Bombay High Court
New India Assurance Company Ltd vs Sunita Gajanan Shirsath & Anr on 11 January, 2018
Bench: M.S. Sonak
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fa1210.03.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1210 OF 2003
The New India Assurance Company Ltd.
Through its Divisional Manager,
Adalat Road, Aurangabad Appellant
Versus
1. Smt. Sunita Gajanan Shirsath
age 23 years, occ. household
2. Sagar Gajanan Shrisath
age 1 year, minor u/g of
Respondent no. 1 Smt. Sunita
3. Jgannath Sakharam Shirsath
age 65 years, occ. nil
4. Sou. Laxmibai Jagannath Shirsath
age 60 years, occ. nil
All r/o Taklibhan, Tq. Shrirampur
Dist. Ahmednagar.
5. Shri Biban Sardar Shaikh
age major, occ. business
r/o Ghogargaon, Tq. Newasa
Dist. Ahmednagar. Respondents
Mr. Mohit Deshmukh with Mr.S.G. Chapalgaonkar, advocates for
appellant.
CORAM : M.S. SONAK, J.
DATE : 10th JANUARY, 2018
JUDGMENT :
1. Heard learned counsel for appellants.
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2. The challenge in this appeal is to the award dated
06.08.2003 made by the Commissioner for Workmen's
Compensation, Ahmednagar directing appellant to pay
respondents-claimants an amount of Rs. 4,27,140/- alongwith
interest at the rate of 12% per annum.
3. Learned counsel for appellant submits that in this case,
claimants have relied upon salary certificate which indicates salary
of the deceased workman as Rs. 4,000/- per month. Claimants
did not examine the employer in order to prove this document.
Therefore, the appellant-insurance company got a summons issued
to the employer to depose to such document. Mr. Biban Sardar
Shaikh, the employer, who was also made party to the proceeding
before the Commissioner, has stated in his deposition that
deceased workman was indeed employed as driver by him but
against salary of Rs. 2,000/- per month and not Rs.4,000/- per
month. The employer explained that he had signed on a blank
paper so as to enable the claimants to prepare salary certificate
and what is stated in the salary certificate does not reflect the
correct salary of the deceased.
4. Learned counsel for appellant submits that such deposition
has been ignored by the Commissioner and this gives rise to the
following substantial question of law.
IV Whether the Commissioner for
Workmen's Compensation is justified in relying
upon the document in form of salary certificate
which is not even exhibited or proved by the
applicants, specially when the contents of the
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said Certificate are denied by the author of the
document by stepping into the witness box.
5. The stage when this appeal was admitted, no substantial
question of law was framed. Learned counsel for appellant was
however, permitted to argue and satisfy this Court that the
substantial question of law as aforesaid indeed arises in this
appeal. Learned counsel for appellant has made submissions as
aforesaid and urged that not only aforesaid substantial question of
law arises in the matter but further, such question is required to
be answered in favour of appellant. On this basis, learned counsel
for appellant submits that compensation amount awarded to the
claimants is required to be reduced by atleast 50%.
6. The issue as to whether the salary of deceased workman was
Rs. 2,000/- as contended by claimants is basically an issue of fact.
So also, the weight to be attached to the document i.e. salary
certificate is an issue which involves evaluation of oral or
documentary evidence. In that sense, this is also an issue of
appreciation of evidence. Normally, in such situation, it cannot be
said any question of law, much less, substantial question of law is
involved.
7. This cannot be said to be a case of no evidence so as to raise
a substantial question of law on account of perversity of finding of
fact. Claimants had deposed that the salary of deceased workman
was Rs. 4,000/- per month and had also produced salary
certificate in support of such oral evidence. Even the employer
who was summoned by appellant-insurance company has admitted
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his signature on the salary certificate but has explained that the
signature was given on the blank paper. The employer was also
impleaded as respondent in the proceeding before the
Commissioner but, the employer chose not to file any written
statement contradicting claimants' assertion that deceased was
drawing salary of Rs. 4,000/- per month. From this, it is clear
that the finding that deceased workman was drawing salary of
Rs. 4,000/- per month is not the finding which is based on no
evidence so as to be stigmatised as perversity. At the highest, the
finding is a result of appreciation of evidence. It is possible that
the Commissioner may have evaluated the deposition of the
employer as against the document which admittedly bears
signature of the employer. It is also possible, as in the present
case, that the Commissioner stands by the written document and
the circumstance that, the employer, at the earliest opportunity,
chose neither to file any written statement nor to contend that the
blank paper was signed by him and the same was mis-used.
Infact, from the deposition of employer, it transpires that the
employer allegedly signed on blank paper in order to enable the
claimants to prepare salary certificate. All these are really matters
of appreciation of evidence and it cannot be said that they can
raise any question of law, much less, substantial question of law.
Accordingly, it is not possible to allow this appeal and reduce the
compensation by 50%.
8. For the aforesaid reasons, at this point of time, there is no
case made out to interfere in the impugned award and reduce
compensation awarded to the claimants. Accordingly, appeal is
dismissed. There shall be no order as to costs.
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9. Pending civil application if any, does not survive and stands
disposed of.
( M.S. SONAK, J. )
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