Pandurang Gunjal vs Shyamsingh B. Thakur And Anr.
2003 Latest Caselaw 740 Bom

JUDGMENT

S.B. Deshmukh, J.

1. This appeal was notified on the cause list on earlier occasion i.e., on 25.6.2003 The learned Advocate appearing for the appellant at that time was present. However, nobody was present on behalf of the respondents. Hearing of the appeal was adjourned to one week.

2. Heard learned Advocate appearing on behalf of the appellant. Today also none present for the respondents.

3. Brief facts leading to the filing of the application (Non-fatal) W.C.A. No. 5/1982 before the learned Commissioner for Workmen's Compensation can be summarized as under:

4. The applicant minor, who had filed said application through the natural guardian has contended in the said application that original opponent No. 1 Shri Pradeepkumar M. Autey had obtained licence from Nasik Road Deolali Municipal Committee to operate sugarcane juice business on a piece of land owned by the said Municipal Committee for the season 1981-82. The original applicant contended in the said application that the opponent No. 1 was operating the establishment in the name and style "Shri Gurudatta Raspan Gruha". The applicant has also stated that on 15.5.1982 at about 8.00 p.m. he was engaged by respondent No. 2 for extracting sugarcane juice and to serve the same to the customers as per his normal duties and at that time his four fingers of right hand except thumb were crushed. The applicant has also stated that he was rushed to the hospital of one doctor Dhadiwal by opponent No. 2, where he was operated upon and four fingers of his right hand except the thumb had to be amputated. The applicant was there in the said hospital viz., Dhadiwal Hospital, Panchawati, Nasik as inmate patient since 15.5.1982 till 26.5.1982. The applicant has claimed that he has suffered permanent partial disablement to the extent of 50% and has placed on record photostat xerox copy of Civil Surgeon's Certificate to that effect. The applicant ultimately claimed the compensation to the tune of Rs. 11,760/- in Accordance with the provisions of Workmen's Compensation Act, 1923 (hereinafter referred to us said Act, for short).

5. The original opponent No. 1 as well as the opponent No. 2 after entering their appearance have filed their written statements. The original opponent No. 1 in his written statement, in short, contended that the said, "Shri Gurudutta Raspan Gruha" is being run by opponent No, 2. It is further contended that, only the shed of the sugar cane juice centre was leased by the Nasik Road, Deolali Municipal Council to the opponent No. 1. The opponent No. 1 further stated in the written statement that as there is no relationship of employer and employee between opponent No. 1 and the original applicant he claimed the dismissal of the application.

6. The opponent No. 2 has also filed the written statement and denied the relationship between himself and the applicant as employer and employee. It is further contended by the opponent No. 2 that he is a permanent servant working in India Security Press, Nasik Road, Nasik since about 16 years prior to filing of the said written statement. The opponent No. 2 in his written statement has positively stated that the applicant was never employed by the said opponent No. 2 and, therefore, the application itself is not maintainable.

7. The learned Commissioner for Workmen's Compensation after considering the pleadings had framed issues at Exh. 23 and recorded the finding that the opponent Nos. 1 and 2 are jointly and severally liable to pay the amount of compensation worked out to the tune of Rs. 11,760/-. The opponent No. 2 has deposited the said amount with the learned Commissioner for Workmen's Compensation along with interest which comes to Rs. 14,350/- on 27.9.1984.

8. The original opponent No. 2, therefore, by filing this appeal has challenged the said judgment and order passed by the learned Commissioner in W.C. (Nonfatal) No. 5/1982.

9. The learned Advocate for the appellant, argued before me that the present appellant has no concern whatsoever in the business, the licence of which stands in the name of the respondent No. 1. The learned Advocate for the present appellant also contended that respondent No. 2 was not employed by the appellant and there is no relationship of employer and employee subsisting or in existence on the date of the alleged incident. The learned Advocate, therefore, submitted that the appellant was not concerned whatsoever and the learned Commissioner for Workmen's Compensation, Nasik has illegally declared that the applicant is entitled to claim Rs. 11,760/- by way of compensation from the opponent Nos. 1 and 2 jointly and severally.

10. I heard the learned Advocate for the appellant as stated above. Considering the controversy between the parties I frame the points for determination as below:

(1) What is the scope of Section 30 of the Workmen's Compensation Act?

(2) Whether the applicant proves relationship of employer and employee exists between the applicant and original opponents; on the date of Accident?

(3) Whether the applicant proves that he suffered an Accident which took place during the course of employment and out of the nature of the employment with opponent No. 2 as alleged?

(4) Whether the applicant proves that he sustained loss of 50% of his earning capacity as a result of the said Accident?

(5) Whether the learned Commissioner for Workmen's Compensation has committed an error in allowing the application filed by the applicant?

(6) What order

11. My findings on the points:

(1) Limited.

(2) Yes.

(3) Yes.

(4) Yes.

(5) No.

(6) Appeal dismissed.

REASONS

12. This appeal is filed by the appellant under Section 30 of the Workmen's Compensation Act, 1923. It would, therefore, be appropriate to consider the scheme of Section 30 of the said Act which is reproduced below:

Section 30. Appeals. (1) An appeal shall lie to the High Court from the following order of a Commissioner, namely:

(a) an order awarding as "compensation a lumpsum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lumpsum;

(aa) an order awarding interest or penalty under Section 4A;

(b) an order refusing to allow redemption of a half-monthly payment;

(c) an order providing for the distribution of compensation among the defendants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependent;

(d) an order allowing of disallowing any claim of the amount of an indemnity under the provisions of Sub-section (2) of Section 12; or

(e) an order refusing to register a memorandum of agreement or registering the same of providing for the registration of the same subject to conditions:

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:

Provided further that no appeal shall lie n any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties;

Provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant had deposited with him the amount payable under the order appealed against.

