Jammu & Kashmir High Court - Srinagar Bench
Divisional Manager And Anr. (National ... vs Ajaz Ahmad Mir And Anr on 23 October, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
S. No. 17
Regular list
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
FAO(WC) 2/2021 CM(1890/2021)
DIVISIONAL MANAGER AND ANR. (NATIONAL INSURANCE ...Petitioner/Appellant(s)
COMPANY LIMITED)
Through: Mr. Nissar A. Dendru, Adv.
Vs.
AJAZ AHMAD MIR AND ANR. ...Respondent(s)
Through: Mr. Faizan Ahmad, Adv vice
Mr. Munir Ahmad Bhat, Adv for R-1.
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
23.10.2024 (Oral):
1. The instant appeal has been filed by the appellants herein under Section 30 of the Employees Compensation Act of 1923 (for short the Act) against the Order dated 30th December 2020 (for short the impugned order) passed, in case titled as "Ajaz Ahmad Mir v. Nazir Ahmad Mir And others", by the Commissioner under the Act (for short the Commissioner)
2. Facts giving rise to the filling of the instant appeal are that that respondent 1 herein filed a claim petition under the Act before the Commissioner under (Assistant Labour Commissioner, Baramulla) for compensation contending therein that while being employed as a mechanic in the construction of Mini Power Project situated at DrangTangmargon 15.09.2013, by respondent 2 herein met with an accident on 15th January 2013 at about 12:30 PM in the course of his such employment and sustained multiple injuries, whereupon, he came to be shifted to SHM Hospital Srinagar for treatment, and, consequently suffered a disability rendering him unable to perform his job/work as mechanic, whereupon, he approached the employer respondent 2 herein, though being aware about the accident for payment of compensation which he failed to pay compelling him to maintain the claim petition before the Commissioner for compensation.
3. In the said claim petition filed by the claimant respondent 1 herein, the employer came to be impleaded as a party respondent 1 therein the claim petition and the appellants came to be impleaded as respondents 2 and 3 respectively, owing to the fact that the project in question of the respondent employer was covered by insurance cover extended by the said respondent 2 and 3.
4. Upon entertaining the claim petition on 9 th February 2017, the Commissioner issued notice to the respondents in the claim petition, in response to which notice, the employer respondent 1 therein as also the respondents 2 and 3 therein the claim petition appeared and filed their response to the claim petition and while the employer respondent in the claim petition admitted the claim petition, the respondent 2 and 3 contested the same, on the premise that the claimant had no cause of action against them and that the claim petition is hit by the principles of estoppels, waiver and acquiescence besides being barred by limitation as also liable for dismissal for misjoinder and non-joinder of necessary while denying the accident as also alleged injury, sustained by the claimant.
5. Respondent 1 in the claim petition being the employer respondent 2 herein in response to the claim petition admitted that the claimant respondent 1 herein was engaged by him as an employee in mechanical section of Mini Power Power Project, Drang Tangmarg, and that the same was insured with National Insurance Company Limited being respondent 2 and 3 in the claim petition.
6. The Commissioner on the basis of the pleadings of the contesting parties framed the following issues:-
a) Whether the applicant is entitled for the compensation for the injury sustained by during the course of employment within non-applicant no. 1?
b) Whether the non-applicant no. 1 is having valid insurance policy at the time of accident of applicant?
c) If so, the quantum of compensation and who is liable for payment of compensation?
7. The claimant before the Commissioner appeared as his own witness in support of the claim petition and also examined three witness namely Abdul Rehmad Ahanger, Mohammad Haneef Khan & Aijaz Ahmad Ahanger, whereas, in rebuttal the employer respondent 1 therein produced one witness namely Ishfaq Ahmad Ahanger, however, no witness/evidence was produced or adduced by respondent 2 and 3 in the claim petition being appellants herein.
8. The Commissioner after adjudicating upon the claim petition and having regard to the case setup by the parties in their respective pleadings inasmuch as the evidence on record adduced by the claimant and the employer respondent 1therein allowed the claim petition and held the claimant entitled to an amount of compensation of Rs. 16,63,166/- payable by the respondent 2 and 3 therein to the claimant while directing depositing of the same before the Commissioner while holding the said respondent 2 and 3 therein liable to indemnify insured the employer respondent 1 therein in the claimant petition.
