Himachal Pradesh High Court

Kavi Khanna vs Sita Devi & Others on 6 November, 2023

Bench: Rakesh Kainthla

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO No. 93 of 2014 Reserved on:12.10.2023

Date of Decision: 06th November, 2023

Kavi Khanna

....Appellant Versus Sita Devi & others.

....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? No.

For the Appellant : Mr. Neeraj Gupta, Senior Advocate with Ms. Rinki Kashmiri, Advocate.

For the Respondents : Mr. Anuj Gupta, Advocate.

Rakesh Kainthla,Judge.

The present appeal is directed against the order passed

by the learned Commissioner (IV), Shimla, Exercising Powers

under the Employee's Compensation Act, 1923, vide which the

application for compensation filed by the respondents (claimants

before the learned Commissioner) was allowed and compensation

of ₹2,34,820/- alongwith interest @12% per annum from

08.08.2002 till its realisation was awarded in favour of _____________________________

Whether reporters of the local papers may be allowed to see the judgment? Yes

respondent no.2. (Parties shall hereinafter be referred to in the

same manner as they were arrayed before the learned

Commissioner for convenience).

2. Briefly stated, the facts giving rise to the present

appeal are that the claimants filed an application seeking

compensation for the death of Jagat Ram. It was pleaded that

Jagat Ram was a workman. He was an experienced Carpenter and

his services were availed by many persons. Respondent no.1, is the

owner of Hotel Satkar, Lakkar Bazar, Shimla and respondent no.2

is looking after the business of Hotel Satkar. The respondents

availed the services of Jagat Ram on 7th July 2002. Jagat Ram fell

while repairing the window of the hotel. He sustained a head

injury and became unconscious. He was taken to IGMC, Shimla,

where he was declared brought dead. Jagat Ram was about 58

years old at the time of his death. He was earning more than

₹15,000/- (Rupees Fifteen Thousand) per month by working as a

Carpenter. He was employed by the respondent on daily wages of

₹250/- per day. A notice was served upon the respondents to pay

the compensation for the death of Jagat Ram. However, no

compensation was paid. Hence, an application was filed to seek

the compensation.

3. The application was opposed by respondent no. 2 by

filing a reply taking preliminary objections regarding lack of

maintainability, the application being bad for mis-joinder and

non-joinder of parties and the application being barred by

limitation. The contents of the application were denied on merits.

It was specifically denied that the respondents had engaged the

services of Jagat Ram on 07.07.2002. The relationship between

the applicants and Jagat Ram was also denied and it was prayed

that the application be dismissed.

4. The learned Commissioner framed the following

issues on 19.11.2008:-

1. Whether the applicants are entitled for

compensation under the Workmen Compensation Act as prayed? OPP

2. Whether the application is maintainable? OPR.

3. Whether the application is not instituted/constituted and verified in accordance with the law? OPR.

4. Whether the application bad for mis-joinder and non-joinder of necessary parties? OPR.

5. Whether the no cause of action has accrued in favour of the applicant? OPR.

6. Whether the application is barred by limitation? OPR.

7. Relief.

.

5. The parties were called upon to produce the evidence

and the applicant examined Gurdev Singh (PW-1), C. Sunil Kumar

(PW-2), and Dr. Piyush Kapila (PW-3). The respondent no.2

examined himself (RW-1) and Shyam Singh (RW-2).

6. The learned Commissioner held that claimant no. 3 did

not claim that he was dependent upon the deceased. He was

major and did not fall within the definition of dependent.

Claimant no. 4, was married and could not be called to be a

dependent upon the deceased. Claimant no. 1 had died during the

pendency of the proceedings and her name was deleted. Hence,

only claimant no. 2 was entitled to seek compensation. It was duly

proved on record that Jagat Ram had died in Hotel Satkar. The

version of the claimant that he was engaged in carrying out the

repairs was probable. Even if the version of the respondents is

accepted that he had visited the hotel to negotiate the repair, the

same will fall within the definition of arising out of the course of

employment, the claimant No.2, namely, Smt. Sita Devi was held

entitled to a compensation of ₹2,34,820/- alongwith interest

@12% per annum. Issue no. 1 was partly answered in the

affirmative, issue no. 2 was answered in the affirmative, issues no.

3 to 6 were answered in the negative, and the application was

allowed.

