[Cites 21, Cited by 0]
Gujarat High Court
Hi Speed Turbo Company Through Prop. ... vs Lh Of Decd Jayeshbhai Kanjibhai Makwana ... on 21 April, 2026
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Reserved On : 16/03/2026
Pronounced On : 21/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 768 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 768 of 2024
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT
OF AMOUNT) NO. 2 of 2024
In R/FIRST APPEAL NO. 768 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
=====================================================
Approved for Reporting No Yes
No
=====================================================
HI SPEED TURBO COMPANY THROUGH PROP. SHARADBHAI
PARSOTTAMBHAI AMIN
Versus
LH OF DECD JAYESHBHAI KANJIBHAI MAKWANA
MANJULABEN WD/O JAYESHBHAI KANJIBHAI MAKWANA &
ORS.
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Appearance:
MR PRABHAKAR UPADYAY(1060) for the Appellant(s) No. 1
MR UT MISHRA(3605) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. This is a first appeal under Section 30 of the
Employees Compensation Act, 1923 (hereinafter referred to as
the "EC Act") challenging the judgment and award dated
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09.11.2022 passed below Exhibit-73 by the learned Employees
Compensation Commissioner, Anand in W.C. (Fatal) Application
No.1 of 2018.
2. The brief facts of the case in a nutshell are as under:-
2.1 On 20.02.2017, deceased - Jayeshbhai Kanjibhai
Makwana, who was working as a part-time helper in High Speed
Turbo Company (Original defendant No.1), was called by Mr.
Harshadbhai Bhikhabhai Makwana(Defendant No.2) in the
Marketing office of the defendant No.1 to attend the repairing
call of Alpeshbhai Manubhai Shah (Defendant No.3).
2.2 Pursuant to the instructions received from defendant
No.2, deceased went with defendant No.3 to repair the
compression machine attached with the machine for the purpose
of tobacco removal. During the course of repairing, suddenly the
air pressure increased and the valve as well as iron-pipe
detached from the compression machine and flung on the face
and body of the deceased, due to which the deceased received
multiple injuries. The defendant No.3 took him to Sanjeevni
Hospital, but since there was no Medical Officer available, by
calling 108 ambulance service, he took deceased to Irish
Hospital for onward shifting to Ahmedabad Civil Hospital, where
deceased died on the same day, i.e. on 20.02.2017.
2.3 In the background of the aforesaid facts, the widow
and son of the deceased filed the W.C. (Fatal) Claim Application
No.1 of 2018 before the Workmen Compensation Commissioner,
Anand under the provision of the "EC Act" pleading that,
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deceased was given salary of Rs.8,000/- per month by the
defendant No.1, but no salary slip or ID card was provided and
since the deceased died during the course of employment, the
defendant No.1 is responsible for paying the compensation to the
claimants.
2.4 It was further pleaded that the deceased was 35 years
old at the time of the accident and considering the factor of
197.06, the petitioners are entitled to the compensation of
Rs.7,88,240/- along with the interest and penalty.
2.5 The learned Workmen Compensation Commissioner,
Anand by impugned judgment and award dated 09.11.2022
directed the appellants herein to pay Rs.7,88,240/- with yearly
interest of 12% from the date of the petition i.e.11.02.2017, till
the realization and the funeral charge of Rs.5,000/- was granted
and Rs.78,824/- was granted towards the penalty being 10%
amount of the total of compensation.
2.6 Being aggrieved, defendant No.1 filed the present
appeal under Section 30 of the "EC Act".
3. Heard learned advocate Mr. Prabhakar Upadyay
appearing for the appellant and learned advocate Mr. Umang
Raval for learned advocate Mr. U.T. Mishra for the defendant
No.1 - original claimants. None remained present for the other
respondents.
3.1 Learned advocate Mr. Prabhakar Upadyay submitted
that, except bare statements of the claimants, no evidence is
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produced on record to show that the deceased was an employee
of the defendant No.1.
3.2 He would further submit that the accident admittedly
took place within the premises of the defendant No.3, which
gives the presumption that the deceased was an employee of the
defendant No.3. He would further submit that the presumption
would be strengthened on the ground that defendant No.3 paid
Rs.10,000/- to the deceased having received the injuries.
