Rajasthan High Court - Jodhpur
National Insurance Co. Ltd vs Tek Chand And Ors. (2024:Rj-Jd:37317) on 9 September, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:37317]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 1209/2016
National Insurance Company Limited, Bapu Bazar, Udaipur
through Deputy Manager, National Insurance Company Limited,
Jodhpur Regional office: 3-4 Floor, Sun Tower, Main Pal Road,
Jodhpur (Raj.)
----Appellant
Versus
1. Tek Chand S/o Shri Jagannath Rawat, Resident of Nauva
Bada, P.S. Dabok, Tehsil- Mawali, District- Udaipur.
2. Smt. Narayani W/o Shri Tek Chand Rawat, Resident of
Nauva Bada, P.S. Dabok, Tehsil- Mawali, District- Udaipur.
3. Smt. Khemani W/o late Shri Mangilal Rawat, Resident of
Nauva Bada, P.S. Dabok, Tehsil- Mawali, District- Udaipur.
4. Devilal S/o Shri Chen Ram Dangi, Resident of Mangari
Vikarani, Tehsil Mawali, District- Udaipur.
----Respondents
For Appellant(s) : Mr. Sanjeev Johari, Sr. Advocate with
Mr. Subhankar Johari.
For Respondent(s) : Mr. Amit Saran.
Mr. Digvijay Singh.
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
09/09/2024
1. The appellant/non-claimant No.2 United India Insurance
Company Ltd. has preferred the instant misc. appeal under
Section 30 of the Workmen's Compensation Act 1923 ('Act pf
1923') challenging the validity of judgment and award dated
26.02.2016 passed by learned Workmen Compensation
Commissioner, Udaipur in Claim Case No.WC/F-57/2011, whereby
the Commissioner has awarded compensation to the tune of
Rs.3,65,005/- in favour of claimants alongwith interest @ 12% per
[2024:RJ-JD:37317] (2 of 13) [CMA-1209/2016]
annum from the date of filing claim petition i.e. 13.07.2011 and
imposed penalty of Rs.73,001/- on the non-claimant No.1/owner.
2. Before considering the appeal on merits, it is necessary to
look into the scope of interference by the High Court in the appeal
under Section 30 of the Act of 1923. It is no more res integra that
such appeal to the High Court, against the order of the
Commissioner, lie only against the specific orders set out in Clause
(a) to (e) of Section 30 of the Act of 1923 with a further rider
contained in Proviso-I of Section 30 that the appeal must involve
substantial question(s) of law. The position of law is well settled
that the appeal provided under Section 30 of the Act of 1923 to
the High Court, against the order of Commissioner is not like a
regular first appeal akin to the first appeal filed under Section 96
of the Code of Civil Procedure, 1908. The regular civil first appeal
under Section 96 of CPC can be heard both on facts and law
whereas the scope of appellate court to decide the appeal under
Section 30 of the Act of 1923 is confined only to examine the
substantial question(s) of law arising in the case. It is therefore,
clear that the High Court is first required to find out as to whether
the present appeal involves any substantial question(s) of law or
not? If the substantial question(s) of law arises, the appeal may
be admitted for final hearing on merits else the same is liable to
be dismissed with reasons that it does not involve any substantial
question(s) of law.
3. Now coming to the appeal at hand, the Insurance Company
has suggested following questions of law for consideration by this
Court:-
[2024:RJ-JD:37317] (3 of 13) [CMA-1209/2016]
1. Whether the Insurance Premium taken for one Employee,
could be extended to any so called 'Karmkar', as while
insuring a Tractor, one Employee can always be its Driver
only, because on Tractor there cannot be any other person
allowed to sit anywhere including its Mudguard?
2. Whether the provisions of W.C. Act are at all applicable in
the present case where the employment of deceased could
not be substantiated by the claimants, and thus the Claim
Petition was not even maintainable?
3. Whether the non-impleadment of the Insured, particularly
when any transfer of ownership of the Vehicle was not
brought on record before the appellant-Insurer, could at all
make the Claim petition maintainable?
4. Whether in the case, in which the subject case is not at all
covered in the Insurance Policy, any liability could at all be
fixed on the appellant-Insurer?
5. Whether the learned Commissioner below has concluded
correct within the provisions of W.C. Act 1923 while deciding
and concluding that the appellant insurer only is liable to pay
the entire compensation?
4. In order to examine as to whether the aforesaid questions
are essentially questions of fact or can be considered as
substantial question(s) of law, it is necessary to consider the facts
of case in brief and the findings recorded by the Commissioner.
