G.M. Dugdh Sangh Allahabad vs Suresh Chandra Mishra
2023 Latest Caselaw 16901 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:118875
 
[AFR]
 
Reserved On : 26.4.2023
 
Court No. - 44
 
Case :- FIRST APPEAL FROM ORDER No. - 3250 of 2004
 

 
Appellant :- G.M. Dugdh Sangh Allahabad
 
Respondent :- Suresh Chandra Mishra
 
Counsel for Appellant :- Ganesh Datt Mishra,C.D.Misra
 
Counsel for Respondent :- Sushil Kumar Srivastava,Shyam Narain,Sudhanshu Narain
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. Heard Sri Ganesh Datt Mishra, learned counsel for the appellant and Sri S.D. Ojha, learned counsel for the claimant.

2. This First Appeal From Order has been filed under section 30 of Workmen's Compensation Act, 1923 ( hereinafter referred to 'Act, 1923') by appellant- G.M. Dugdh Sangh Allahabad, being aggrieved by order dated 28.9.2004 passed by the Workmen's Compensation Commissioner/Assistant Labour Commissioner, Allahabad in WC Case No.46 of 2001 whereby the learned Commissioner has awarded compensation of Rs.1,38,340/- with 9% rate of interest.

3. The facts of the present case are that it has been culled out from the record that the claimants who was employed by appellant met with an accident. On 19.8.199 when the claimant was on job at that point of time he fell down from the staircase of the platform. The claimant / respondent sustained multiple injures on his left lower limb and on his spinal cord was also damaged. The respondent company rushed the claimant to the hospital where the claimant was admitted and continued to be in hospital from 19.8.1999 to 24.8.1999. For a period one month the claimants was advised bed rest. The claimant was 38 years of age and his wages were about Rs.2000/- per month. The doctors opined that there was 60% disability of body. The claimants spent about Rs.15,000/- for medical expenses and claimed Rs.1,15,000/- as loss of wages. On notices being issued the appellant / owner answered the claim application contending that the employee was injured not in the premises but at a tea stall which is located near the factory and, therefore, the claimant was not entitled for any compensation. The claimant examined himself as against this the appellant examined about five witnesses. The appellant contended before the commissioner that in the year 1997 the claimant had sustained injures due to vehicle accident, and the medical certificate produced related to the injures of that time. The claimant in his rejoinder refuted the charge that he was not injured in the premises of appellant. The commissioner did not accept the contention that the injures were caused beyond the factory premises holding that the injury was caused in the factory premises, and accepted the claim petition granting compensation by holding against appellant, as the officer of the factory took him to hospital. The claimant was taken to one Preeti Nursing Home,thereafter taken to Jeevan Jyoti Hospital. The officers who came to depose did not know at what time the accident occurred but out of humanity took the claimant to the hospital. This was the testimony of one of the witness Parth Sarthi for employer / appellant as per medical certificate. The calculation was based on the 60% disability with 9% rate of interest. The Commissioner granted compensation as per schedule.

4. While admitting this appeal and issuing notice, the Court on 1.12.2004 passed the following order :-

"Admit.

Issue notice to unserved respondents only by R.P.A.D. Returnable at an early date.

The substantial question of law, apart from other legal grounds, arising in the appeal is :

(i) Whether the Workmen's Compensation Commissioner committed apparent error of law in awarding the compensation without there being any loss of earning and without probing the actual loss of earning capacity by the claimant / opposite party as required within the meaning of Section -4 (1) (c) (ii) of the Workmen's Compensation Act, 1923 ?

Even though Court was of the opinion that this matter be decided finally on the issue raised by the appellant, learned counsel for the claimant - respondent prays for and is allowed four weeks time to file counter affidavit. Rejoinder affidavit, if any, may be filed within four weeks thereafter.

Stay application shall be listed immediately after expiry of aforesaid period.

