Rajasthan High Court - Jodhpur
National Insurance Co. Ltd vs Tek Chand And Ors. (2024:Rj-Jd:37317) on 9 September, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:37317]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 1209/2016
National Insurance Company Limited, Bapu Bazar, Udaipur
through Deputy Manager, National Insurance Company Limited,
Jodhpur Regional office: 3-4 Floor, Sun Tower, Main Pal Road,
Jodhpur (Raj.)
----Appellant
Versus
1. Tek Chand S/o Shri Jagannath Rawat, Resident of Nauva
Bada, P.S. Dabok, Tehsil- Mawali, District- Udaipur.
2. Smt. Narayani W/o Shri Tek Chand Rawat, Resident of
Nauva Bada, P.S. Dabok, Tehsil- Mawali, District- Udaipur.
3. Smt. Khemani W/o late Shri Mangilal Rawat, Resident of
Nauva Bada, P.S. Dabok, Tehsil- Mawali, District- Udaipur.
4. Devilal S/o Shri Chen Ram Dangi, Resident of Mangari
Vikarani, Tehsil Mawali, District- Udaipur.
----Respondents
For Appellant(s) : Mr. Sanjeev Johari, Sr. Advocate with
Mr. Subhankar Johari.
For Respondent(s) : Mr. Amit Saran.
Mr. Digvijay Singh.
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment 09/09/2024
1. The appellant/non-claimant No.2 United India Insurance Company Ltd. has preferred the instant misc. appeal under Section 30 of the Workmen's Compensation Act 1923 ('Act pf 1923') challenging the validity of judgment and award dated 26.02.2016 passed by learned Workmen Compensation Commissioner, Udaipur in Claim Case No.WC/F-57/2011, whereby the Commissioner has awarded compensation to the tune of Rs.3,65,005/- in favour of claimants alongwith interest @ 12% per (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (2 of 13) [CMA-1209/2016] annum from the date of filing claim petition i.e. 13.07.2011 and imposed penalty of Rs.73,001/- on the non-claimant No.1/owner.
2. Before considering the appeal on merits, it is necessary to look into the scope of interference by the High Court in the appeal under Section 30 of the Act of 1923. It is no more res integra that such appeal to the High Court, against the order of the Commissioner, lie only against the specific orders set out in Clause
(a) to (e) of Section 30 of the Act of 1923 with a further rider contained in Proviso-I of Section 30 that the appeal must involve substantial question(s) of law. The position of law is well settled that the appeal provided under Section 30 of the Act of 1923 to the High Court, against the order of Commissioner is not like a regular first appeal akin to the first appeal filed under Section 96 of the Code of Civil Procedure, 1908. The regular civil first appeal under Section 96 of CPC can be heard both on facts and law whereas the scope of appellate court to decide the appeal under Section 30 of the Act of 1923 is confined only to examine the substantial question(s) of law arising in the case. It is therefore, clear that the High Court is first required to find out as to whether the present appeal involves any substantial question(s) of law or not? If the substantial question(s) of law arises, the appeal may be admitted for final hearing on merits else the same is liable to be dismissed with reasons that it does not involve any substantial question(s) of law.
3. Now coming to the appeal at hand, the Insurance Company has suggested following questions of law for consideration by this Court:-
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1. Whether the Insurance Premium taken for one Employee, could be extended to any so called 'Karmkar', as while insuring a Tractor, one Employee can always be its Driver only, because on Tractor there cannot be any other person allowed to sit anywhere including its Mudguard?
2. Whether the provisions of W.C. Act are at all applicable in the present case where the employment of deceased could not be substantiated by the claimants, and thus the Claim Petition was not even maintainable?
3. Whether the non-impleadment of the Insured, particularly when any transfer of ownership of the Vehicle was not brought on record before the appellant-Insurer, could at all make the Claim petition maintainable?
4. Whether in the case, in which the subject case is not at all covered in the Insurance Policy, any liability could at all be fixed on the appellant-Insurer?
5. Whether the learned Commissioner below has concluded correct within the provisions of W.C. Act 1923 while deciding and concluding that the appellant insurer only is liable to pay the entire compensation?
4. In order to examine as to whether the aforesaid questions are essentially questions of fact or can be considered as substantial question(s) of law, it is necessary to consider the facts of case in brief and the findings recorded by the Commissioner.
