Rajasthan High Court
United India Insurance Co Ltd vs Ramavtar @ Ram Prasad And Ors on 6 May, 2022
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 4100/2009
United India Insurance Co Ltd. Through Authorised Signatory,
Regional Office, Sahara Chambers, Tonk Road, Jaipur.
----Appellant/Non-claimant No.2
Versus
1. Ramavtar @ Ram Prasad son of Mewaram, resident of
Dhandholi, Saat Khejara, Post Santhali, Tehsil Deoli, District
Tonk.
----respondent/claimant
2. Gopal son of Mohan Lal Rana, resident of Dhandholi, Post
Santhali, Tehsil Deoli, District Tonk.
----Respondent/non claimant No.1
For Appellant(s) : None present
For Respondent(s) : Mr. Sandeep Mathur
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Judgment
06/05/2022
This appeal has been filed by the appellant-Insurance
Company against the judgment dated 02.06.2009 passed by the
Court of Commissioner Workmens Compensation, Tonk (for short
'the Commissioner') in case No.WCC NF/37/2005 by which the
claim petition filed by the claimant-respondent has been allowed
and the appellant-Insurance Company has been directed to pay
compensation of Rs.1,30,950/-.
In this matter, arguments were already heard on 12.01.2022
and on that date, counsel for the parties sought time to submit
brief submissions along with the relevant judgments, in support of
their contentions.
(2 of 5) [CMA-4100/2009]
The main objection of the appellant-Insurance Company in
this case is that the claimant sustained 18% disability but the
Commissioner has committed illegality in accepting the loss of
earning capacity of the claimant to be 28% without there being
any medical evidence in support thereof.
In support of his contentions, the appellant-Insurance
Company has placed reliance on a judgment of National
Insurance Company Ltd. Vs. Mubasir Ahmed & Ors.
Reported in AIR2007 SC 1208.
The other objection raised by the appellant-Insurance
Company is that the claim petition filed by the claimant-
respondent was not maintainable for want of notice under Section
10 of the Workmen Compensation Act, 1923, as no notice under
Section 10 of the Act of 1923 was given to the Insurance
Company before filing the claim petition, hence, the Commissioner
has committed an illegality in considering this objection raised by
the Insurance Company.
On the basis of above objections, the Insurance Company
has made prayer for quashing and setting aside the impugned
judgment and award dated 02.06.2009 passed by the
Commissioner.
Per contra, learned counsel for the respondent-claimant
opposed the objections raised by the Insurance Company and
submitted that from bare perusal of the disability certificate (Ex.3)
of the injured-claimant, it is clear that he has sustained various
grievous injuries including shortening of lower limb and restriction
of 15% of hip and knee movement and suffering from pain while
cross-sitting, squating and walking, which had seriously affected in
functioning of the injured. Learned counsel further submitted that
(3 of 5) [CMA-4100/2009]
because of the permanent disability, the working capacity of the
injured has been affected. So, the Commissioner has not
committed any illegality in determining the loss of earning
capacity of the claimant to the extent of 28%. Learned counsel for
the claimant has placed reliance on the judgment passed by this
Court in the case of National Insurance Company Ltd. Vs.
Rakesh Kumar Saini in SB Civil Misc. Appeal No.1534/2002
decided on 21.07.2011 and in the case of Reliance General
Insurance Company Ltd. Vs. Magan Singh & anr. in SB Civil
Misc. Appeal No.4912/2009 decided on 18.05.2011 wherein
the co-ordinate Benches of this Court have considered this aspect
and treated the disability at the higher side looking to the job of
the injured-claimant.
Learned counsel for the claimant-respondent further
submitted that finding of fact cannot be reappreciated while
deciding the appeal against award and in view of the judgment of
Hon'ble Supreme Court in the case of "North East Karnatka
Transport Corporation Vs. Smt. Sujatha" reported in 2019
(11) SCC 514, the appeal filed against the award passed by the
learned Commissioner is not maintainable if any substantial
question of law is not involved.
Lastly, learned counsel argued that finding of facts have been
recorded by the Commissioner and no substantial question of law
is involved in this matter and therefore, he prayed for rejection of
the appeal.
Heard counsel for the parties and perused the record.
Bare perusal of the permanent disability certificate of the
injured-claimant (Ex.3) clearly indicates that though the
permanent disability of the injured has been mentioned as 18%
(4 of 5) [CMA-4100/2009]
only and at the same time, it has been mentioned in the certificate
that because of the injuries sustained in the accident, the lower
limb of the injured has been shortened and there is restriction of
15% of hip and knee movement and because of these injuries,
claimant is getting pain while cross sitting, squating and walking.
The injured was working as a Khalasi at the time of accident
and the aforesaid injuries has affected his working. This Court
while deciding the case of Rakesh Kumar Saini (supra) has
taken a note of the fact that, while passing the judgment and
award, the Commissioner assessed the permanent disability to the
extent of 100% instead of 42.67% due to the injuries sustained
in both limbs and the order passed by the Commissioner was
upheld by the co-ordinate Bench of this Court.
Similar view has been taken by this Court in the case of
Magan Singh (supra). The ratio decided by the co-ordinate
Benches of this Court in the above cases, squarely applies in the
instant case.
So far as, the objection raised by counsel for the Insurance
Company with regard to notice under Section 10 of the Act of
1923 is concerned, a detailed finding has been recorded by the
Commissioner and in view of the judgment passed by Hon'ble
Supreme Court in the case of Smt. Sujatha (supra), this appeal
is not maintainable on the finding of fact recorded by the
Commissioner.
Similarly, the Hon'ble Apex Court in the case of "Golla
Rajanna Etc. vs. The Divisional Manager And Anr." reported
in 2017(1) SCC 45 has held that under the Scheme of the Act,
the Workmen's Compensation Commissioner is the last authority
on facts and the High Court has very limited jurisdiction and it has
(5 of 5) [CMA-4100/2009]
no jurisdiction to reappreciate the evidence recorded on its
findings.
Thus, in view of the discussions made hereinabove, there is
no force in this appeal.
Hence, the same is dismissed.
No order as to cost.
Stay application and all pending application(s) stand
dismissed.
Record be sent back to the concerned court forthwith.
(ANOOP KUMAR DHAND),J
HEENA GANDHI /2
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