Madhya Pradesh High Court
Usha Bai vs Yogendra Singh on 23 January, 2002
Equivalent citations: 2003ACJ1509, (2002)IIILLJ87MP
JUDGMENT
1. This appeal is directed against the order of the Commissioner under the Workmen's Compensation Act, 1923, dated June 6, 1997 whereby the claim of appellant has been dismissed.
2. Shortly stated, facts of the case are that deceased Molai Sahu was employed with respondent as Driver-cum-Labourer. He was receiving Rs. 40.00 per day while driving the tractor and on other days he was getting Rs. 30.00 per day. At the time of the accident, on August 22, 1994, he was 26 years old.
3. The appellant, wife of the deceased, has claimed Rs. 1,50,000.00 by way of compensation and also demanded Rs. 50,000.00 towards penalty and filed the petition for award of Rs. 2,00,000.00 and interest at the rate of 12% per annum thereon.
4. The respondent contested the claim and stated that the deceased was not driver but was a lagua (agricultural labourer). He was not having driving licence. But in the absence of the respondent, deceased had taken the tractor on his own to bring stone slabs and the accident occurred. This did not arise out of and in the course of his employment. Deceased was getting Rs. 400.00 per month only. As he was not employed as Driver on or before the date of accident, the claim is liable to be dismissed.
5. On the pleadings of the parties, the Commissioner framed issues for determination of the dispute between them. Among them, the important issue is whether the deceased Molai Sahu died in accident arising out of and in the course of his employment. While deciding the other issues, learned Commissioner holds that (a) the appellant is the wife of deceased and was depending on him, (b) at the time of the death, deceased Molai Sahu was 28 years old and was getting Rs. 400.00 per month, and (c) there is no defect of non-joinder of necessary parties and the application is maintainable under the provisions of Workmen's Compensation Act. But issue No. 1 was decided against the claimant. Consequently, the application was dismissed, aggrieved by which, the appellant has filed the present appeal under Section 30 of the Workmen's Compensation Act, 1923.
6. Shri R.K. Gupta, learned counsel for the respondent, contended that there is no case for interference as the claimant has not been able to prove that deceased Molai Sahu died in the accident arising out of and in the course of his employment and this is a finding of fact, which cannot be interfered in this appeal and which can be entertained in case there is substantive question of law.
7. Shri Rajesh Dubey, learned counsel for the appellant, contended that the Commissioner has not considered the pleadings, material evidence and documents resulting in erroneous and perverse finding. Therefore, substantial question of law arises and appeal is maintainable and finding can be set right in appeal. He further submitted that it is not in dispute that deceased Molai Sahu was in the employment of the respondent. The tractor involved in the present case belongs to the respondent and the deceased, during the course of his employment, was bringing the stone for respondent and accident had occurred out of and in the course of his employment. In the circumstances, the respondent is liable to pay compensation.
8. So far as the scope of Section 30 of Workmen's Compensation Act, 1923 is concerned (sic) a wider construction has to be given in considering whether substantial question of law arises. Substantial question of law is a mixed question of law and facts, for which it will be open to the Court to consider the evidence for the determination of the question. The power of High Court to interfere with finding of fact where substantial question of law is involved includes setting aside a finding of fact based on misreading or ignoring of the evidence, The Apex Court in Chunnilal V. Mehta v. C. S. & M. Co. Ltd., AIR 1962 SC 1314 held that the following tests should, by and large, or any one of them be satisfied to find whether a substantial question of law is involved, viz. (1) whether directly or indirectly it affects substantial rights of parties, or (2) the question is of general public importance; or (3) whether it is an open question in the sense that the issue is not settled by pronouncement of the Supreme Court or the Privy Council or the Federal Court, or (4) the issue is not free from difficulty, or (5) that it calls for a discussion for alternative views. In Nellikottu Kolleriyil Madhavi v. Kavakkalathil Kalikutty and Ors., 1997 (1) SCC 749, it has been held that non-consideration of the material evidence is a substantial question of law. Recently, Apex Court in Ishwar Dass Jain v. Sohanlal, 2001 (1) SCC 434 held that there are two situations in which interference with findings of fact is permissible, namely, (1) The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion and (ii) the second situation is where finding has been arrived at by the Appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise. In the present case where material evidence has been ignored by the Workmen's Compensation Commissioner and there is a total non-application of mind by the Commissioner to the pleadings, resulting in erroneous finding, in such case also, same can be set right in appeal under Section 30 of the Act; as such, present appeal involves substantial question of law.
9. The learned counsel for the respondent has relied on the judgments of this Court in Divisional Engineer, Madhya Pradesh Electricity Board v. Mantobai, Widow of Lalkishan, 1990-I-LLJ-25; Madhya Pradesh Mining Corporation, Satna v. Munda Kol 1990 JLJ 413 and Gulabchand Gambhirmal v. Kudilal Govidram Seksaria, 1996 MPLJ 334. In all the above judgments, it has been held that the appeal can be entertained when it involves substantial question of law. We have found that the present appeal involves substantial question of law, therefore, the matter deserves to be considered on merits.