5. This is a case where claimants filed claim petition under Section 3/4 of the Act of 1923 for compensation on account of death of the bread earner of their family namely, Shri Mangilal Rawat (deceased herein) who died on 13.06.2011 while working as labourer under the employment of non-claimant No.1/respondent No.4 herein. In the claim petition, the claimants alleged that deceased Mangilal Rawat was working under the employment and direction of non-claimant No.1 on his tractor bearing registration number RJ-09-R-4789 for last six months. The non-claimant No.1 was paying Rs.4500/- as monthly salary and Rs.50/- allowance per day to deceased Mangilal Rawat, thus he was earning Rs.6000/- per month. At the time of accident, the (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (4 of 13) [CMA-1209/2016] deceased was thirty years of age. On the fateful day i.e. on 13.06.2011, while the deceased was working as labourer on the tractor, the said tractor was plied by the owner-cum-driver i.e. non-claimant No.1. The said tractor was plied by the non-claimant rashly and negligently and on account of applying the break, the tractor turned turtle as a result of which deceased Mangilal fell down and sustained grievous injuries. He was immediately taken to hospital in 108 Ambulance to Maharana Bhupal Govt. Hospital, Udaipur, however, he was declared dead by the doctors. The deceased died on the spot. Deceased was in employment of the non-claimant No.1 as full time employee and he was employed as labourer on the tractor. Despite apprising about the incident, the non-claimants did not deposit the compensation in the court, therefore, the claimants filed the claim petition claiming compensation to tune of Rs.10,00,000/- along with interest and penalty from the non-claimants.
6. After registration of the claim, notices were issued to the non-claimants. On behalf of non-claimant No.1 i.e. employer, reply to claim petition was filed on 06.06.2012 while denying the fact that the deceased was every appointed by him as labourer. The non-claimant No.1 denied that the deceased was ever paid monthly salary and allowance as claimed in the claim petition. The non-claimant No.1 further pleaded that deceased might have died in some accident, however, a false claim has been foisted against him and in connivance with the police and other persons charge sheet was filed against him in the court with a view to claim compensation. It was further alleged by non-claimant No.1 that the insurance company was apprised of the incident alongwith (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (5 of 13) [CMA-1209/2016] requisite details and, therefore, the insurance company was liable to pay the compensation and penalty as well.
7. On behalf of non-claimant No.2 i.e. appellant insurance company reply to claim petition was filed on 10.01.2012 while denying the facts alleged in the claim petition. It was alleged that on the date of accident, the deceased was not in the employment of non-claimant No.1 and that no accident had taken place on 13.06.2011. The non-claimant No.2 admitted that the vehicle was insured and the premium qua the driver was charged and no premium was charged by it for the labourer, therefore, no liability could be fastened upon the insurance company. An objection with regard to driver of the vehicle not having valid and effective licence was taken, inasmuch as the driver of the tractor who was having LMV licence, cannot ply a transport vehicle like tractor. It was thus stated by the insurance company that on account of violation of conditions of the policy, it was not liable to pay compensation. It was further stated by the appellant/non-claimant No.2 that requisite information and documents with respect to accident were not made available by the non-claimant No.1. It was thus prayed that the claim petition be rejected.
8. On the basis of pleadings of the parties, the Commissioner proceeded to frame five issues including relief. In support of their claim, claimant No.1, Tekchand filed his affidavit, upon which he was cross-examined by the non-claimants. During the course of trial, the claimants exhibited documents viz. investigation conducted by the police, postmortem report and other documents. On behalf of non-claimant No.2, affidavit of one Sh. Harish Kumar (DW.2), Branch Manager was filed, and he was cross-examined by (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (6 of 13) [CMA-1209/2016] non-claimant No.1. In the cross-examination, the said witness DW.2 has admitted that in Ex.NA/1, a sum of Rs.25/- was charged as premium towards labourer.
9. The Commissioner thereafter heard the arguments of the parties and after considering the material placed before, it vide judgment and award impugned dated 26.02.2016 proceeded to partly allow the claim petition and awarded compensation of Rs.3,65,005/- along with interest @ 12% per annum and the liability to pay the compensation was fastened upon the appellant insurance company. The Commissioner imposed penalty of Rs.73,001/- upon the non-claimant No.1/employer.
10. Aggrieved by judgment and award dated 26.02.2016, the appellant/non-claimant No.2 has preferred the instant misc. appeal.
