's Compensation Commissioner, Sirohi
in Case No.WC/F/19/96 - Smt. Dhai & Anr. Vs.
Nathmal & Anr.
DATE OF JUDGMENT: September 3, 2013
::P R E S E N T::
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. Jagdish Vyas, for appellant United India Insurance
Company Limited in Appeal No.5/99 and respondent No.2
in 751/98
Mr. Surendra Surana, for respondents Smt. Dhai & Sata
Ram in Appeal No.5/99 and appellant-claimants in
751/98
***
BY THE COURT:
These two cross-appeals under Section 30 of the Workmen's Compensation Act, 1923 (for short, hereinafter referred to as 'the Act of 1923') are arising out of the same impugned order, and therefore, both these appeals are heard together and disposed of by this common judgment.
[2]
Civil Misc. Appeal No.5 of 1999 is preferred by the insurance company against the impugned order for assailing the part of the order of the learned Workmen Compensation Commissioner (for short, 'learned Commissioner'), whereby liability to pay compensation is fastened on it whereas Appeal No.751 of 1998 is laid by the appellant-claimants for awarding penalty to the tune of Rs.3 lacs against the insurance company.
The brief facts, giving rise to these appeals, are that respondent No.1 & 2 laid a joint petition under Section 22 of the Act of 1923 claiming compensation against the third respondent and the appellant Insurance Company quantifying the amount of compensation to the tune of Rupees three lacs with interest and penalty amounting to 50% of the claim. In the claim petition, it was inter-alia averred by the respondent-claimants that their son Lakhma Ram was in employment of third respondent as Khalasi and on the fateful day of 9th June 1996, when he was discharging his duties as Khalasi on truck No.RJT 5336, which was driven by the third respondent himself, due to rash and negligent driving of the truck, Lakhma Ram fell down and suffered grave and [3] serious injuries resulting in his death. The respondent- claimants have very specifically pleaded in the claim petition that cause of death of their son Lakhma Ram was due to an accident arising out of and in the course of his employment, and it was further asserted in the claim petition that at the time of death the victim Lakhma Ram was 21 years old. Alleging pertinently in the claim petition that as Khalasi Lakhma Ram was getting salary at the rate of Rs.1500/- per month with allowance of Rs.20/- per day, the respondent-claimants have worked out the total amount of compensation aforesaid.
The appellant Insurance Company was also impleaded as party because at the time of accident the truck was insured with the Insurance Company.
After issuance of notice of the claim petition, on behalf of the third respondent his lawyer appeared before the learned Commissioner at the threshold and tendered its reply to the claim petition, but no endeavor was made by the third respondent to contest the claim thereafter. In the reply, the respondent employer has very candidly admitted the factum of employment but disputed the monthly salary payable to the deceased. [4] Due to absence of the third respondent, the learned Commissioner proceeded ex-parte against the third respondent.
The appellant Insurance Company joined the issue before the learned Commissioner and contested the claim by submitting its reply. In the return, the Insurance Company has pleaded that monthly salary of the deceased was hardly Rs.700/- and further disputed the daily allowance of Rs.20/-. Besides contesting the claim on merits, the insurance company has also averred in the reply that at the time of accident the driver of the vehicle was not having a valid licence to ply the truck, inasmuch as the driving licence expired on 9th of August 1995 and thereafter it was not renewed. With this plea, the insurance company has asserted that it was a clear case of breach of policy conditions, and therefore, no liability to pay compensation be fastened on the appellant insurance company.
On the basis of pleadings of the rival parties, the learned Commissioner framed four issues for determination.
[5]
In order to substantiate the claim, documentary evidence i.e. FIR, Injury Report and the postmortem report of the deceased were submitted besides other challan papers. The second respondent himself appeared in the witness box and testified on oath for authenticating the averments made in the claim petition. No evidence was produced on behalf of the third respondent employer and the appellant insurance company. The learned Commissioner, on the basis of evidence and the materials available on record, partly allowed the claim petition and awarded compensation to the respondent-claimants to the tune of Rs.1,73,528/- and further allowed penalty @ 50% of the amount of compensation. Liability to pay compensation was fastened on appellant Insurance Company whereas liability vis-à-vis penalty was fastened on the third respondent employer.
Learned counsel for the appellant Mr. Jagdish Vyas has vehemently argued that the learned Commissioner has committed grave and serious error while awarding the compensation, inasmuch as the salary of the deceased was Rs.700/- per month + daily allowance of Rs.20/- only, whereas the learned [6] Commissioner has calculated the amount of compensation by presuming monthly salary of the deceased at Rs.1600 + Rs.30 as daily allowance. Mr. Vyas, learned counsel for the appellant submits that this conclusion of the learned Commissioner is contrary to the evidence and other materials on record, and therefore, the impugned order is not sustainable. Learned counsel for the appellant has argued that the accident has occurred due to rash and negligent driving of the truck by its driver at a very fast speed, dashing the vehicle with the electric pole, and at the time of accident the driver of the vehicle was not having a valid licence, therefore, no liability can be fastened on the insurance company for payment of compensation. Learned counsel for the appellant has also urged that there was no material on record to substantiate the monthly salary of the deceased and in this behalf no endeavor was made by the respondent employer to produce the salary/wages register, and as such, in these circumstances, the learned Commissioner has erred in assessing the amount of compensation by presuming monthly salary of the deceased at Rs.1600/- per month with daily allowance of Rs.30/-. Opposing the appeal for enhancement preferred by the respondent-claimants, Mr. Vyas, learned counsel [7] for the appellant Insurance Company, has contended that when the order impugned itself is not sustainable, prayer of the respondent-claimants for enhancement of compensation and the amount of penalty cannot be sustained.