10. Recently in Maghar Singh v. Jaswant Singh, 1998 (9) SCC 134 : 1999-III-LLJ (Suppl)-71, the Apex Court considered the case of Seasonal farm labourer, who while operating a 'toka' machine on the farm of respondent, sustained injuries. It held that the machine belonged to the employer and while operating the machine, the accident had occurred and there was no reason to believe that the appellant would wrongly point a finger at the respondent as his employer. Similar is the position here. Deceased Molai Sahu was driving the tractor of the respondent while he was in his employment and died while he was bringing stone slabs by the tractor. The burden to prove that accident had not occurred in course of his employment was on employer. In the circumstances Molai Sahu was a workman as defined in Section 2(1)(n)(i)(a)(c) read with item (XXV), (XXVI) of Schedule of Section 2(1)(n) of the Workmen's Compensation Act,
11. We have gone through the record, pleadings, evidence and documents produced by the parties and the order passed by the Commissioner. From the pleadings, which are not in dispute, it is clear that on the date of the accident, deceased Molai Sahu was working with respondent. Contention of respondent is that he was a 'Lagua' (agricultural labourer) and was getting Rs. 400.00 per month while the contention of the appellant is that he was driver-cum-labourer and was getting Rs. 40.00 per day on the day when he was driving the tractor and on other days, he was getting Rs. 30.00 per day. In the circumstances, it was not in dispute that on the date of accident, deceased was in the employment of respondent. The question is whether he was driving the tractor during the course of his employment or on his own as contended by the respondent.
12. We have considered the evidence adduced in the case. Respondent Yogendra Pratap Singh (NAW 1) has appeared as witness. In his statement, he has not stated even a word to the effect that on the date of the accident, deceased had driven the tractor on his own and was bringing stone slabs for his own purpose. He has admitted in his statement that on the date of the accident, his driver Shankar Prasad was on leave, which fact has also been supported by Shankar Prasad (NAW 2) that he was on leave since last 7 days, prior to the accident, Only Rambahori Kumhar (NAW 3) has stated that respondent Yogendra Pratap Singh had not asked Molai Sahu to bring stones. It appears that Rambahori Kumhar (NAW 3) is an interested witness and has stated such facts which have not been stated even by Yogendra Pratap Singh in his statement. From the perusal of the evidence of Usha Bai (AW 1) and Sarman Lal (AW 2), which has not been challenged by the respondent, it is proved that the deceased was usually driving the tractor of respondent in addition to other agriculture work and Sarman Lal (AW2) has admitted in his cross-examination the suggestion that since the date of marriage, his son-in-law was driving the tractor. He has also stated in paragraph 2 of his statement that whenever his son-in-law was visiting his village Uchehra, he was coming by the tractor. This part of his statement has not been challenged in cross-examination.
13. On the basis of evidence, in our considered opinion, deceased Molai Sahu was a workman. He was driving tractor to bring stone slabs for respondent. He died in the accident arising out of and in the course of his employment. The Commissioner recorded the finding that at the time of the accident, deceased was not employed or the accident had not arisen out of and in the course of employment which is perverse and based on ignoring the material evidence, therefore, set aside and respondent is held liable to pay compensation in accordance with provisions of Workmen's Compensation. Act, 1923.
14. To determine the compensation, criteria is wages which deceased was getting at the time of accident, his age and relevant factor to be multiplied with wages. Respondent has admitted that deceased was getting Rs. 400.00 per month as he was paying Rs. 20.00 per day to deceased Molai Sahu. The appellant's contention that deceased Molai Sahu was getting Rs. 1500.00 per month, or Rs. 40.00 per day, is not supported by any other independent evidence. In the circumstances, considering the admission by the respondent in the reply, and also evidence that deceased was getting Rs. 20.00 per day, which comes to Rs. 400.00 per month, this finding, which has also been recorded by the Commissioner, is found to be correct. Therefore, it is held that the deceased was getting Rs. 400.00 per month from the respondent. The age of the deceased has been found 28 years by the Commissioner. As per Schedule to Section 4, factor 211.79 multiplied by 50% of the monthly wages of the deceased workman, the amount comes to Rs. 42,358.00 but under Section 4(1)(a), minimum compensation to which appellant is entitled is Rs. 50,000.00. Accordingly, the appellant is entitled to compensation of Rs. 50,000.00 (rupees fifty thousand) with interest at the rate of 9% (nine per cent) per annum.
15. Respondent has not paid the compensation within the time prescribed and there is no justification for the delay, so respondent is also liable to pay penalty. Looking to the facts and circumstances of the case, we impose penalty of Rs. 5,000.00 (rupees five thousand), which after recovery, will be credited to the State Government.
16. In the result, we allow the appeal and set aside the order of the Commissioner. The appellant shall be paid compensation of Rs. 50,000.00 (rupees fifty thousand) with interest at the rate of 9% (nine per cent) per annum from the date of the accident i.e. August 22, 1994, till the date of payment. We direct the respondent to deposit the amount and penalty before the Commissioner under Workmen's Compensation Act, District Satna, within three months from today, failing which the appellant will be entitled to recover the same with enhanced interest at the rate of 12% (twelve per cent) per annum till realisation.
17. We quantify costs of this appeal at Rs. 2,000.00 (rupees two thousand) payable by the respondent to the appellant.