3.3 Learned advocate Mr. Prabhakar Upadyay further
submits that defendant No.1 has produced the salary registers
and other documentary evidence on record to establish that the
deceased was not an employee of the defendant No.1 - Company.
3.4 In addition to aforesaid submission, learned advocate
Mr. Prabhakar Upadyay submits that the pleading of claimants
suggests that the deceased was working as a full-time Helper
with some other company. On the fateful day, he met to
defendant No.2 and demanded a loan of Rs.100/-. He would
further submit that, as per the evidence, the defendant No.2 was
claimed to be a Marketing Manager of the defendant No.1 -
company had directed him to do some work for Rs.100/-.
3.5 Learned advocate Mr. Prabhakar Upadyay submits
that even, it is not proved on record that the defendant No.2 is
the Marketing Officer of the defendant No.1 - company, in that
circumstances also, since there is absence of an
employee/employer relationship between the parties as also
claimants hopelessly failed to prove the same, the assessment of
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compensation and grant thereof by the Workmen Compensation
Commissioner is totally illegal, unjust and against the settled
principle of law.
3.6 It is also submitted by learned advocate Mr.
Prabhakar Upadyay that the claimant No.2 - Minor Hiren is not
the son borne out of the wedlock between Manjulaben and
deceased - Jayeshbhai. He would further submit that, after the
death of deceased - Jayeshbhai, his Widow - claimant No.1 -
Manjulaben married to her Dier (Brother-in-law) and thereafter
the son was born. This factum itself says that the claimant No.1
is not a dependant and since claimant No.2 married after the
death of her husband, she does not fall within the definition of
'dependant'. The learned Tribunal, again, did not decide the vital
issue and thereby, fell into the error.
3.7 In the aforesaid submission, learned advocate
Mr. Prabhakar Upadyay submits to admit and allow this appeal
as the aforesaid argument contains substantial question of law.
4. Per contra, learned advocate Mr. Umang Raval
referred to the Police statements recorded in the investigation of
the accidental death Case No.4/2017 and submitted that the
statement of Harshadbhai, statement of the deceased and other
statements recorded during the investigation of the offence are
sufficient enough to point a finger that the deceased was a part-
time Helper of defendant No.1 - company and lost his life during
and in course of the employment of defendant No.1. Therefore,
the learned Workmen Commissioner has rightly assessed the
compensation. Thus, he submitted to dismiss this first appeal.
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5. None of the other respondents remained present.
6. In background of the aforesaid arguments, at the
outset, let me refer Section 30 of the "EC Act" as under:-
"30. Appeals.--(1) An appeal shall lie to the High Court
from the following orders of a Commissioner, namely:--
(a) an order awarding as compensation a lump sum
whether by way of redemption of a half- monthly
payment or otherwise or disallowing a claim in full or
in part for a lump sum; 7[(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 dependants of a deceased
employee, or disallowing any claim of a person
alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for 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 or 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 ten thousand rupees or such
higher amount as the Central Government may, by
notification in the Official Gazette, specify:
Provided, further, that no appeal shall lie in 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:
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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 has 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 Indian Limitation Act,
1963 (36 of 1963) shall be applicable to appeals under this
section."
7. The proviso to Section 30 of the "EC Act" indicates in
an appeal under Section 30, the High Court can interfere if the
party is able to prove that the findings are perverse, in the sense
that either of the findings are without any material on record or
it is totally opposed to the material on record. The appellate
Court i.e. High Court, has no jurisdiction to entertain the appeal
unless same involves the substantial question of law. Mere
difficulty to apply the facts to the law will not amount to a
substantial question of law. Thus, the scope of appeal under
Section 30 of the "EC Act" for maintaining the appeal against the
judgment and award passed by the Commissioner is very
limited. The language of the statute is clear and unambiguous
that until a party challenging the judgment and award of the
Workmen Commissioner establishes the involvement of
substantial question of law, it cannot challenge the same in the
appeal. The phrase 'substantial question of law' is also appearing
in Section 100 of the Code of Civil Procedure (hereinafter referred
to as 'the Code'). The Supreme Court in the case of Hero Vinoth
v. Seshammal, reported in (2006) 5 SCC 545, has interpreted
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the phrase 'substantial question of law', as occurring in the
amended Section 100 of "the Code", as under:-
"21. The phrase 'substantial question of law', as occurring in
the amended Section 100 CPC is not defined in the Code.