(2) The period of limitation for an appeal under this section shall be sixty days.

(3) The provisions of Section 5 of the Limitation Act, 1963 (36 of 1963) shall be applicable to appeals under this section.

The scheme of Section 30 has provided an appeal to the High Court, against orders passed by the Commissioner, enumerated in Sub-clauses (a) to (e) of Sub-section (1) of Section 30 of the said Act. This Section 30 is appended with 3 provisos and proviso No. 1 speaks about the nature of the appeal. The proviso No. 1 of sais Section 30 provides that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. This Court had considered the scope of Section 30 of the said Act in the matter of Oriental Insurance Co. Ltd. v. Srimati S. Sawant and Anr. . This Court has held that the scope of jurisdiction of the High Court in such first appeal is limited and it can be entertained only when substantial question of law is involved in the appeal. I am fully in agreement with the view taken by this Court, in this reported judgment of Oriental Insurance Co. Ltd.

However, "substantial question of law" is not defined anywhere under the provisions of Workmen's Compensation Act, 1923. The word "substantial" According to Black's law Dictionary, means that "of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing, real; not seeming or imaginary; not illusive; solid; true; veritable. Therefore, in my view while determining the limited scope under Section 30, substantial question of law with this meaning needs to be considered and naturally, therefore, the appeal filed under Section 30 shall not be treated and/or entertained as a first appeal, against the order passed by the Commissioner of Workmen's Compensation Act. I would like to say that what is substantial question of law may depend on facts of each case.

13. I have read the application as well as written statements filed by the original opponent Nos. 1 and 2.1 have also gone through the evidence led by the opponent Nos. 1 and 2. I have also considered the provisions laid down under Section 3 of the said Act. Section 3 of the said Act speaks about the employer's liability for compensation. The provisions laid down in the said section is reproduced hereinbelow:

3 Employer's liability for compensation:

(1) If personal injury is caused to a workman by Accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this chapter:

Provided that the employer shall not be so liable-

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding (three) days;

(b) in respect of any injury, no resulting in death or permanent total disablement caused by an Accident which is directly attributable to-

(i) the workman having been at the time thereof under the influence of drink or drugs; or

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman, or

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman.

14. If we look into Section 3 of Workmen's Compensation Act and more particularly proviso of the said Act as mentioned above, there are some grounds for exclusion of the liability of the employer. So far as grounds are concerned or circumstances are concerned, it is provided that if any injury which does not result in the total or partial disablement of the workman for a period exceeding three days, and in respect of any injury not resulting in death or permanent total disablement caused by an Accident which is directly attributable to the workman having been at the time thereof under the influence of drink or drugs or the wilful disobedience of the workman to an order expressly given or to a rule expressly framed, for the purpose of securing the safety of workmen, or the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman. Looking to those exceptions and or exclusions which are made available in Section 3 of the said Act to the employer, I have to say that such type of exclusion or defence is not raised by the opponent Nos. 1 and 2 in their written statements. In the absence of legal defence and/or pleadings and/or proof thereof, mere denial of the plaint allegations by the original opponent Nos. 1 and 2 is not sufficient. I found that evidence laid on behalf of the applicant is cogent and has established the relationship of the employer and employee in between the applicant and original opponent No. 2. I have also found from the evidence on record that the applicant, a minor boy, was engaged by the opponent No. 2 at the relevant time and has suffered permanent disablement, on Account of loss of four fingers of his right hand. I have also seen the certificate placed on record by the applicant issued by Civil Surgeon. From the evidence which is adduced on behalf of the applicant on record, it is, therefore, established that relationship between the applicant and opponent No. 2 is that of the employer and employee and since the applicant No. 1, was permitted by Nasik Road, Deolali Municipal Council to run the business of sugar cane juice centre by name Shri Gurudatta Raspan Gruha, the respondent No. 1 is also jointly and severally liable and responsible to make the payment of compensation.

15. The amount of compensation which is worked out by the learned Commissioner for Workmen's Compensation is also in consonance with the provisions of the said Act. It cannot be said to be unreasonable, or excess amount of compensation. The findings recorded by the learned Commissioner for Workmen's Compensation on point Nos. 2, 3 and 4 are findings of facts, based on material on record. Apart from the limited scope of Section 30 of the Act, even on merits if I am to record the findings on point Nos. 2, 3 and 4, I say that no error of fact or law is committed by the learned Commissioner for Workmen's Compensation. Therefore, the finding on the issues framed above are recorded Accordingly. I see no reason to interfere with the judgment and order passed by the learned Commissioner for Workmen's Compensation to pay compensation and especially from the fact situation that meagre amount of Rs. 11,760/- is being granted and is also deposited by the present appellant as stated above, way back on September, 27th, 1984.

16. In this view of the matter, there is no merit in the present appeal and, therefore, the said appeal filed by the original opponent No. 2 is dismissed. There is no order as to costs. The interim order, if any, stands vacated. If the Commissioner for Workmen's Compensation, Nasik has not paid the amount deposited with him, to the original applicant, he is directed to make the payment of said amount to the original applicant with interest accrued thereon within four weeks and report the compliance of the order to the registry of this Court, immediately.

Certified copy expedited.