Rajasthan High Court

Tata A I G Gen Insurance Co Ltd vs Nanki And Ors on 8 May, 2024

Author: Narendra Singh Dhaddha

Bench: Narendra Singh Dhaddha

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

             S.B. Civil Miscellaneous Appeal No. 969/2018
1.       Nanki W/o Late Shri Ramphol, R/o Ashok Nagar Bada
         Naya Gao, Tehsil Hindoli, Distt Bundi Rajasthan
2.       Durgashankar S/o Late Shri Ramphool, R/o Ashok Nagar
         Bada Naya Gao, Tehsil Hindoli, Distt Bundi Rajasthan
3.       Kamlesh S/o Late Shri Ramphol, R/o Ashok Nagar Bada
         Naya Gao, Tehsil Hindoli, Distt Bundi Rajasthan
4.       Pokhar S/o Sewaji, R/o Ashok Nagar Bada Naya Gao,
         Tehsil Hindoli, Distt Bundi Rajasthan
5.       Smt. Kasturi W/o Pokhar, R/o Ashok Nagar Bada Naya
         Gao, Tehsil Hindoli, Distt Bundi Rajasthan
                                                                   ----Appellants
                                    Versus
1.       Islamuddin, S/o Mohammad Salim, R/o Amirganj, Bajar
         Noro Miya Ka Pul, Tonk Raj Owner Vehicle No. Rj-14-2G-
         6418
2.       Tata Aig General Insurance Co. Ltd., 104 Brij Anukampa,
         C-Scheme Jaipur Rajinsurer Vehicle No. Rj-14-2G-6418
                                                                 ----Respondents

Connected With S.B. Civil Miscellaneous Appeal No. 5834/2017 Tata Aig General Insurance Company Limited, Having Its Registered Office At Peninsula Business Park, 15Th Floor, Tower- A, G K Marg, Opp.-Peninsula Corporate Park, Lower Parel, Mumbai-400013 Having Its Regional Office At 2Nd Floor, 205- 208, Green House, Ashok Marg, C-Scheme, Jaipur-302001 Through Its Constituent Attorney.

----Appellant Versus

1. Nanki W/o Late Ramphool, R/o Ashok Nagar, Bada Naya Village, Teh. Hindoli, Distt. Bundi

2. Durga Shankar S/o Late Ramphool, R/o Ashok Nagar, Bada Naya Village, Teh. Hindoli, Distt. Bundi

3. Kamlesh D/o Late Ramphool, R/o Ashok Nagar, Bada Naya Village, Teh. Hindoli, Distt. Bundi

4. Pokhar S/o Sewaaji, R/o Ashok Nagar, Bada Naya Village,

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Teh. Hindoli, Distt. Bundi

5. Smt. Kasturi W/o Pokhar, R/o Ashok Nagar, Bada Naya Village, Teh. Hindoli, Distt. Bundi

6. Islamuddin S/o Mohammad Salil, R/o Amirganj Bazar Nori, Miya Ka Pool, Tonk, Raj. Owner Vehicle Truck No. Rj- 14-2G-6418

----Respondents

For Appellant(s) : Mr. Deepak Khandelwal, Adv. for claimants For Respondent(s) : Mr. C S Rathore, Adv. with Mr. Rajdeep Rathore, Adv. for Insurance Company

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Judgment

DATE OF JUDGMENT 08/05/2024

Application under section 5 of the Limitation Act is allowed

for the reasons mentioned therein and delay of 129 days in filing

the appeal is condoned.

These Civil Misc. Appeals have arisen out of the judgment

dated 01.08.2017 passed by learned Workmen Compensation

Commissioner, Tonk (for short 'learned Commissioner') in claim

case No.ECC/F/27/2015 titled as "Nanki & Ors. Vs. Islamuddin &

Anr.", whereby the Commissioner has awarded a sum of

Rs.5,29,489/- alongwith interest @ 12% per annum from the date

of accident in favour of the claimants as compensation.

CMA No. 969/2018 has been filed by the claimants seeking

enhancement of compensation awarded by learned Commissioner

whereas, CMA No. 5834/2017 has been filed by the Insurance

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Company challenging the judgment dated 01.08.2017 passed by

the learned Commissioner on the various grounds.

CMA No. 969/2018 -Learned counsel for the claimants submits

that the deceased was earning Rs. 8,000/- per month but the

learned Commissioner has wrongly assessed the income of the

deceased as Rs.5,750/- per month. So, income of the claimant

may be considered at Rs.8,000/- per month. He further submits

that the Commissioner has committed an error while not awarding

any amount under the head of future prospects. So, judgment of

the learned Commissioner may be modified accordingly.

CMA No. 5834/2017-Learned counsel for the Insurance

Company submits that learned Commissioner has wrongly allowed

the claim petition filed by the claimants. Learned counsel for the

Insurance Company also submits that there was no employer-

employee relationship between the deceased and owner of the

vehicle. Learned counsel for the Insurance Company further

submits that no notice under Section 10 of the Workmen

Compensation Act, 1923 was served upon the Insurance

Company. Therefore, the finding of the learned Commissioner is

per se illegal and unreasonable. So, appeal be allowed and

judgment passed by learned Commissioner be set aside.

Heard counsel for the parties and perused the impugned

judgment including the documents available on the record.

In the considered opinion of this Court, the findings given by

the learned Commissioner are based on sound appreciation of

evidence and the same are not liable to be disturbed by this

Court.

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In the opinion of this Court also, the learned Commissioner is

the last authority on facts as it has been held by the Hon'ble

Supreme Court in the case of Golla Rajanna Etc. (supra):

"8. Section 30 of the Act provides for appeal to the High Court. To the extent, the provision reads as follows;

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 lumpsum 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;[(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 workman, 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 three hundred rupees (Emphasis supplied)

10. Under the scheme of the Act, the workmen's Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial question of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-

appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made

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by the High Court is not within the competence of the High Court under Section 30 of the Act.

Similar view has been expressed by the Hon'ble Apex Court

in the case of North East Karnataka Transport Corporation (supra):

"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependants of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.

10. The aforementioned questions are essentially the questions of fact and, therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.

11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.

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 he heard both on facts and law. The appellate

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

In "M/s Krishna Weaving Mills, Ajmer Vs. Smt. Chandra

Bhaga Devi wide of Mool Chand & Anr.", reported in 1985(1) WLN

455, this Court while dealing with Workmen's Compensation Act

has laid down law that unless there is as question of public

importance and there is no final interpretation available while the

substantial question of law is arising, the appeal under the

Workmen's Compensation Act cannot been entertained. Relevant

portion of the judgment reads as follows:-

"8. Moreover, under S. 30 of the Workmen Compensation Act only substantial question of law can be agitated. In the present case, I am convinced that there is no substantial question of law involved.

9. The question of public importance and question on which no final interpretation is available are known as substantial question of law. Even if this definition is further extended, it will have to bear in mind that there is vast difference between the question of law and substantial question of law. It is only when the question of law is not well settled and it is of importance, it would become a substantial questions of law."

It is the settled position of law that limited jurisdiction has

been given to the High Court confined to the substantial question

of law only and the High Court cannot venture and re-appreciate

the evidence and finding of fact recorded on the evidence led by

both the parties.

This Court find no good ground to call for any interference on

any of the factual findings. None of the factual findings are found

to be either perverse or arbitrary or based on no evidence or

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against any provision of law. This Court accordingly upholds these

findings.

Since the appeals are not qualifying to have a substantial