9. The appellants herein have questioned the impugned order in the instant appeal on the following grounds:-
1. That the impugned award is bad in law for the following reasons:-
That the learned tribunal framed following issuesin the claim petition. The issue no. 1 reads as under:-
a) Whether the applicant is entitled for compensation for the injury sustained by him during the course of employment with non-applicant No. l ?
b) Whether the non-applicant No. l is having valid insurance policy at the time of accident of applicant ?
c) If so, the quantum of compensation and who is liable for payment of compensation.
So for as the issue No. l is concerned the appellants do not raise any dispute to its funding returned by the learned Commissioner. But so far as the issue No.2 and 3 are concerned the appellants have to submit as under:-
The issue No.2 has not been decided correctly. There was no policy of insurance issued by the appellants in favour of respondent No. 2. The appellants had issued policy of insurance in the name of M/S Magpie Hydel Constructions Operation Pvt. Ltd. and not in the name of respondent No. 2. The policy of insurance was on the record of the claim petition. But this fact has been totally ignored by the learned Commissioner. The privity Of contract Of indemnity between the appellant and the respondent No.2. Hence the issue incorrectly been decided in favour of the respondent no. 1.
The copy of insurance policy is placed on record as ANNEXURE-II to this appeal.
The learned Commissioner has cleverly not mentioned the existence of policy of insurance on record of claim petition.
There could have been only relevant material in the shape of policy of insurance which would have decided the validity and subsistence of insurance contract between the appellants and respondent No. 2.
Neither the respondent No.2 proved by any cogent evidence that the insurance policy was issued in his favour by the appellants. Therefore the finding on issue NO.2 is bad in law and deserves to be set-aside.
That the finding returned on issue No.3 is al for following reasons bad in law for following reasons:-
That the disability sustained by the respondent No.l. was temporary and even partial. The disability caused to the respondent was not permanent. The certificate of medical board relied upon by the learned Commissioner nowhere mentions the disablement of permanent nature. Therefore the finding returned on permanent nature of disablement is also bad in law. That in order to assess the loss of earning capacity the disability has close nexus with it. The loss of earning capacity caused •to the respondent no. 1 due to disability has not been proved which is against the law laid down in The Employees Compensation Act 1923. That the order for payment of medical expenses for Implant at Rs.5.50 lac is also bad in law. There is no evidence on record to Show that the respondent No. l incurred the said amount for cochlear implant. The incurring of the medical expenses is condition precedent for grant of said relief. Therefore the order for payment of Rs.5.50 lacs is against law and deserves to be set-aside. That the medical expenses for cochlear implant surgery was neither pleaded by respondent no. 1 nor proved. Under law no evidence can be led implant against a fact which has not been pleaded. Such an evidence is not admissible under law, That the interest on the awarded mount has been calculated at Rs.5,39,369/- from the date of accident till 15.12.2020, which is also against the law. The accrual Of interest arise when the default is caused by the employer in making the payment of awarded amount. Therefore the grant of interest is not in accordance with law and deserves consideration by this Hon'ble court.
That the finding on deduction of income tax on interest is also bad in law and deserve to be set-aside.
That appellants reserve the right to table re grounds At the time Of the hearing of appeal.
That the appellants have deposited the award amounting to Rs. 16,63,166.00 as statutory deposit before the learned Commissioner for filing this appeal: The certificate / receipt for Rs.16,63,166.00 is placed on record as ANNEXURE-4 to this appeal.
Heard learned counsel for the parties and perused the record.
10. According to Mr. Nissar A. Dendru, appearing counsel for the appellants, despite the plea of limitation setup by the appellants before the Commissioner in opposition to the claim petition filed by the respondent 1 herein, the Commissioner did not address to the said plea of limitation, and, instead proceeded to pass the impugned award. Mr. Dendru, would further contends that the Commissioner also awarded compensation in favour of the claimant-respondent 1 herein on a higher side while granting the same qua the Cochlear Implant surgery to the tune of Rs. 5.50 lacs and also awarded interest in favour of the claimant respondent 1 herein in violation of the mandate of Section 4-A (3) of the Act of 1923.
11. On the contrary, the counsel for the respondent 1 herein would contend that the Commissioner passed the impugned award validly and legally.
12. Before proceeding to advert to the appeal in hand, it is significant to note here that section 30 of the Act of 1923 provides that the provision of appeals to lie before the High Court from an order of the Commissioner awarding compensation and the interest or penalty under Section 4 (A), however, first provisos appended to Section 30, inter alia provides that no appeal shall lie against any order passed by the Commissioner unless a substantial question of law is involved in the appeal.
