Kavi Khanna vs Sita Devi & Others

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 93 of 2014 Reserved on:12.10.2023 .

Date of Decision: 06th November, 2023 Kavi Khanna ....Appellant Versus Sita Devi & others.

....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? No. For the Appellant : Mr. Neeraj Gupta, Senior Advocate with Ms. Rinki Kashmiri, Advocate.

For the Respondents : Mr. Anuj Gupta, Advocate.

Rakesh Kainthla,Judge.

The present appeal is directed against the order passed by the learned Commissioner (IV), Shimla, Exercising Powers under the Employee's Compensation Act, 1923, vide which the application for compensation filed by the respondents (claimants before the learned Commissioner) was allowed and compensation of ₹2,34,820/- alongwith interest @12% per annum from 08.08.2002 till its realisation was awarded in favour of _____________________________ Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 2 respondent no.2. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned .

Commissioner for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the claimants filed an application seeking compensation for the death of Jagat Ram. It was pleaded that Jagat Ram was a workman. He was an experienced Carpenter and his services were availed by many persons. Respondent no.1, is the owner of Hotel Satkar, Lakkar Bazar, Shimla and respondent no.2 is looking after the business of Hotel Satkar. The respondents availed the services of Jagat Ram on 7th July 2002. Jagat Ram fell while repairing the window of the hotel. He sustained a head injury and became unconscious. He was taken to IGMC, Shimla, where he was declared brought dead. Jagat Ram was about 58 years old at the time of his death. He was earning more than ₹15,000/- (Rupees Fifteen Thousand) per month by working as a Carpenter. He was employed by the respondent on daily wages of ₹250/- per day. A notice was served upon the respondents to pay the compensation for the death of Jagat Ram. However, no ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 3 compensation was paid. Hence, an application was filed to seek the compensation.

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3. The application was opposed by respondent no. 2 by filing a reply taking preliminary objections regarding lack of maintainability, the application being bad for mis-joinder and non-joinder of parties and the application being barred by limitation. The contents of the application were denied on merits.

It was specifically denied that the respondents had engaged the services of Jagat Ram on 07.07.2002. The relationship between the applicants and Jagat Ram was also denied and it was prayed that the application be dismissed.

4. The learned Commissioner framed the following issues on 19.11.2008:-

1. Whether the applicants are entitled for compensation under the Workmen Compensation Act as prayed? OPP

2. Whether the application is maintainable? OPR.

3. Whether the application is not instituted/constituted and verified in accordance with the law? OPR.

4. Whether the application bad for mis-joinder and non-joinder of necessary parties? OPR.

5. Whether the no cause of action has accrued in favour of the applicant? OPR.

6. Whether the application is barred by limitation? OPR.

7. Relief.

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5. The parties were called upon to produce the evidence and the applicant examined Gurdev Singh (PW-1), C. Sunil Kumar (PW-2), and Dr. Piyush Kapila (PW-3). The respondent no.2 examined himself (RW-1) and Shyam Singh (RW-2).

6. The learned Commissioner held that claimant no. 3 did not claim that he was dependent upon the deceased. He was major and did not fall within the definition of dependent.

Claimant no. 4, was married and could not be called to be a dependent upon the deceased. Claimant no. 1 had died during the pendency of the proceedings and her name was deleted. Hence, only claimant no. 2 was entitled to seek compensation. It was duly proved on record that Jagat Ram had died in Hotel Satkar. The version of the claimant that he was engaged in carrying out the repairs was probable. Even if the version of the respondents is accepted that he had visited the hotel to negotiate the repair, the same will fall within the definition of arising out of the course of employment, the claimant No.2, namely, Smt. Sita Devi was held entitled to a compensation of ₹2,34,820/- alongwith interest ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 5 @12% per annum. Issue no. 1 was partly answered in the affirmative, issue no. 2 was answered in the affirmative, issues no.

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3 to 6 were answered in the negative, and the application was allowed.

7. Being aggrieved from the order passed by the learned Commissioner, the present appeal has been filed, asserting that the learned Commissioner erred in deciding the issue against appellants/respondents. There was no relationship of employer and employee between the respondents and Jagat Ram. The petition was not maintainable. Learned Commissioner erred in relying upon the evidence of the claimants regarding the employment. No contract of service was proved. It was not established that Jagat Ram had carried the work of Carpenter in the hotel. Kavi Khanna was not the owner of the hotel and there was no question of employing Jagat Ram as Carpenter. Kavi Khanna was only assisting staff for the management. The order could not have been passed against Kavi Khanna. Learned Commissioner, misread the evidence and erred in holding that Jagat Ram died during the course of employment. The claimants had no cause of action to file and maintain the present petition.