The word substantial, as qualifying 'question of law', means
of having substance, essential, real, of sound worth,
important or considerable. It is to be understood as
something in contradistinction with-technical, of no
substance or consequence, or academic merely. However, it
is clear that the legislature has chosen not to qualify the
scope of 'substantial question of law' by suffixing the words
'of general importance' as has been done in many other
provisions such as Section 109 of the Code or Article 133(1)
(a) of the Constitution. The substantial question of law on
which a second appeal shall be heard need not necessarily
be a substantial question of law of general importance. In
Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928
PC 172] the phrase substantial question of law as it was
employed in the last clause of the then existing Section 100
CPC (since omitted by the Amendment Act, 1973) came up
for consideration and their Lordships held that it did not
mean a substantial question of general importance but a
substantial question of law which was involved in the case.
In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC
1314] the Constitution Bench expressed agreement with the
following view taken by a Full Bench of the Madras High
Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR
1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case
[1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557)
'When a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court
thought it necessary to deal with that question at some
length and discuss alternative views, then the question
would be a substantial question of law. On the other hand if
the question was practically covered by the decision of the
highest court or if the general principles to be applied in
determining the question are well settled and the only
question was of applying those principles to the particular
fact of the case it would not be a substantial question of
law.' "
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Therefore, in absence of the question, which is not
decided previously or the question, which involves a debate, it
cannot be claimed as a substantial question of law.
8. Section 3 of the "EC Act" specifies Employer's liability
for Compensation. In order to attract the provision of Section 3,
the three conditions must be fulfilled. Firstly, a personal injury
or a death. Secondly, accident and thirdly, arising out of or in
course of employment. The coordinate Bench in case of
Bhimaben Wd/o. Bhagoji Raghoji Uttekar & Ors. v.
Nanubhai Ramanlal Shah & Anr., First Appeal No.1035 of
2009 in regards to the purpose of the Act, observed as under:-
"4....However, deceased fell down from the structure of the
board which is an accident. This admission is enough to
establish a relationship of employee and employer between
the deceased and opponent No. 1. However, it is contended
that the learned Commissioner has not considered this
important admission in the written-statement and has given
undue weightage on the lacunas found in the oral deposition
of claimant No. 1, as well as, the witness. It is further
contended that in absence of any contrary evidence led by
opponent No. 1, the admission made in the written-
statement, is sufficient to establish relationship. The injury
has arisen out of and in the course of employment. Except
above, no other submissions were canvassed by learned
advocate for the appellants.
5.... It is well settled proposition of law, that the Act is a
piece of social security and welfare legislation. The
dominant purpose of the Act is to protect the workmen and
the provisions of the Act are not to be interpreted in a narrow
manner so as to exclude the employee from compensation.
Strict proof, as contemplated under the Indian Evidence Act,
1872 is not expected while deciding the application under
the Employee's Compensation Act."
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9. The Supreme Court in the case of Daivshala & Ors.
v. Oriental Insurance Company Ltd. & Anr., reported in 2025
Live Law (SC) 748, held that both EC Act and ESI Act are
beneficial piece of legislations. The Supreme Court further
explained the interpretation of accident arising out of and in
course of employment. Para 22 and 23 of which reads as under:-
"22. The EC Act was enacted to provide for the
payment by certain classes of employers to their employees
of compensation for injury by accident. Section 3, as set out
earlier, provides that if personal injury is caused to an
employee 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 the Act.
Section 4 sets out that where death results from the injury
an amount equal to 50 per cent of the monthly wages of the
deceased employee multiplied by the relevant factor ought to
be paid.
23. The EC Act is also a beneficial piece of
legislation. In 2016, this Court in Jaya Biswal & Others v.
