Sarifbhai Usmangani Shaikh vs Vinubhai Desaibhai Baraiya
2021 Latest Caselaw 18301 Guj

     C/FA/3688/2021                              ORDER DATED: 10/12/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 3688 of 2021
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                   In R/FIRST APPEAL NO. 3688 of 2021
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                      SARIFBHAI USMANGANI SHAIKH
                                 Versus
                       VINUBHAI DESAIBHAI BARAIYA
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Appearance:
MR VA MANSURI(2880) for the Appellant(s) No. 1
for the Defendant(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                            Date : 10/12/2021
                             ORAL ORDER

1. This is an appeal under Section 30 of the the Workmen's Compensation Act, 1923 ( for short "the WC Act") to assail the judgment and order dated 6.8.2018 passed by the learned Ex Officio commissioner for the Workmen's Compensation Act and the Judge Labour Court, Nadiad in W.C. (Non Fatal) No.05 of 2009 and further order dated 3.7.2021 passed by learned Ex Officio commissioner for the Workmen's Compensation Act and the Judge Labour Court, Nadiad WC Application (Non Fatal) No.05 of 2020.

2. The facts giving rise to the present appeal which set out in the present appeal in short are that the appellant is running flour mill in the name and style "Hind Flour Mill". As per the say of the respondent, he work in the flour mill for a period of one year and three months and his duty hours as 7:00 am to 8:00 pm and he was paid Rs.2,800/- per months as a salary. On 29.12.2004, the left hand of the respondent was crushed in the flour mill. The

C/FA/3688/2021 ORDER DATED: 10/12/2021

respondent was taken to KMG Hospital by the respondent for treatment where indoor treatment was given to him and the left hand was amputated and no compensation was paid to the respondent. Therefore, respondent filed a claim application in the labour court which was allowed by the judgment and order dated 6.8.2018. The appellant did not pay the compensation and thereafter, the respondent preferred WC Misc. Application No.05 of 2020 to recover the amount of compensation. The appellant did not remain present to contest the application, and therefore, by order dated 3.7.2021, recovery warrant issued by the Commissioner. The appellant, therefore, challenged the initial order passed on the main compensation as also the recovery application in this appeal.

3. I have heard Mr.VA Mansuri, learned advocate for the appellant.

4. Mr.Mansuri, learned advocate for the appellant vehemently submits that the respondent was not workman in the flour mill of the appellant. The respondent happens to be the friend of the appellant and in that capacity, he used to sit in the flour mill of the appellant. He further submits that the Commissioner has assessed the monthly income of respondent without there being any evidence. He, therefore, submits that the substantial questions of law are involved in the appeal. Hence, it may be admitted.

5. I have given my thoughtful consideration to the rival submissions. Only contention raised by Mr.Mansuri,

C/FA/3688/2021 ORDER DATED: 10/12/2021

learned advocate is that the respondent happens to be friend of the appellant and in that capacity he used to sit in the flour mill. There is no substance in the submission of Mr.Mansuri, learned advocate that the appellant had contested the main claim petition before the Commissioner and the Commissioner has after consideration oral and documentary evidence, recorded finding of fact that the respondent was an employee (workman) of the appellant. There is no other substantial question of law is pointed out by Mr.Mansuri, learned advocate which can be said to have been involved in the appeal whether the respondent was employee or not is a question of fact which is decided by the Commissioner against the appellant. To put it in other words, Commissioner has recorded the finding of fact that the respondent was an employee of appellant. As per the provisions of Section 30 of the WC Act, the appeal can be entertained only on substantial question of fact and as noted in the forgoing, no substantial question of law involved in the appeal.

6. For the forgoing reasons, the appeal stands dismissed at the threshold.

7. Since the main matter is disposed of, the Civil Application does not survive. Hence, the same is disposed of accordingly.

(A.G.URAIZEE, J) ALI