Jagat Ram came to the hotel to inspect the windows and doors on which bolts were to be affixed. Shyam Singh, one of the .

employees of the hotel, took Jagat Ram for making inspection and reported what article/material was required for affixing such bolts. No work as a Carpenter was assigned to Jagat Ram. When Jagat Ram did not return, the employee went to check on him and found that Jagat Ram was lying on the floor. He could not be called an employee engaged by the respondent. The accident had also not occurred during employment. No contract of service or employment was established. No wages were proved. The compensation was wrongly assessed and the amount is exaggerated. Therefore, it was prayed that the present appeal be allowed and the order passed by the learned Commissioner be set aside.

8. The appeal was admitted on 07.08.2014, on the following substantial questions of law:-

1. Whether there is no contract of service proved between appellants and Shri Jagat Ram deceased, is not the impugned Award passed by learned Commissioner without jurisdiction as it was wrongly presumed that Sh. Jagat Ram was ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 7 employed in Hotel Satkar for doing work as a carpenter?

2. Whether the findings of learned Commissioner .

that Shri Jagat Ram died during the course of employment are erroneous, illegal and perverse as the engagement of Shri Jagat Ram as carpenter to work in the Hotel was not at all proved?

3. Whether the learned Commissioner gravelly erred in law and exceeded its jurisdiction in wrongly presuming the income of the deceased and applying incorrect factor for calculating the compensation which is highly inflated?

9. I have heard Mr. Neeraj Gupta, learned Senior Counsel assisted by Ms. Rinki Kashmiri, Advocate for the appellants/respondents and Mr. Anuj Gupta, learned counsel for the respondents/applicants/Claimants.

10. Mr. Neeraj Gupta, learned Senior Counsel for the appellants/respondents submitted that the relationship of employer and employee was not proved. Jagat Ram was merely called to give an estimate of the repairs and was not engaged in the work. Learned Commissioner had passed the order on surmises and conjectures. The order is not sustainable. Hence, he ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 8 prayed that the appeal be allowed and the order passed by the learned Commissioner be set aside.

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11. Mr. Anuj Gupta, learned Counsel for the respondent/applicants/claimants supported the order passed by the learned Commissioner, and submitted that no inference is required with the same.

Substantial questions of law no. 1 and 2.

12. These substantial questions of law are intricately connected and are being taken up together.

13. The claimants issued a notice on 15.10.2003 (Ext.P-5) to Nirmal and Kavi Khanna seeking ₹2,48,000/- as compensation.

The respondents issued a reply (Ext.P-6) on 03.11.2003.

It contains the earliest version of the incident as per the respondents. It reads that Jagat Ram visited Hotel Satkar on 07.07.2002 to see and examine the work, which was assigned to him as per the conversation between the Manager of Hotel Satkar and late Sh. Jagat Ram. He was called to the premises for the repair of windows, doors and bolts and in pursuance of the same at about 2:00 p.m. Jagat Ram, reached the hotel Satkar. Kavi Khanna asked his employee Shyam Singh to get the work ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 9 inspected so that the material for the repair of the doors, and windows could be purchased accordingly. Shyam Singh took Jagat .

Ram to the doors and windows of the Hotel from the reception and they saw the doors and windows. When they reached the veranda of the fourth storey, Shyam Singh said that water seeped from the window adjacent to the fourth storey. Shyam Singh asked Jagat Ram to do the needful so that the seepage did not enter the room.

Jagat Ram asked Shyam Singh to bring the measuring tape from the bag, which was kept by him in the reception and he started measuring the length and width of the window, which was asked to be repaired. When Shyam Singh returned with the measuring tape. Jagat Ram was found lying on the floor on the Veranda of the 4th storey and blood was oozing from his head.