7. Being aggrieved from the order passed by the learned

Commissioner, the present appeal has been filed, asserting that

the learned Commissioner erred in deciding the issue against

appellants/respondents. There was no relationship of employer

and employee between the respondents and Jagat Ram. The

petition was not maintainable. Learned Commissioner erred in

relying upon the evidence of the claimants regarding the

employment. No contract of service was proved. It was not

established that Jagat Ram had carried the work of Carpenter in

the hotel. Kavi Khanna was not the owner of the hotel and there

was no question of employing Jagat Ram as Carpenter. Kavi

Khanna was only assisting staff for the management. The order

could not have been passed against Kavi Khanna. Learned

Commissioner, misread the evidence and erred in holding that

Jagat Ram died during the course of employment. The claimants

had no cause of action to file and maintain the present petition.

Jagat Ram came to the hotel to inspect the windows and doors on

which bolts were to be affixed. Shyam Singh, one of the

employees of the hotel, took Jagat Ram for making inspection and

reported what article/material was required for affixing such

bolts. No work as a Carpenter was assigned to Jagat Ram. When

Jagat Ram did not return, the employee went to check on him and

found that Jagat Ram was lying on the floor. He could not be

called an employee engaged by the respondent. The accident had

also not occurred during employment. No contract of service or

employment was established. No wages were proved. The

compensation was wrongly assessed and the amount is

exaggerated. Therefore, it was prayed that the present appeal be

allowed and the order passed by the learned Commissioner be set

aside.

8. The appeal was admitted on 07.08.2014, on the

following substantial questions of law:-

1. Whether there is no contract of service proved between appellants and Shri Jagat Ram deceased, is not the impugned Award passed by learned Commissioner without jurisdiction as it was wrongly presumed that Sh. Jagat Ram was

employed in Hotel Satkar for doing work as a carpenter?

2. Whether the findings of learned Commissioner

.

that Shri Jagat Ram died during the course of employment are erroneous, illegal and perverse as the engagement of Shri Jagat Ram as carpenter

to work in the Hotel was not at all proved?

3. Whether the learned Commissioner gravelly

erred in law and exceeded its jurisdiction in wrongly presuming the income of the deceased and applying incorrect factor for calculating the

compensation which is highly inflated?

9. I have heard Mr. Neeraj Gupta, learned Senior Counsel

assisted by Ms. Rinki Kashmiri, Advocate for the

appellants/respondents and Mr. Anuj Gupta, learned counsel for

the respondents/applicants/Claimants.

10. Mr. Neeraj Gupta, learned Senior Counsel for the

appellants/respondents submitted that the relationship of

employer and employee was not proved. Jagat Ram was merely

called to give an estimate of the repairs and was not engaged in

the work. Learned Commissioner had passed the order on

surmises and conjectures. The order is not sustainable. Hence, he

prayed that the appeal be allowed and the order passed by the

learned Commissioner be set aside.

11. Mr. Anuj Gupta, learned Counsel for the

respondent/applicants/claimants supported the order passed by

the learned Commissioner, and submitted that no inference is

required with the same.

Substantial questions of law no. 1 and 2.

12. These substantial questions of law are intricately

connected and are being taken up together.

13. The claimants issued a notice on 15.10.2003 (Ext.P-5)

to Nirmal and Kavi Khanna seeking ₹2,48,000/- as compensation.

The respondents issued a reply (Ext.P-6) on 03.11.2003.

It contains the earliest version of the incident as per the

respondents. It reads that Jagat Ram visited Hotel Satkar on

07.07.2002 to see and examine the work, which was assigned to

him as per the conversation between the Manager of Hotel Satkar

and late Sh. Jagat Ram. He was called to the premises for the

repair of windows, doors and bolts and in pursuance of the same

at about 2:00 p.m. Jagat Ram, reached the hotel Satkar. Kavi

Khanna asked his employee Shyam Singh to get the work

inspected so that the material for the repair of the doors, and

windows could be purchased accordingly. Shyam Singh took Jagat

Ram to the doors and windows of the Hotel from the reception

and they saw the doors and windows. When they reached the

veranda of the fourth storey, Shyam Singh said that water seeped

from the window adjacent to the fourth storey. Shyam Singh

asked Jagat Ram to do the needful so that the seepage did not

enter the room.

Jagat Ram asked Shyam Singh to bring the

measuring tape from the bag, which was kept by him in the

reception and he started measuring the length and width of the

window, which was asked to be repaired. When Shyam Singh

returned with the measuring tape. Jagat Ram was found lying on

the floor on the Veranda of the 4th storey and blood was oozing

from his head.