11. The instant misc. appeal was admitted by a Coordinate Bench of this Court vide order dated 23.05.2016. While admitting the appeal, the appellant Insurance Company was directed to deposit 70% along with interest of the amount of compensation awarded by the Commissioner Workmen Compensation, including amount already deposited within a period of one month and recovery of the remaining amount qua the appellant was stayed. The amount deposited was directed to be disbursed to the claimant in terms of the award.
12. Learned counsel for the appellant submits that the Commissioner has erred in entertaining the claim petition under the provisions of the Act of 2023. He further submits that claimants have to prove that there was casual connection between the accident and employment. Learned counsel for the appellant (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (7 of 13) [CMA-1209/2016] submits that at the time of accident, the deceased was not doing any job of the employer. He further submits that according to Section 3 of the Act of 1923 death must have occurred during the course of employment, however, in the instant case, the claimants failed to lead any evidence to prove that the deceased was in the employment of the employer and met with the accident while he was in the employment of the employer. Learned counsel for the appellant, therefore, argued that there was no casual connection between the employment and death/incident.
14. Learned counsel for the appellant submits that no premium was charged for more than one employee i.e. driver of the vehicle. He further submits that for a vehicle like tractor, no additional premium could be charged, as nobody is allowed to sit on the mudguard of the tractor. Learned counsel for the appellant further submits that engagement of labourer for discharging a particular work, it cannot be said that the deceased was in the employment of the employer as to as invoke the provisions of the Act of 1923.
15. Learned counsel for the appellant/non-claimant No.2 further submits that the insured i.e. Sh. Bhurilal Menaria was not impleaded as party/non-claimant in the claim petition. Learned counsel for the appellant submits that the vehicle in question was insured from 30.11.2010 to 29.11.2011 in the name of said Sh. Bhurilal Menaria and no information whatsoever in this regard was given to the appellant insurance about transfer of the ownership of the tractor in the name of Devilal (non-claimant No.1), which otherwise was mandatory on the part of non-claimant No.1. (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (8 of 13) [CMA-1209/2016]
16. Learned counsel for the appellant further questioned the interest awarded @ 12% per annum w.e.f. 13.07.2011 and levying of such higher interest on the appellant is absolutely contrary to the contract between the insurer and the insured. Learned counsel for the appellant thus prayed that the instant appeal deserves to be allowed and the impugned judgment and award bet set aside.
15. On the other hand, learned counsel for the respondents submits that all the questions are related to question of facts and may not be treated as substantial question(s) of law.
16. Heard counsel for both parties and perused the material available on record.
17. The substantial question of law (1), referred to supra, is whether the Insurance Premium taken for one Employee, could be extended to any so called 'Karmkar', as while insuring a Tractor, one Employee can always be its Driver only, because on Tractor there cannot be any other person allowed to sit anywhere including its Mudguard. This Court finds that the Commissioner has considered the testimony of witness produced by the non- claimant No.2/insurer i.e. DW.2 Sh. Harish Kumar, who in his cross-examination specifically stated that, " izn'kZ ,u&,&1 esa , ls ch Hkkx es :i;k 25@& vfrfjDr fizeh;e pktZ dj ,d deZdkj dh fjLd doj dj j[kh gSA". In view of this specific admission, the issue sought to be raised by the appellant/non-claimant No.2 that no extra premium was charged covering the labourer, and thus the insurance company is not liable to pay compensation, has rightly been negated by the Commissioner. So far as question No.2 is concerned, this Court finds that the in the claim petition, the (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (9 of 13) [CMA-1209/2016] claimants have contended that on the date of incident i.e. 13.06.2011, the deceased while working as labourer on the tractor of non-claimant No.1 fell down from the tractor on account of rash and negligent driving and applying the breaks suddenly and owing to the injuries he died. The non-claimant No.1, in the reply to claim petition, though has denied the relationship of employee- employer and the factum of accident, however, the Commissioner has observed that from the perusal of the investigation carried out by the police in FIR No.198/2011, it was amply proved that the deceased was in the employment of the non-claimant No.1 on 13.06.2011 and he died during the course of employment. This Court also finds that the Commissioner has considered the documents pertaining to the investigation carried out by the police (Ex.1 and 2) and the postmortem report (Ex.4) and has rightly concluded that the accident occurred during the course of employment on 13.06.2011. This Court finds that after considering the evidence produced before the Commissioner, the Commissioner has rightly held that the incident occurred during the course of employment and there was casual connection between the accident and the employment.