Branch Manager, IFFCO Tokio General Insurance Company
Limited & Another, (2016) 11 SCC 201, while holding that
the EC Act was a social welfare legislation meant to benefit
the workers and their dependents and to give the employees
a sense of security held as under: -
"20. The EC Act is a welfare legislation enacted to secure
compensation to the poor workmen who suffer from
injuries at their place of work. This becomes clear from a
perusal of the preamble of the Act which reads as under:
'An Act to provide for the payment by certain classes
of employers to their workmen of compensation for
injury by accident." This further becomes clear from a
perusal of the Statement of Objects and Reasons,
which reads as under:
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'... The growing complexity of industry in this country,
with the increasing use of machinery and consequent
danger to workmen, along with the comparative
poverty of the workmen themselves, renders it
advisable that they should be protected, as far as
possible, from hardship arising from accidents.
An additional advantage of legislation of this type is
that, by increasing the importance for the employer of
adequate safety devices, it reduces the number of
accidents to workmen in a manner that cannot be
achieved by official inspection. Further, the
encouragement given to employers to provide adequate
medical treatment for their workmen should mitigate
the effects to such accidents as do occur. The benefits
so conferred on the workman added to the increased
sense of security which he will enjoy, should render
industrial life more attractive and thus increase the
available supply of labour. At the same time, a
corresponding increase in the efficiency of the average
workman may be expected.'
21. Thus, the EC Act is a social welfare legislation meant
to benefit the workers and their dependants in case of
death of workman due to accident caused during and in
the course of employment should be construed as such."
(Emphasis supplied)
10. The core issue raised by learned advocate Mr.
Prabhakar Upadyay that the deceased was not the employee of
the appellant - original defendant No.1 and no evidence has been
produced by the claimant to demonstrate and prove that the
deceased was an employee of the defendant No.1 - company;
however, I am at a loss to accept such submission. The
claimants have produced police papers he has received under
the RTI Act. The police papers, though not exhibited, the veracity
and genuinity of those documents has not been questioned by
the other side.
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11. At Mark-1/7, the claimants have produced the
statement of deceased - Jayeshbhai. In his statement, he has
categorically stated that he was working as a Helper in the Amin
Engineering and was doing a part-time job with the original
defendant No.1 - company and on the fateful day, when he
reached to his job at High Speed Turbo Company, at around 8'o
clock, the Marketing Officer - Harshad Makwana met him and
told that defendant No.3 has lodged a repairing call and directed
him to go along with the defendant No.3 to repair the
compressor. Following the command, deceased went along with
Alpeshbhai and when he was repairing the compressor at the
premises for defendant No.3 - Alpeshbhai, due to increase in the
air pressure, the compressor was blasted and deceased received
the fatal injuries. On the happening of the accident, Alpeshbhai
immediately called Harshadbhai and they both took him to the
hospitals for the treatments. Harshadbhai's statement was also
recorded by the Police, which is produced at Mark-1/11 and
which is supporting the statement of deceased - Jayeshbhai.
12. If we peruse the proceeding taken place before the
learned Workmen Commissioner, the defendant No.1 initially did
not file the objection to the claim petition till the widow of the
deceased entered into the witness-box. However, thereafter,
having came to know about the case of the claimant, the
defendant No.1 - company not only filed its written statement,
but also filed some documents i.e. copy of the register, to show
and demonstrate that the deceased was not an employee.
Perhaps with view to wipe out the core of claimant. There is all
possibility that defendant has created documents, register, etc.
to negate the core of the claimants.