14. This reply contains many valuable admissions. Reply

admits that Jagat Ram visited the hotel pursuant to the talk

between the Manager and Jagat Ram. It admits that Shyam Singh

took Jagat Ram to the doors and the windows at the instance of

Kavi Khanna. It admits that Shyam Singh told Jagat Ram that

water seeped from the window and he asked Jagat Ram to do the

needful so that seepage did not enter the room. This admission

proves that Shyam Singh had asked Jagat Ram to repair the

window to prevent the seepage of the water did not enter the

room. Jagat Ram started the process and demanded the measuring

tape for measuring the length and width of the window, which

was to be repaired. The relationship of employer/employee came

into existence, the moment Shyam Singh told that the window

was to be repaired and seepage was to be stopped and Jagat Ram

started executing the work. It cannot be said that there was no

relationship of employer and employee. The respondent denied

this version in the reply filed on behalf of respondent no.2. It was

denied that the services were availed. It was asserted that the

services were never hired. It was asserted that Jagat Ram had

never worked under the respondent and there was no question of

the employment. Significantly, Shyam Singh (RW-2) stated that

Jagat Ram visited the hotel to check and carry out the work of

repair of the windows and the doors. He called the owner of the

hotel, who advised him to show the work to Jagat Ram. He

(Shyam Singh) showed the work to Jagat Pal and when they

reached on 4th floor, he (Shyam Singh ) told Jagat Ram that water

was seeping from one window, which was to be repaired. Jagat

Ram had kept his instruments at the reception and he asked

Shyam Singh to bring the measuring tape. When he returned, he

saw Shyam Singh lying on the floor.

15. The statement of Shyam Singh also establishes that he

had taken Jagat Ram inside the hotel as per the directions of the

owner. His statement also establishes that Jagat Ram was to

execute the work and Shyam Singh had asked Jagat Ram to repair

the window from where the seepage was taking place. Hence, the

testimony of this witness also establishes that he had asked Jagat

Ram to repair the window at the instance of the owner and Jagat

Ram commenced the repair as per his directions.

16. Kavi Khanna (RW-2) stated that the services of the

Jagat Ram were never hired. Jagat Ram never came to the hotel to

carry out any work. No accident or fall of any Carpenter had taken

place inside the hotel.

17. The testimony of this witness is contrary to the reply

sent to the notice. It is contrary to the statement of Shyam Singh

that Jagat Ram was shown doors and windows at the instance of

the owners. It is contrary to the admitted facts that Jagat Ram had

died in the hotel. Therefore, the learned Commissioner had rightly

discarded the testimony of this witness.

18. The term 'workman' has been defined in Section 2(n)

of the Workmen's Compensation Act, 1923 as:-

2(n) "Workman means any person who is -

(i) a railway servant as defined in 20[clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989)], not permanently employed in any

administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(i-a) (a) a master, seaman or other member of the crew of a ship,

(b) a captain or other member of the crew of an aircraft,

(c) a person recruited as a driver, helper,

mechanic, cleaner or in any other capacity in connection with a motor vehicle,

(d) a person recruited for work abroad by a

company, and who is employed outside India in any such capacity as is specified in Schedule II

and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or]

(ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of [the Armed Forces of the Union] [* * *] and any reference to a workman who

has been injured shall, where the workman is dead, include a reference to his dependants or any of them.

19. Schedule-II, provides lists of persons who are subject to the

.

provision of Section 2(i)(n) and are included in the definition of

Workman. The entry (viii) reads as under:-

(viii) employed in the construction, maintenance, repair or demolition of:

a. any building which is designed to be or is or has been more than one storey in height above the ground or

twelve feet or more from the ground level to the apex of the roof; or.

b. any dam or embankment which is twelve feet or more

in height from its lowest to its highest point; or

c. any road, bridge, tunnel or canal; or d. any wharf, quay, sea wall or other marine work including any moorings of ships;

20. It is apparent from the combined reading of these two

provisions that when a person has been employed for repair of any

building having more than one storey, he will fall within the

definition of Workman. In the present case, Jagat Ram was

employed, to repair the window on the fourth storey, which was

causing seepage; therefore, he will be covered within the

definition of the workman, provided under the Act.

