New India Assurance Co.Ltd. vs Smt. Leela Devi And Others
2022 Latest Caselaw 3238 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 

 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 10 of 1993
 

 
Appellant :- New India Assurance Co.Ltd.
 
Respondent :- Smt. Leela Devi And Others
 
Counsel for Appellant :- Rajesh Ji Verma,Kamal Dev Rai,Shri Prakash Lal
 
Counsel for Respondent :- Smt. Aradhana Chauhan,A.K.Singh,Ajeet Kumar Singh
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. Heard learned counsel for the appellant. None present for the respondents.

2. This is one more classic case where insurance company has challenged meagre amount granted to heir of deceased employee a truck driver for accident which occurred on 13.04.1990. Accident having taken place and causing death of employee and compensation awarded is not in dispute.

3. The appellant has challenged the order dated 07.10.1992 of the Workmans Compensation Commissioner, Etwah under Workman Compensation Act, 1923 (referred as ''Act') whereby compensation of Rs.69,984.60/- has been awarded to claimant/respondent for death of her husband who was a driver and employed by respondent no. 7 and 8 herein passed away due to employment injuries.

4. The Insurance Co. has contended that the deceased was not in employment of the appellant and therefore the appellant company could not have been made liable for payment of penalty, as the provisions of Act does not saddle them with liability. It is further submitted that no issue were framed by the Commissioner before deciding the matter and the owner did not raise any demand

5. The submission of learned counsel for Insurance Company that no issues were framed is not accepted as about 6 issues have been framed and have been decided in seriation by Commissioner, the first submission of the appellant fails. As far as it relates to payment of penalty is concerned, judgment of the Apex Court titled as Oriental Insurance Co. Ltd. Vs. Siby George and others, 2012 (4) T.A.C. 4 (S.C.) will not permit this Court to take a different view then that taken by the Commissioner. There need not be any demand, however, the owner in reply before the Commissioner has taken stand that they had immediately intimated the insurance company about accidental death of its employee thus this aspect falls in realm of disputed question of fact and not law, the matter has been prolonged by the Insurance Company a similar situation has been lamented by the apex Court recently in Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC). The finding of fact is that the deceased was an employee who had sustained employment injury and died.

6. I am supported in my view by the decision of the Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 wherein it has been held that the Court has held as under:

"15. Such appeal is then heard on the question of admission with a view to find out as to whether it involves any substantial question of law or not. Whether the appeal involves a substantial question of law or not depends upon the facts of each case and needs an examination by the High Court. If the substantial question of law arises, the High Court would admit the appeal for final hearing on merit else would dismiss in limini with reasons that it does not involve any substantial question/s of law.

16. Now coming to the facts of this case, we find that the appeal before the High Court did not involve any substantial question of law on the material questions set out above. In other words, in our view, the Commissioner decided all the material questions arising in the case properly on the basis of evidence adduced by the parties and rightly determined the compensation payable to the respondent. It was, therefore, rightly affirmed by the High Court on facts.

17. In this view of the matter, the findings being concurrent findings of fact of the two courts below are binding on this Court. Even otherwise, we find no good ground to call for any interference on any of the factual findings. None of the factual findings are found to be either perverse or arbitrary or based on no evidence or against any provision of law. We accordingly uphold these findings."

7. This Court, recently in F.A.F.O. 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 has followed the decision in Golla Rajana (Supra) and has held as follows:

"The grounds urged before this Court are in the realm of finding of facts and not a question of law. As far as question of law is concerned, the aforesaid judgment in Golla Rajanna Etc. Etc. Versus Divisional Manager and another (supra) in paragraph 8 holds as follows "the Workman 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."

8. In Mackinnon Machenzie v. Ibrahim Mahmmed Issak, (1969) 2 SCC 607, Regional Director, E.S.I. Corporation v. Francis De Costa, (1996) 6 SCC 1, Malikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd., (2009) 13 SCC 405, Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali, (2007) 11 SCC 668, Laxmanrao v. Maharashtra State Electricity Board, 2015 ACJ 2509 and Mewar Textile Mills v. Kushali Bai, (1960) II LLJ 369 similar view is taken.

9. Going by the factual scenario, the deceased was in employment when the incident occurred. The award dated 7th October, 1992 goes on the premise that death occurred during course of employment. While going through the record, it is very clear that this appeal will have to fail and, accordingly, it is held that the deceased died due to employment injuries.

10. The person was covered by insurance which fact is proved, he need not be employee of insurance company. The law is well settled that where employer intimates the amount must be disbursed within one month of incident. Just becauise separate issue is not framed qua payment of interest and penalty will not vitiate the entire order as issue no. 6 relates to what compensation is payable. The Commissioner has dealt exclusively and given cogent reasons for grant of interest and penalty as per Section 4A of the Act which reads as follows:

"[4A. Compensation to be paid when due and penalty for default.--(1) Compensation under section 4 shall be paid as soon as it falls due.

(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the1[employee], as the case may be, without prejudice to the right of the 1[employee] to make any further claim.

3[(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall--

(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent. per annum or at such higher, rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government by notification in the Official Gazette, on the amount due; and

(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent. of such amount by way of penalty:"

Thus, the right of claimant can not defeated and this Court concurs with the same.

11. In view of the above, the appeal fails and is dismissed. The so called questions of law framed by the Insurance Company are answered against it. In fact the substantial questions of law raised are questions of fact.

12. Interim relief, if any, shall stand vacated forthwith.

13. This court records the absence of learned counsels for the respondents. The penalty if not deposited be deposited forthwith.

14. This Court is thankful to learned counsel for the appellant for getting this very old matter disposed off.

15. The record be transmitted to the Workmen Commissioner.

16. The amount lying in the fixed deposits will be disbursed to the claimants immediately as more than 30 years have elapsed since the appeal was preferred. As none represent respondent, no litigation expenses are awarded.

Order Date :- 18.05.2022/PS