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13. On perusal of the evidence placed before the learned
Workmen Commissioner, it appears that the widow of the
deceased was put to question by the learned advocate appearing
for the defendant, particularly defendant No.3. In reply to such
question, it is established that deceased was an employee of the
defendant No.1 - company. The defendant No.1, who in a hurry
to disown the deceased as an employee, also disowned that
Harshad Makwana was its Marketing officer; however, did not
examine Harshad Makwana to buttress this aspect. The witness
- Mr. Bhaskar Ambalal Patel examined by the defendant No.1 -
company at Exhibit-56 tried to establish that the name of the
deceased is not appearing in the salary register of the defendant
No.1 - company, meaning thereby that the deceased was not the
employee of the defendant No.1 - company, did not find his own
name in the salary register and could not answer it, except
saying that salary register is only maintained for the workers
and not for the executives. Such deposition assumed the
importance on the aspect that, he being an executive, was also
not provided the ID Card. Thus, what could be appearing that
the defendant No.1 - company, in order to disown the deceased
as an employee, attempted all possible acts and raised much
hue and cry, but that all appears to be a brought up attempt on
the part of the defendant No.1 - company and such evidence
cannot fill the requirement of true evidence. The defendant No.3
and claimant, both succeeded in proving that deceased was an
employee of the defendant No.1 - company.
The statement recorded during the police investigation
have been questioned by learned advocate Mr. Prabhakar
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Upadyay on the ground that the statement recorded by the
Police have no evidentiary value.
14. The submission would have been attractive, provided
that the Court is conducting the criminal trial, wherein in view of
Section 162 of the Code of Criminal Procedure (hereinafter
referred to as 'the Cr.PC'), the statement made by any person to
the Police officer in the course of investigation shall have no
evidentiary value, but in the present case, such statements are
pressed into service in a matter under the "EC Act".
15. In view of Section 35 of the Evidence Act, 1872
(hereinafter referred to as the 'Evidence Act''), when a public
servant in discharge of his official duty, pertaining to fact and
issue and being part of official record, has recorded something, it
is admissible. Section 162 of 'the Cr.PC' has been enacted for the
benefit of the accused. The bar created by the statute is a limited
one and has no application if the statement made before a Police
officer in the course of investigation under Chapter-12 is to be
used in any proceedings, other than an inquiry or trial, or in
respect of an offence other than that which was under
investigation at the time when such statement was made. Thus,
such Section does not affect the civil proceedings or a proceeding
under Article 32 or 226 of the Constitution of India and as such,
a statement made before a Police officer during investigation can
be produced or used in evidence in a writ petition under Article
32 or 226 of the Constitution of India, provided it is relevant
under the 'Evidence Act'. In Khatri & Ors. (IV) v. State of
Bihar & Ors. reported in (1981) 2 SCC 493.
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16. In the present case, there are two Police statements,
one of deceased and another of Harshad Makwana. The
statement of the deceased recorded by the Police officer is as to
the cause of death. In this statement, he categorically stated that
how he was directed to conduct the repairing call of the
defendant No.3, how Mr. Harshad Makwana directed him to
conduct the repair call. He further stated that he was working
with defendant No.1 - company as a part-time Helper and in
which way the accident took place. The deceased was expired
due to the accidental injury he has received from the repairing
work of the compressor. Thus, the statement made by the
deceased to the Police equates with the requirement of Section
32 of the 'Evidence Act' and became the relevant and admissible
evidence as the dying declaration of the deceased.
17. The statement of Harshad Makwana has not been
impeached by the defendant No.1 - company. He has not been
called as a witness to deny what is recorded in the Police
statement. As observed hereinabove, in view of Section 35 of the
'Evidence Act', this statement comes from the record maintained
by the Public Officer. Thus, both the statements are sufficient to
prove the root question raised by the appellant.
18. As far as calculation of the compensation based upon
the statutory formula is concerned, learned advocate
Mr. Prabhakar Upadyay did not raise any argument.
19. In the aforesaid circumstances, I find that there is no
substantial question of law involved in the matter. What has
been argued by learned advocate Mr. Prabhakar Upadyay is
related to the facts of the case and nothing more than it.
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20. There is no debatable issue or previously undecided
issue involved in the matter. In view of above, this appeal stands
dismissed. The impugned judgment and award is upheld.
21. The Workmen Commissioner is directed to release the
amount of compensation in favor of the claimants by
apportioning it in accordance with law amongst the claimants.
22. Connected Civil Applications do not survive.
23. Record and Proceedings, if any, to be sent back to the
concerned Court forthwith.
Sd/-
(J.C. DOSHI, J.)
Raj