Until further orders, the operation of the impugned judgment and award dated 28.9.2004 passed by Workmen's Compensation Commissioner, Allahabad/ Assistant Labour Commissioner, Allahabad in W.C. Case No.46 of 2001 ( Suresh Chandra Mishra Versus General Manager, M/s Allahabad Dugh Utpadak Sahkari Sangh Limited, Allahabad ) shall remain stayed. The amount deposited by the Employer, in pursuance to the aforesaid judgment and award dated 28.9.2004, shall not be disbursed and shall be invested by the concerned authority in a Fixed Deposit Account - carrying maximum interest for minimum period and both the Principal & the interest of it may be reinvested on same terms as above and it shall be subject to any order passed subsequently by this Court."

5. This Court framed only one question of law based on facts and legislation. The question of law, however, as questions of law are formulated by the appellant which are seven in number they may not be decided, but the arguments are advanced by Shri Ganesh Datt Mishra-Advocate for appellant on all the questions. The said questions are reproduced herein below : -

"(i). Whether the finding recorded by the Workmen's Compensation Commissioner vitiated by not considering the oral evidences of Devendra Swaroop and U.N. Singh and documentary evidence on record and also by not mentioning any reason for disbelieving the oral evidence of K.M. Pandey Production Manager, Jagpal Singh Factory Manager and Parth Sarathi Computer Accountant ?

(ii) Whether the Workmen's Compensation Commissioner committed error of law in not considering the case of defendant / appellant and oral and documentary evidences that medical certificate is result of accident of the claimant / opposite party in November, 1997 ?

(iii) Whether the injury was caused in November, 1997 and on 19.8.1999 by an accident which was not arising out of in the course of his employment ?

(iv) Whether the Workmen's Compensation Commissioner committed apparent error of law in awarding the compensation without there being any loss of earning and without probing the actual loss of earning capacity by the claimant / opposite party as required within the meaning of Section -4 (1) (c) (ii) of the Workmen's Compensation Act, 1923 ?

(v) Whether the Workmen's Compensation Commissioner committed apparent error of law and in not considering the points and arguments raised and rulling relied upon in the written argument submitted before the Workmen's Compensation Commissioner and the impugned order / direction is based on non application of mind ?

(vi) Whether the Workmen's Compensation Commissioner committed apparent error of law I not drawing adverse inference against the workman / opp. Party regarding accident in November, 1997 ?

(vii) Whether an oral evidence adduced by the Workman / opp. Party to the effect that he was injured in November, 1997 by buffalo, is without any pleading there of and the Workmen's Compensation Commissioner committed error of law and jurisdiction in relying upon the same ?

6. Learned counsel for the appellant has submitted that finding recorded by the Workmen's Compensation Commissioner that the claimant / opposite party was injured on 29.8.1999 in the factory premises and arising out of employment, is perverse and based on non consideration of the oral and documentary evidence submitted by the owner/appellant. Learned counsel for the appellant has further submitted that the Workmen's Compensation Commissioner committed an error apparent on the face of record in not assigning any reason for disbelieving the testimony of K.M. Pandey Production Manager, Jagpal Singh Factory Manager and Parth Sarathi Computer Accountant and also the Workmen's Compensation Commissioner failed to consider the oral evidence of Devendra Swaroop then General Manager and Mr. U.N. Singh Manager ( Admin) and documentary evidence Exh. E-1 to Exhibit E-19 on the records.

7. Learned counsel for the appellant has submitted that there is no loss of earning. The claimant continued to be on the said post and not considering this aspect and this non consideration of the contention of the appellant itself has made the order to be vulnerable as perversity has crept in.

8. As against this, learned counsel for respondent submits that the disability due to the accidental fall is proved beyond reasonable doubt and under the provisions of Section 4(1)(C) of the Workmen's Compensation Act, 1923 it is an employment injure which would entitle the claimant to claim what is known as compensation.

9. The provisions of Section 4 (1) (C) of the Workmen's Compensation Act, 1923 which reads as follows : -

(c) Where parmanent partial (i) in the case of an injury disablement results from specified in Part II of Schedule the injury I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and

(ii) in the case of an injury not pecified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is propor- tionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the inj- ury; Explanation I.-- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; Explanation II.-- In assessing the loss of earning capacity for the purposes of sub- clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;

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 the finding regarding where the injury occurred, and whether it occurred or not, cannot be gone into as those are finding of fact. Hence, the said ground fails and is answered against the appellant. As far as the question regarding disability is concerned, this is a question of fact and in view of the decisions of the Apex Court, this Court cannot go into the said issue, unless it is proved that the finding of the learned Commissioner is absolutely perverse. In this case, the Court below has considered medical evidence which shows there was disability caused. Thus, grant of compensation of Rs. 1,38,340/- as per the quotient cannot be said to be bad. Rather the rate of interest awarded by the Commissioner is below statutory rate of interest.