14. This reply contains many valuable admissions. Reply admits that Jagat Ram visited the hotel pursuant to the talk between the Manager and Jagat Ram. It admits that Shyam Singh took Jagat Ram to the doors and the windows at the instance of Kavi Khanna. It admits that Shyam Singh told Jagat Ram that water seeped from the window and he asked Jagat Ram to do the ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 10 needful so that seepage did not enter the room. This admission proves that Shyam Singh had asked Jagat Ram to repair the .

window to prevent the seepage of the water did not enter the room. Jagat Ram started the process and demanded the measuring tape for measuring the length and width of the window, which was to be repaired. The relationship of employer/employee came into existence, the moment Shyam Singh told that the window was to be repaired and seepage was to be stopped and Jagat Ram started executing the work. It cannot be said that there was no relationship of employer and employee. The respondent denied this version in the reply filed on behalf of respondent no.2. It was denied that the services were availed. It was asserted that the services were never hired. It was asserted that Jagat Ram had never worked under the respondent and there was no question of the employment. Significantly, Shyam Singh (RW-2) stated that Jagat Ram visited the hotel to check and carry out the work of repair of the windows and the doors. He called the owner of the hotel, who advised him to show the work to Jagat Ram. He (Shyam Singh) showed the work to Jagat Pal and when they reached on 4th floor, he (Shyam Singh ) told Jagat Ram that water was seeping from one window, which was to be repaired. Jagat ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 11 Ram had kept his instruments at the reception and he asked Shyam Singh to bring the measuring tape. When he returned, he .

saw Shyam Singh lying on the floor.

15. The statement of Shyam Singh also establishes that he had taken Jagat Ram inside the hotel as per the directions of the owner. His statement also establishes that Jagat Ram was to execute the work and Shyam Singh had asked Jagat Ram to repair the window from where the seepage was taking place. Hence, the testimony of this witness also establishes that he had asked Jagat Ram to repair the window at the instance of the owner and Jagat Ram commenced the repair as per his directions.

16. Kavi Khanna (RW-2) stated that the services of the Jagat Ram were never hired. Jagat Ram never came to the hotel to carry out any work. No accident or fall of any Carpenter had taken place inside the hotel.

17. The testimony of this witness is contrary to the reply sent to the notice. It is contrary to the statement of Shyam Singh that Jagat Ram was shown doors and windows at the instance of the owners. It is contrary to the admitted facts that Jagat Ram had ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 12 died in the hotel. Therefore, the learned Commissioner had rightly discarded the testimony of this witness.

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18. The term 'workman' has been defined in Section 2(n) of the Workmen's Compensation Act, 1923 as:-

2(n) "Workman means any person who is -

(i) a railway servant as defined in 20[clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989)], not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (i-a) (a) a master, seaman or other member of the crew of a ship,

(b) a captain or other member of the crew of an aircraft,

(c) a person recruited as a driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,

(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or]

(ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of [the Armed Forces of the Union] [* * *] and any reference to a workman who ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 13 has been injured shall, where the workman is dead, include a reference to his dependants or any of them.

19. Schedule-II, provides lists of persons who are subject to the .

provision of Section 2(i)(n) and are included in the definition of Workman. The entry (viii) reads as under:-

(viii) employed in the construction, maintenance, repair or demolition of:

a. any building which is designed to be or is or has been more than one storey in height above the ground or twelve feet or more from the ground level to the apex of the roof; or.

b. any dam or embankment which is twelve feet or more in height from its lowest to its highest point; or c. any road, bridge, tunnel or canal; or d. any wharf, quay, sea wall or other marine work including any moorings of ships;

20. It is apparent from the combined reading of these two provisions that when a person has been employed for repair of any building having more than one storey, he will fall within the definition of Workman. In the present case, Jagat Ram was employed, to repair the window on the fourth storey, which was causing seepage; therefore, he will be covered within the definition of the workman, provided under the Act.

21. Thus, it was duly established on record that Jagat Ram had died during employment after he was asked to repair the ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 14 widow, which was causing seepage at the instance of the owner and he was covered within the definition of the Workman. The .

learned Commissioner had rightly held that the accident had occurred during employment. The question of whether a person was employed or not is a pure question of fact. It was laid down by the Hon'ble Supreme Court of India in Golla Rajanna v. Divl.

Manager, (2017) 1 SCC 45: (2017) 1 SCC (Civ) 320: 2016 SCC OnLine SC 1315 that an appeal lies before the High Court only on a question of law. The Commissioner is the final Court on facts and the High Court cannot re-appreciate the evidence. It was observed:

"10. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. 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 reappreciate the evidence and recorded its own findings on the 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. This judgment was followed in Fulmati Dhramdev Yadav v. New India Assurance Co. Ltd., 2023 SCC OnLine SC 1105:2023 INSC 790 and it was held:

"17. The Act is unequivocal in stating that an appeal from an order of the Commissioner can be entertained only if there exists a substantial question of law to be considered. It has been observed by this Court that the phrase .