5. This is a case where claimants filed claim petition under
Section 3/4 of the Act of 1923 for compensation on account of
death of the bread earner of their family namely, Shri Mangilal
Rawat (deceased herein) who died on 13.06.2011 while working
as labourer under the employment of non-claimant
No.1/respondent No.4 herein. In the claim petition, the claimants
alleged that deceased Mangilal Rawat was working under the
employment and direction of non-claimant No.1 on his tractor
bearing registration number RJ-09-R-4789 for last six months.
The non-claimant No.1 was paying Rs.4500/- as monthly salary
and Rs.50/- allowance per day to deceased Mangilal Rawat, thus
he was earning Rs.6000/- per month. At the time of accident, the
[2024:RJ-JD:37317] (4 of 13) [CMA-1209/2016]
deceased was thirty years of age. On the fateful day i.e. on
13.06.2011, while the deceased was working as labourer on the
tractor, the said tractor was plied by the owner-cum-driver i.e.
non-claimant No.1. The said tractor was plied by the non-claimant
rashly and negligently and on account of applying the break, the
tractor turned turtle as a result of which deceased Mangilal fell
down and sustained grievous injuries. He was immediately taken
to hospital in 108 Ambulance to Maharana Bhupal Govt. Hospital,
Udaipur, however, he was declared dead by the doctors. The
deceased died on the spot. Deceased was in employment of the
non-claimant No.1 as full time employee and he was employed as
labourer on the tractor. Despite apprising about the incident, the
non-claimants did not deposit the compensation in the court,
therefore, the claimants filed the claim petition claiming
compensation to tune of Rs.10,00,000/- along with interest and
penalty from the non-claimants.
6. After registration of the claim, notices were issued to the
non-claimants. On behalf of non-claimant No.1 i.e. employer,
reply to claim petition was filed on 06.06.2012 while denying the
fact that the deceased was every appointed by him as labourer.
The non-claimant No.1 denied that the deceased was ever paid
monthly salary and allowance as claimed in the claim petition. The
non-claimant No.1 further pleaded that deceased might have died
in some accident, however, a false claim has been foisted against
him and in connivance with the police and other persons charge
sheet was filed against him in the court with a view to claim
compensation. It was further alleged by non-claimant No.1 that
the insurance company was apprised of the incident alongwith
[2024:RJ-JD:37317] (5 of 13) [CMA-1209/2016]
requisite details and, therefore, the insurance company was liable
to pay the compensation and penalty as well.
7. On behalf of non-claimant No.2 i.e. appellant insurance
company reply to claim petition was filed on 10.01.2012 while
denying the facts alleged in the claim petition. It was alleged that
on the date of accident, the deceased was not in the employment
of non-claimant No.1 and that no accident had taken place on
13.06.2011. The non-claimant No.2 admitted that the vehicle was
insured and the premium qua the driver was charged and no
premium was charged by it for the labourer, therefore, no liability
could be fastened upon the insurance company. An objection with
regard to driver of the vehicle not having valid and effective
licence was taken, inasmuch as the driver of the tractor who was
having LMV licence, cannot ply a transport vehicle like tractor. It
was thus stated by the insurance company that on account of
violation of conditions of the policy, it was not liable to pay
compensation. It was further stated by the appellant/non-claimant
No.2 that requisite information and documents with respect to
accident were not made available by the non-claimant No.1. It
was thus prayed that the claim petition be rejected.
8. On the basis of pleadings of the parties, the Commissioner
proceeded to frame five issues including relief. In support of their
claim, claimant No.1, Tekchand filed his affidavit, upon which he
was cross-examined by the non-claimants. During the course of
trial, the claimants exhibited documents viz. investigation
conducted by the police, postmortem report and other documents.
On behalf of non-claimant No.2, affidavit of one Sh. Harish Kumar
(DW.2), Branch Manager was filed, and he was cross-examined by
[2024:RJ-JD:37317] (6 of 13) [CMA-1209/2016]
non-claimant No.1. In the cross-examination, the said witness
DW.2 has admitted that in Ex.NA/1, a sum of Rs.25/- was charged
as premium towards labourer.
9. The Commissioner thereafter heard the arguments of the
parties and after considering the material placed before, it vide
judgment and award impugned dated 26.02.2016 proceeded to
partly allow the claim petition and awarded compensation of
Rs.3,65,005/- along with interest @ 12% per annum and the
liability to pay the compensation was fastened upon the appellant
insurance company. The Commissioner imposed penalty of
Rs.73,001/- upon the non-claimant No.1/employer.
10. Aggrieved by judgment and award dated 26.02.2016, the
appellant/non-claimant No.2 has preferred the instant misc.
appeal.