21. Thus, it was duly established on record that Jagat Ram

had died during employment after he was asked to repair the

widow, which was causing seepage at the instance of the owner

and he was covered within the definition of the Workman. The

learned Commissioner had rightly held that the accident had

occurred during employment. The question of whether a person

was employed or not is a pure question of fact. It was laid down by

the Hon'ble Supreme Court of India in Golla Rajanna v. Divl.

Manager, (2017) 1 SCC 45: (2017) 1 SCC (Civ) 320: 2016 SCC OnLine

SC 1315 that an appeal lies before the High Court only on a

question of law. The Commissioner is the final Court on facts and

the High Court cannot re-appreciate the evidence. It was

observed:

"10. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare

legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to

reappreciate the evidence and recorded its own findings on the percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within

the competence of the High Court under Section 30 of the Act."

22. This judgment was followed in Fulmati Dhramdev

Yadav v. New India Assurance Co. Ltd., 2023 SCC OnLine SC 1105:2023

INSC 790 and it was held:

"17. The Act is unequivocal in stating that an appeal from an order of the Commissioner can be entertained only if there exists a substantial question of law to be considered. It has been observed by this Court that the phrase

"substantial question of law" within this Act shall be

understood by its general meaning, Om Prakash Batish v. Ranjit (2008) 12 SCC 212 (2 judge-bench)]. When considering the general meaning of this phrase, naturally,

the reference is to the Code of Civil Procedure (CPC). The rule therein is that framing of a substantial question of law is of cardinal importance.

18. A bare perusal of the impugned judgment shows that the

Court did not frame any such question.

19. The wording of the Act indicates that the existence of such a question is a prerequisite to the appeal being entertained.

20. Illustratively, in North-East Karnataka Road Transport

Corporation v. Sujatha, (2019) 11 SCC 514, (Two-Judge Bench) amongst numerous other cases, this Court has observed:

"12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first

appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and

law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."

21. The other ground making the order under challenge, amenable to interference when the scope of jurisdiction is circumscribed by it being exercised only in cases of "substantial question of law", is perversity in the findings. Here, the impugned judgement does not, even remotely, reflect the observation that the findings arrived at by the Commissioner are perverse. The difference, between the two judgements, i.e., the order of the Commissioner and the judgment in the First Appeal, was on the point of the

employer-employee relationship having been established. The Commissioner held such a relationship to have been established however, the appeal Court observed that "claimants have clearly failed to prove this aspect"

22. It may here only be noted that the Commissioner had

not returned any findings in respect of the validity of the non-availability of the license of the deceased nor was it one of the questions framed by the Commissioner for

consideration. In such a situation, while exercising powers within the limited purview allowed by section 30 of the Act, the learned Court below erred in making observations and giving a holding in that regard.

23. It has also been observed by this Court that the Commissioner is the last authority on facts involved in a case. In Golla Rajamma &Ors. v. Divisional Manager &Anr., (2017) 1 SCC 45, (2-Judge Bench) it was observed that

"under the scheme of the Act, the Workmen's

Compensation Commissioner is the last authority on facts. Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this

crucial question of limited jurisdiction and has ventured to reappreciate the evidence and recorded its own findings on the percentage of disability for which also there is no basis.

The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the

Act."

24. Keeping in view the said principles, the impugned judgement, ex-facie, appears to be in contravention

thereto.

25. On merits too, we find that the conclusions arrived at by the Commissioner, were undoubtedly "a possible view", therefore extinguishing the possibility of perversity in findings.

26. A Bench of two learned Judges observed in C. Manjamma v. New India Assurance Co. Ltd., (2022) 6 SCC 206 :

"15. That being the position, the view taken by the Commissioner had been a possible view of the matter in the given set of facts and circumstances; and there was no reason for the High Court to interfere with the

.

same, particularly when the case did not involve any

substantial question of law within the meaning of Section 30 of Employees Compensation Act, 1933."

23. Therefore, this Court cannot interfere with the

findings of fact recorded by the learned Commissioner, when it

was based upon the evidence and was a possible view on the

material placed before him. Hence, the submission that there was

no relationship of employer and employee between the

respondents and Jagat Ram is not acceptable and the learned

Commissioner had rightly held that the accident had occurred

during employment. Hence, these substantial questions of laws

are answered accordingly.

Substantial question No.3.

24. The learned Commissioner held that the monthly

wages have to be taken as ₹4000/- as per explanation (II) of Sub