Ahmad Ahsan And Another vs Sri Suresh
2023 Latest Caselaw 22139 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:165198
 
A.F.R.
 
Reserved on 10.7.2023
 
Delivered on 17.8.2023
 
Court No. - 44
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1099 of 2001
 

 
Appellant :- Ahmad Ahsan And Another
 
Respondent :- Sri Suresh
 
Counsel for Appellant :- Syed Farman Ahmad Naqvi(Senior Adv.),Lal Mani Singh
 
Counsel for Respondent :- Bijai Prakash Tiwari
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. Heard Mr. Lal Mani Singh, learned counsel for the appellants and Mr. Bijai Prakash Tiwari, learned counsel for the respondent.

2. By way of this appeal, the appellants have challenged the judgment and award dated 21.6.2001 passed by Workmen's Compensation Commissioner/ Additional District Magistrate (City) Kanpur Nagar in Case No. 4 of 1996.

3. This Court while admitting the appeal did not frame any substantial questions of law and, therefore, questions of law framed by the appellants are required to be decided as per the said questions of law framed herein below:-

(i) Whether the bar under Section 53 and 61 of Employees State Insurance Act, 1948 is applicable upon the impugned proceedings because the opposite party is getting pension and had already received compensation as per the Rules?

(ii) Whether in view of Section 53 and 51 of the Employees State Insurance Act, 1948 impugned proceedings were maintainable or the same are barred under Section 53 and 61 of the Act?

(iii) Whether Section 53 of the Employees State Insurance Act, 1948 itself entitles an employee who has suffered alleged employment injury from receiving or recovering the compensation and damages under the Workmen's Compensation Act or any other law for the time being imposed or otherwise?

4. The brief facts of the case culled out from the record are that the claimants had preferred a claim petition under the provisions of Employees' Compensation Act 1923 (hereinafter referred to as Act, 1923) against the appellants herein. The claimant was a Class-IV employee. The appellants are the owner of the Tenari New Light Teners. On 19.6.1995 when the claimant was on duty, at that time, at about 1:25 PM his left hand (upper limb) came in the machine and his index finger alongwith thumb and other parts got crushed and they had to be amputed, which resulted in total partial disablement to the claimant. The claimant was rushed to the hospital and from 19.6.1995 till 16.8.1995 he was under treatment (i.e. about two months).

5. The respondents refused to engage claimant into service after the accident, and therefore, the notice was given to the appellants to pay compensation despite the notice, no amount was paid rather the claimant was summoned and was humiliated by appellants. The notice was given to the appellants herein, who filed its reply on 30.1.1999 and denied the entire incident and submitted that claimant was not employed by them as a machine man and that the accident if at all had occurred was because of the negligence of claimant. It is stated that the claimant did not report for duty his name was deleted from the list. Even before the said reply, Mohd. Azmal was made a party who also filed his reply of denial and denied the employment. The Workmen Commissioner framed several issues. The stand of the appellants was that the claimant was removed after following the procedure.

6. The issue no.1 has rightly been decided by the Commissioner and it is a question of fact. As far as issue no.2 is concerned, as to whether the appellants had paid any amount to the claimant or not just because the ESI has made certain payments would it permit the appellants herein not to pay any amount. While deciding the issue for compensation, which is a question of fact. The questions is whether this Court can entertain this appeal under Section 30 of the Act on the questions of facts.

7. Learned counsel for the appellants has contended that Employees State Insurance Act 1948 has granted him pension. The judgment according to the counsel for appellants is silent and has not discussed this aspect. Learned counsel for the appellants has relied on the judgment of Hon'ble Apex Court in the case of Western India Plywood Ltd. Vs. Shri P. Ashokan dated 19.9.1997 and contended that the said judgment is relied on so as to contend that once the employee has received disablement benefit under the Employees State Insurance Act, 1948 he would not be entitled to any amount under the Emplioyees' Compensation Act 1923, which is barred by Section 53 of Employees State Insurance Act. It is contended that the provisions of law is very clear that the claimant could not have made the claim.

8. However, looking to the injuries and the long period, which has passed by claimant and that the claimant has lost his fingers (upper limbs). The amount awarded being meagre amount cannot be interfered with and it can be considered to be medical expenses. The amount deposited would enure for the benefit of the injured who has lost his fingers, hand and job as well as crushed other three fingers.

9. The written statement nowhere mentioned the fact that the claimant had received any amount under the Workmen's Compensation Ac, 1948.

10. At the outset, it is relevant to discuss the scope of this Court to entertain appeal against the award of Workmen's Compensation Commissioner. The Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 has held as under :

"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident 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 dependents of the deceased 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.

10. 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 findings of fact."

11. The Apex Court further went on to hold 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."

12. As far as present appeal is concerned, the so called substantial questions of law framed are the questions of facts and the findings of the Commissioner on the said issues are not perverse. As far as interest is concerned, the same is answered against the Insurance Company in view of the decision of the Apex Court in North East Karnataka Road Transport Corporation Case (Supra). In Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) also it has been held that under Section 30, the High Court cannot enter into the arena of facts unless they are proved to be perverse.

13. In view of the special facts and circumstances, this appeal is dismissed. The remaining amount if yet not deposited, be deposited and disbursed to the claimants. The so called questions of law framed by the appellants are answered against it. In fact the substantial questions of law raised are the questions of fact.

14. Interim relief, if any, shall stand vacated forthwith. The amount be disbursed to the claimant forthwith.

15. The record be sent back to the court below.

(Dr. Kaushal Jayendra Thaker,J.)

Order Date :- 17.8.2023

P.S.Parihar