13. Keeping in mind the aforesaid position of law and reverting back to the case in hand, admittedly the claimant respondent 1 herein in the claim petition had contended that while being in the employment as mechanic of the employer respondent 1 herein, met with an accident on 15 th January 2013 at 12:30 pm and sustained grievous injury thereof. It is also not in dispute that on account of the said accident, the claimant respondent 1 preferred the claim petition on 9th February 2017 beyond the period of limitation prescribed under Section 10 of the Act of 1923.
14. Insofar as the aforesaid first plea of limitation raised by the counsel for the appellants is concerned, perusal of the claim petition filed by the respondent 1 herein would tend to show that the claimant respondent 1 herein at para 10 of the same had specifically stated and prayed that the delay, if any in filling the claim application under the Act may be condoned on the basis of sufficient grounds, as he, the claimant was under
medical treatment for a period of more than 2 years in S.H.M. Hospital Srinagar on account of the injuries sustained in the accident ion question whereupon he was finally declared disabled in the month of September 2013 by the Medical experts.
Perusal of the reply filed to the claim petition by the appellants herein would tend to show that no reply to the said plea of condonation of delay or the facts pleaded therein for the same had been submitted by the appellants herein suggesting that the appellants herein in the reply filed to the claim petition have admitted the said contention of the claimant respondent 1 herein, as such, under these circumstances, there would have been no reason or occasion for the Commissioner to discard the plea of condonation of delay sought by the claimant respondent herein in the claim petition. It is significant to note here that the matter of condonation of delay in entertaining a time barred application under Section 10 (1) of the Act of 1923 Proviso (3) appended thereto on exclusive discretion has been vested unto the Commissioner for condoning the delay entertaining a claim petition under the Act beyond the prescribed period of limitation, if the Commissioner believes that the cause explained is sufficient to condone such delay.
Thus, in view of the aforesaid position obtaining in the matter, the plea of limitation raised by the counsel for the appellants herein is not legally tenable and consequently pales into insignificance.
15. Insofar as the aforesaid next plea raised by the counsel for the appellants qua the award of amount of Rs. 5.50 lacs by the Commissioner to the claimant respondent 1 with regard to the Cochlear Implant surgery is concerned, record reveals that the said amount of compensation has been awarded in favour of the claimant respondent 1 on the basis of evidence producedby the claimant respondent 1 herein before the Commissioner having proved the injuries sustained by him on account of accident in question as also the disability having occurred thereof. As has been noticed in the preceding paras, admittedly, the appellants herein being respondents 2 and 3 in the claim petition did not lead any evidence in rebuttal to the evidence led by the claimant respondent 1 herein, as such, in this view of the matter, the appellant herein cannot now join an issue on the aforesaid quantum of compensation awarded by the Commissioner to the claimant respondent 1 herein, based on facts, which facts stand determined by the final authority on facts under the Act, being the Commissioner, and which facts otherwise also cannot be reconsidered, re-appreciated or looked into by this Court or else the evidence produced before him while dealing with the instant appeal having been filed under Section 30 supra of the Act, which is maintainable before this Court only on substantial question of law and the aforesaid plea of facts of the counsel for the appellants, as such cannot by any stretch of imagination said to be a substantial question of law warranting interference by this Court in the instant appeal.
16. Insofar as the last aforesaid plea raised by the counsel for the appellant that the award of interest by the commissioner in favour of the claimant respondent 1 herein over the amount of compensation is concerned, law is no more res integrain this regard and stands settled by the Apex Court in case titled as "Ved Prakash Garg vs Premi Devi &Ors" reported in 1997 (8) SCC page 1, wherein, it has been held that Commissioner under the Act of 1923 can award interest under Section 4-A (3) at the statutory rates from the date of accident. Thus, in this view the matter as well, the aforesaid plea of the counsel for the appellants is not entertainable and is accordingly rejected.
17. Viewed thus, what has been observed, considered and analyzed hereinabove, the impugned order passed by the Commissioner does not call for any interference.
18. Resultantly appeal fails, and is dismissed.
19. The Xerox of the record of the case summoned from the Commissioner shall be retained by the registry on the record filed of the instant appeal.
(JAVED IQBAL WANI) JUDGE SRINAGAR 23.10.2024 Hilal Ahmad Whether the Order is reportable? Yes/No Whether the Order is speaking? Yes/No Hilal Ahmad Ganie I attest to the accuracy and authenticity of this document