11. The instant misc. appeal was admitted by a Coordinate
Bench of this Court vide order dated 23.05.2016. While admitting
the appeal, the appellant Insurance Company was directed to
deposit 70% along with interest of the amount of compensation
awarded by the Commissioner Workmen Compensation, including
amount already deposited within a period of one month and
recovery of the remaining amount qua the appellant was stayed.
The amount deposited was directed to be disbursed to the
claimant in terms of the award.
12. Learned counsel for the appellant submits that the
Commissioner has erred in entertaining the claim petition under
the provisions of the Act of 2023. He further submits that
claimants have to prove that there was casual connection between
the accident and employment. Learned counsel for the appellant
[2024:RJ-JD:37317] (7 of 13) [CMA-1209/2016]
submits that at the time of accident, the deceased was not doing
any job of the employer. He further submits that according to
Section 3 of the Act of 1923 death must have occurred during the
course of employment, however, in the instant case, the claimants
failed to lead any evidence to prove that the deceased was in the
employment of the employer and met with the accident while he
was in the employment of the employer. Learned counsel for the
appellant, therefore, argued that there was no casual connection
between the employment and death/incident.
14. Learned counsel for the appellant submits that no premium
was charged for more than one employee i.e. driver of the vehicle.
He further submits that for a vehicle like tractor, no additional
premium could be charged, as nobody is allowed to sit on the
mudguard of the tractor. Learned counsel for the appellant further
submits that engagement of labourer for discharging a particular
work, it cannot be said that the deceased was in the employment
of the employer as to as invoke the provisions of the Act of 1923.
15. Learned counsel for the appellant/non-claimant No.2 further
submits that the insured i.e. Sh. Bhurilal Menaria was not
impleaded as party/non-claimant in the claim petition. Learned
counsel for the appellant submits that the vehicle in question was
insured from 30.11.2010 to 29.11.2011 in the name of said Sh.
Bhurilal Menaria and no information whatsoever in this regard was
given to the appellant insurance about transfer of the ownership
of the tractor in the name of Devilal (non-claimant No.1), which
otherwise was mandatory on the part of non-claimant No.1.
[2024:RJ-JD:37317] (8 of 13) [CMA-1209/2016]
16. Learned counsel for the appellant further questioned the
interest awarded @ 12% per annum w.e.f. 13.07.2011 and
levying of such higher interest on the appellant is absolutely
contrary to the contract between the insurer and the insured.
Learned counsel for the appellant thus prayed that the instant
appeal deserves to be allowed and the impugned judgment and
award bet set aside.
15. On the other hand, learned counsel for the respondents
submits that all the questions are related to question of facts and
may not be treated as substantial question(s) of law.
16. Heard counsel for both parties and perused the material
available on record.
17. The substantial question of law (1), referred to supra, is
whether the Insurance Premium taken for one Employee, could be
extended to any so called 'Karmkar', as while insuring a Tractor,
one Employee can always be its Driver only, because on Tractor
there cannot be any other person allowed to sit anywhere
including its Mudguard. This Court finds that the Commissioner
has considered the testimony of witness produced by the non-
claimant No.2/insurer i.e. DW.2 Sh. Harish Kumar, who in his
cross-examination specifically stated that, " izn'kZ ,u&,&1 esa , ls ch
Hkkx es :i;k 25@& vfrfjDr fizeh;e pktZ dj ,d deZdkj dh fjLd doj dj
j[kh gSA". In view of this specific admission, the issue sought to be
raised by the appellant/non-claimant No.2 that no extra premium
was charged covering the labourer, and thus the insurance
company is not liable to pay compensation, has rightly been
negated by the Commissioner. So far as question No.2 is
concerned, this Court finds that the in the claim petition, the
[2024:RJ-JD:37317] (9 of 13) [CMA-1209/2016]
claimants have contended that on the date of incident i.e.
13.06.2011, the deceased while working as labourer on the tractor
of non-claimant No.1 fell down from the tractor on account of rash
and negligent driving and applying the breaks suddenly and owing
to the injuries he died. The non-claimant No.1, in the reply to
claim petition, though has denied the relationship of employee-
employer and the factum of accident, however, the Commissioner
has observed that from the perusal of the investigation carried out
by the police in FIR No.198/2011, it was amply proved that the
deceased was in the employment of the non-claimant No.1 on
13.06.2011 and he died during the course of employment. This
Court also finds that the Commissioner has considered the
documents pertaining to the investigation carried out by the police
(Ex.1 and 2) and the postmortem report (Ex.4) and has rightly
concluded that the accident occurred during the course of
employment on 13.06.2011. This Court finds that after
considering the evidence produced before the Commissioner, the
Commissioner has rightly held that the incident occurred during
the course of employment and there was casual connection
between the accident and the employment.