Per contra, learned counsel for the respondent-claimants has argued that the amount of compensation determined by the learned Commissioner is less than the desired amount inasmuch as the learned Commissioner has erroneously treated the age of the deceased as 25 years whereas he was 21 years old only. While conceding on the issue that monthly salary of the deceased was Rs.1500/- with daily allowance of Rs.20/-, Mr. Surendra Surana, learned counsel for the respondent-claimants, has urged that the calculation made by the learned Commissioner by taking monthly salary at Rs.1600/- with daily allowance of Rs.30/- is of course not proper, but looking to the age of the deceased the amount of compensation awarded by the learned Commissioner is towards lower side and the respondent- claimants are entitled for enhanced amount of compensation to the tune of Rupees three lacs. Learned counsel for the respondent-claimants has strenuously [8] argued that there is no merit in the appeal preferred by the Insurance Company and therefore the said appeal merits dismissal and the appeal preferred by the respondent-claimants merits acceptance for enhancement of the amount of compensation as well as interest and penalty.
I have heard the learned counsel for the rival parties, perused the impugned order, and scanned the entire record of the Court of learned Commissioner.
On examining both the appeals thoroughly, in my considered opinion, no substantial question of law is involved and both the appeals are essentially founded on factual aspects of the matter. The endeavor made at the behest of learned counsel for the rival parties is to call upon this Court to re-apprise the evidence and other materials on record for arriving at a different conclusion. It is a trite law that Act of 1923 is a welfare legislation, and therefore, the provisions contained therein are to be interpreted liberally in favour of the workmen. The enactment of the Act of 1923 necessitated for achieving the ideals of a social security. True it is, that the learned Commissioner while assessing compensation has taken [9] monthly salary of the deceased at Rs.1600/- on the basis of statement of the respondent claimant with daily allowance of Rs.30/-, which was not pleaded in the claim petition, but then the learned Commissioner has also assessed the compensation by treating the age of deceased as 25 years and not 21, as asserted by the respondent-claimants. Due to the calculation of the compensation by treating age of the deceased as 25 years, the final outcome of the quantum of compensation has obviously reduced, and therefore, in these circumstances the minor discrepancy in the amount of compensation which is calculated by treating salary of the deceased at Rs.1600/- per month with daily allowance of Rs.30/- deserves no interference in exercise of appellate jurisdiction of this Court for doing substantial justice between the rival parties.
Admittedly, the accident has occurred in the year 1996 and remanding the matter back to the learned Commissioner after one and half decade will unnecessarily prolong the agony of the respondent- claimants. There is umpteen evidence available on record to show that the deceased was in employment of the third respondent as a Khalasi and he had succumbed [10] to the injuries suffered due to an accident arising out and in the course of his employment within the four corners of Section 3 of the Act of 1923 and as such there remains no room of doubt that the respondent-claimants are entitled for compensation under the Act of 1923. Mere calculation error by treating monthly salary of the deceased at a higher rate, which too cannot be completely discredited on the anvil of evidence of respondent-claimants, in the facts and circumstances of the instant case, obviously cannot furnish a ground of challenge to the appellant insurance company because this supposed error cannot be categorized as a substantial question of law within the ambit of Section 30 of the Act of 1925. The finding of the learned Commissioner about monthly salary and daily allowance of the deceased is based on appreciation of evidence which remained unimpeached and therefore the same cannot be faulted. As regard the appeal of the respondent-claimants for enhancement, suffice it to say that treating the age of the deceased as 25 years, instead of 21 years, cannot be questioned at their behest in want of any evidence tendered by them in this behalf. Moreover, this issue is also a pure and simple question of fact and if the learned Commissioner has arrived at a [11] conclusion about the age of the deceased, the same cannot be made subject matter of judicial scrutiny in exercise of appellate jurisdiction of this Court under Section 30 of the Act of 1923. In my considered opinion, this too cannot be categorized as a substantial question of law. Thus, viewed from any angle, may be that the impugned order of the learned Commissioner is not happily worded, but its net effect is that the learned Commissioner has rendered a verdict which has resulted in substantial justice between the rival parties, and therefore, no interference in both these appeals is called for.
The net result of the above discussion is that I find no merit in these appeals and accordingly both these appeals are dismissed.
The costs are made easy.
(P.K. LOHRA), J.
arora/