18. Insofar as question of law No.3 is concerned, this Court finds that the registered owner of the tractor was Devilal (non-claimant No.1) and merely because the insurance company was not apprised about the transfer of the ownership of the tractor, the same cannot be a valid reason to disown the liability of paying the compensation. Further, non-impleadment of the earlier owner of the tractor, cannot be a reason enough to exonerate the insurance company from its liability. Insofar as question of law No.4 is (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (10 of 13) [CMA-1209/2016] concerned, this Court finds that the Commissioner has considered the evidence led by the respective parties minutely, inasmuch as the objections raised by the appellant/non-claimant No.2 have been dealt with by the Commissioner. The question No.5 sought to be raised that whether the insurance company can be held liable to pay the compensation is concerned, this Court finds that a sum of Rs.25/- was charged additionally covering the risk of labourer and, therefore, the Commissioner has not committed any error in saddling the liability of paying interest on the compensation.
19. The Employee's Compensation Act is a beneficial legislation aimed at alleviating the sufferings of the workman, who suffers injuries resulting disability or the sufferings of the legal heirs of the workman who dies in such accident. It is settled law that unless the findings of fact recorded by the Commissioner, are not shown to be perverse, the same are not required to be interfered with in the appeal. Any erroneous finding or any error of law cannot be the basis for entertaining an appeal under Section 30 of the Act of 1923 unless such erroneous findings do not give rise to substantial question of law. As far as findings recorded by the Commissioner are based on the material available on record and such findings cannot be held to be perverse by any stretch of imagination. In the case of Krishna Weaving Mills Vs. Chandra Bhaga Devi : 1985(1) WLN 455], a Coordinate Bench of this Court while deciding the appeal under Section 30 of Workman Compensation Act, 1973 has drawn a distinction between the question of law and substantial question of law. It was held that the question of public importance and question of which no final interpretation is available are known as substantial question of (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (11 of 13) [CMA-1209/2016] law. If a question of law is not well settled and the same is of public importance, it may be treated as a substantial question of law. The view has been followed in subsequent judgment delivered by this Court in case of Khuma vs. Shyam Lal :
MANU/RH/1287/2019. The scope of interference under Section 30 of the Act of 1923, on the ground of perversity in the findings of Commissioner, was also considered by the High Court of Gauhati in the case of Oriental Insurance Co. Ltd. Vs. Gita Rani Roy :
MANU/GH/0608/2015 decided on 16.09.2015.
20. Thus, after elaborate discussion on facts and proposition of law, the questions do not fall within the scope of substantial question of law. In this backdrop, this question of law may also not be treated as substantial question of law.
21. The Hon'ble Supreme Court, in case of Golla Rajanna Etc. v. The Divisional Manager & Anr. : 2017 (1) SCC 45 considered the scope of interference by the High Court in the findings of the Commissioner Workman Compensation, under Section 30 of the Act of 1923 and held as under:-
"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."
22. The Hon'ble Supreme Court in case of North East Karnataka Road Transport Corporation Versus Sujatha : 2019 (11) SCC 514] has again held in clear and explicit words that the question as to whether the employee met with an accident, whether the accident (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (12 of 13) [CMA-1209/2016] 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. 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 way, the findings recorded thereon are regarded as the findings of fact.
23. None of the questions as raised and suggested by the counsel for Insurance Company fall within the ambit and purview of substantial question of law. All these questions are essentially the question of facts and require, re-appreciation of the pleadings and evidence. As far as factual issues are concerned, it is clear proposition of law that the jurisdiction to appreciate the pleadings and evidence on record and to deliver findings thereupon lies with the Commissioner. The finding of facts as recorded by the Commissioner are treated as final as the Commissioner is the last authority to record findings on facts. The High Court, while exercising its powers and jurisdiction as appellate court under (Downloaded on 09/09/2024 at 08:50:42 PM) [2024:RJ-JD:37317] (13 of 13) [CMA-1209/2016] Section 30 of Act of 1923 may not and should not re-appreciate the evidence and pleadings to substitute the factual findings of the Commissioner, by its own view. Unless and until the findings recorded by the Commissioner, do not raise any substantial question of law, the same are not required to be interfered with.
24. The upshot of discussion made hereinabove, is that the present appeal does not qualify the requirement of involving any substantial question of law, which is mandatory requirement under Section 30 of the Act of 1923 to entertain the appeal. Accordingly, the appeal has no force and the same is hereby dismissed. The interim order dated 23.05.2016 is vacated. No order as to costs.
(DR. NUPUR BHATI),J 143-DJ/-
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