18. Insofar as question of law No.3 is concerned, this Court finds
that the registered owner of the tractor was Devilal (non-claimant
No.1) and merely because the insurance company was not
apprised about the transfer of the ownership of the tractor, the
same cannot be a valid reason to disown the liability of paying the
compensation. Further, non-impleadment of the earlier owner of
the tractor, cannot be a reason enough to exonerate the insurance
company from its liability. Insofar as question of law No.4 is
[2024:RJ-JD:37317] (10 of 13) [CMA-1209/2016]
concerned, this Court finds that the Commissioner has considered
the evidence led by the respective parties minutely, inasmuch as
the objections raised by the appellant/non-claimant No.2 have
been dealt with by the Commissioner. The question No.5 sought to
be raised that whether the insurance company can be held liable
to pay the compensation is concerned, this Court finds that a sum
of Rs.25/- was charged additionally covering the risk of labourer
and, therefore, the Commissioner has not committed any error in
saddling the liability of paying interest on the compensation.
19. The Employee's Compensation Act is a beneficial legislation
aimed at alleviating the sufferings of the workman, who suffers
injuries resulting disability or the sufferings of the legal heirs of
the workman who dies in such accident. It is settled law that
unless the findings of fact recorded by the Commissioner, are not
shown to be perverse, the same are not required to be interfered
with in the appeal. Any erroneous finding or any error of law
cannot be the basis for entertaining an appeal under Section 30 of
the Act of 1923 unless such erroneous findings do not give rise to
substantial question of law. As far as findings recorded by the
Commissioner are based on the material available on record and
such findings cannot be held to be perverse by any stretch of
imagination. In the case of Krishna Weaving Mills Vs. Chandra
Bhaga Devi : 1985(1) WLN 455], a Coordinate Bench of this Court
while deciding the appeal under Section 30 of Workman
Compensation Act, 1973 has drawn a distinction between the
question of law and substantial question of law. It was held that
the question of public importance and question of which no final
interpretation is available are known as substantial question of
[2024:RJ-JD:37317] (11 of 13) [CMA-1209/2016]
law. If a question of law is not well settled and the same is of
public importance, it may be treated as a substantial question of
law. The view has been followed in subsequent judgment
delivered by this Court in case of Khuma vs. Shyam Lal :
MANU/RH/1287/2019. The scope of interference under Section 30
of the Act of 1923, on the ground of perversity in the findings of
Commissioner, was also considered by the High Court of Gauhati
in the case of Oriental Insurance Co. Ltd. Vs. Gita Rani Roy :
MANU/GH/0608/2015 decided on 16.09.2015.
20. Thus, after elaborate discussion on facts and proposition of
law, the questions do not fall within the scope of substantial
question of law. In this backdrop, this question of law may also
not be treated as substantial question of law.
21. The Hon'ble Supreme Court, in case of Golla Rajanna Etc. v.
The Divisional Manager & Anr. : 2017 (1) SCC 45 considered the
scope of interference by the High Court in the findings of the
Commissioner Workman Compensation, under Section 30 of the
Act of 1923 and held as under:-
"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 questions 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 by the High Court is not within
the competence of the High Court under Section 30 of the
Act."
22. The Hon'ble Supreme Court in case of North East Karnataka
Road Transport Corporation Versus Sujatha : 2019 (11) SCC 514]
has again held in clear and explicit words that the question as to
whether the employee met with an accident, whether the accident
[2024:RJ-JD:37317] (12 of 13) [CMA-1209/2016]
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. 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.
23. None of the questions as raised and suggested by the
counsel for Insurance Company fall within the ambit and purview
of substantial question of law. All these questions are essentially
the question of facts and require, re-appreciation of the pleadings
and evidence. As far as factual issues are concerned, it is clear
proposition of law that the jurisdiction to appreciate the pleadings
and evidence on record and to deliver findings thereupon lies with
the Commissioner. The finding of facts as recorded by the
Commissioner are treated as final as the Commissioner is the last
authority to record findings on facts. The High Court, while
exercising its powers and jurisdiction as appellate court under
[2024:RJ-JD:37317] (13 of 13) [CMA-1209/2016]
Section 30 of Act of 1923 may not and should not re-appreciate
the evidence and pleadings to substitute the factual findings of the
Commissioner, by its own view. Unless and until the findings
recorded by the Commissioner, do not raise any substantial
question of law, the same are not required to be interfered with.
24. The upshot of discussion made hereinabove, is that the
present appeal does not qualify the requirement of involving any
substantial question of law, which is mandatory requirement under
Section 30 of the Act of 1923 to entertain the appeal. Accordingly,
the appeal has no force and the same is hereby dismissed. The
interim order dated 23.05.2016 is vacated. No order as to costs.
(DR. NUPUR BHATI),J
143-DJ/-
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