"substantial question of law" within this Act shall be understood by its general meaning, Om Prakash Batish v. Ranjit (2008) 12 SCC 212 (2 judge-bench)]. When considering the general meaning of this phrase, naturally, the reference is to the Code of Civil Procedure (CPC). The rule therein is that framing of a substantial question of law is of cardinal importance.

18. A bare perusal of the impugned judgment shows that the Court did not frame any such question.

19. The wording of the Act indicates that the existence of such a question is a prerequisite to the appeal being entertained.

20. Illustratively, in North-East Karnataka Road Transport Corporation v. Sujatha, (2019) 11 SCC 514, (Two-Judge Bench) amongst numerous other cases, this Court has observed:

"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 be 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."

21. The other ground making the order under challenge, amenable to interference when the scope of jurisdiction is circumscribed by it being exercised only in cases of "substantial question of law", is perversity in the findings. Here, the impugned judgement does not, even remotely, reflect the observation that the findings arrived at by the Commissioner are perverse. The difference, between the two judgements, i.e., the order of the Commissioner and the judgment in the First Appeal, was on the point of the ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 16 employer-employee relationship having been established. The Commissioner held such a relationship to have been established however, the appeal Court observed that "claimants have clearly failed to prove this aspect"

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22. It may here only be noted that the Commissioner had not returned any findings in respect of the validity of the non-availability of the license of the deceased nor was it one of the questions framed by the Commissioner for consideration. In such a situation, while exercising powers within the limited purview allowed by section 30 of the Act, the learned Court below erred in making observations and giving a holding in that regard.

23. It has also been observed by this Court that the Commissioner is the last authority on facts involved in a case. In Golla Rajamma &Ors. v. Divisional Manager &Anr., (2017) 1 SCC 45, (2-Judge Bench) it was observed that "under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. 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 reappreciate the evidence and recorded its own findings on the 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."

24. Keeping in view the said principles, the impugned judgement, ex-facie, appears to be in contravention thereto.

25. On merits too, we find that the conclusions arrived at by the Commissioner, were undoubtedly "a possible view", therefore extinguishing the possibility of perversity in findings.

26. A Bench of two learned Judges observed in C. Manjamma v. New India Assurance Co. Ltd., (2022) 6 SCC 206 :

"15. That being the position, the view taken by the Commissioner had been a possible view of the matter in the given set of facts and circumstances; and there was no reason for the High Court to interfere with the .

same, particularly when the case did not involve any substantial question of law within the meaning of Section 30 of Employees Compensation Act, 1933."

23. Therefore, this Court cannot interfere with the findings of fact recorded by the learned Commissioner, when it was based upon the evidence and was a possible view on the material placed before him. Hence, the submission that there was no relationship of employer and employee between the respondents and Jagat Ram is not acceptable and the learned Commissioner had rightly held that the accident had occurred during employment. Hence, these substantial questions of laws are answered accordingly.

Substantial question No.3.

24. The learned Commissioner held that the monthly wages have to be taken as ₹4000/- as per explanation (II) of Sub Section 1 of Section 4 of the Workmen Compensation Act, 1923 and considered the income of Jagat Ram as ₹4,000/- per month only. The claimant Gurdev stated that Jagat Ram was earning ::: Downloaded on - 07/11/2023 20:35:11 :::CIS 18 ₹15,000/- per month and was engaged by the respondents on ₹250/- per day.

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25. Kavi Khanna (RW-1), admitted in his cross-

examination that the wages of Carpenter were ₹300/- on the date of deposition. However, he did not know the wages on the date of the accident. Shyam Singh (RW-2) stated that he did not know that the wages were₹350/- per day. Once, it was admitted that wages were ₹300/- per month in the year 2012, the salary of ₹4,000/- per month cannot be said to be unreasonable. Thus, it cannot be said that the learned Commissioner had erred in calculating the compensation.

Final order:

26. In view of the above, the present appeal fails and the same is dismissed.The record of the case be remitted back to the learned Court below. Pending miscellaneous applications, if any, also stand disposed of.

(Rakesh Kainthla) Judge 06th November, 2023 (Ravinder) ::: Downloaded on - 07/11/2023 20:35:11 :::CIS