13. In Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC)  & Mayan vs. Mustafa and another, 2022 ACJ 524 also, the Apex Court has held that under Section 30 of Workmen Compensation Act, the High Court cannot enter into the arena of facts unless they are proved to be perverse and the Court cannot interfere unless there is a question of law involved. The decision in Salim vs. New India Assurance. Co. Ltd. and another, 2022 ACJ 526 also will not permit this Court to interfere with the well reasoned judgment of learned Commissioner. 

14. All other grounds mentioned in the memo of appeal are in the realm of question of facts and the finding of the Commissioner on these cannot be interfered as this Court has admitted appeal on only the question of law, hence, finding are not disturbed by this Court as this Court is fortified in its view by the decision of the Apex Court passed in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018, Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) & Mayan vs. Mustafa and another, 2022 ACJ 524 wherein the Apex Court has held that under Section 30 of Workmen Compensation Act, 1923 the High Court cannot enter into the arena of findings of fact unless they are proved to be perverse and unless there is a question of law involved.

14. All other grounds mentioned in the memo of appeal are in the realm of questions of fact and the finding of the Commissioner on these cannot be interfered as this Court has admitted appeal on only the question of law, hence, findings are not disturbed by this Court as this Court is fortified in its view by the decision of the Apex Court passed in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018, Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) & Mayan vs. Mustafa and another, 2022 ACJ 524 wherein the Apex Court has held that under Section 30 of Workmen Compensation Act, 1923 the High Court cannot enter into the arena of finding of facts unless they are proved to be perverse and unless there is a question of law involved.

15. In this there is a perversity which has crept in the order of the Commissioner as the argument of the appellant that the claimant has not proved loss of income and that he continues to be in job and that he was been working in the diary and his salary has increased on 16.4.2000, therefore there is no loss of income. The Commissioner could not have taken recourse to only one fact that the accident occurred in the premises The next limb of entitlement has not been considered at all except the fact that he was admitted in the hospital.

16. The appeal will have to be allowed. The judgments cited by the counsel for the appellant in Sri Chanappa Nagappa Muchalagoda Versus Divisional Manager, New India Insurance Company Limited, 2019(0) Supreme( SC) 1347 and Shakuntala Chandrakant Shreshti Versus Prabhakar Maurti Garvali and another, 2006 (0) Supreme(SC) 1105 will enure for the benefit of the appellant and the judgment of this High Court in Mohd. Yaqub Vs. UPSRTC through Regional Manager, Moradabad, 2003 (97) FLR 224

17. While entertaining this appeal and during the pendency of this litigation the original claimant has passed away. The amount has already been deposited without interest .The claimants would be at least entitled as per Section 4(2)(A) of the Act where the employee has to be granted actual medical expenses and pain shock to the claimant. Hence, the amount of Rs.35000/- with 12% interest from filing of claim application till disbursement as amount is in fixed deposit as per order of this Court, be paid and disbursed to the legal heirs of the deceased- employee. The submission that because of this injures the claimant was not granted promotion is not answered by the counsel for the appellant and now that the original claimant has passed away it would not be fruitful to remand the matter to the tribunal for considering this aspect and therefore while returning the amount kept in fixed deposit, Rs.35000/ with 12% interest will have to be granted as per the statute and that the respondent will be entitled to costs of Rs.10,000/-.

18. The appeal is partly allowed. Interim relief, if any, is modified as above. The Registry will forward this order to the Workmen Compensation Commissioner who shall immediately summon the claimants and disburse the amount kept in fixed deposit with interest accrued on the said amount till date within 30 days calculating the same from the date of receipt of this order.

19. This Court is thankful to both the counsels for ably assisting this Court.

Order Date :-29.5.2023/Mukesh