Oriental Insurance Co Ltd @APPELLANT@Hash Suresh Yogi & Ors

Appellant- Insurance Company has preferred this misc. appeal against the impugned judgment dated 06.07.2009 passed by learned Commissioner

Workmen’s Compensation, Jaipur District- II, Jaipur in Case No. WCCNF 191/2008 (Suresh Yogi vs. Shankar Sewak Yogi & Anr.) whereby

learned Commissioner partly allowed the application of respondent-non-claimant and awarded Rs. 2,15,040/- with interest at the rate of 12% per

annum from the date of accident i.e. 29.02.2008 and also imposed penalty of Rs. 1,00,000/- on respondent No. 2- non-claimant- owner.

The brief facts of the case are that respondent No. 1 submitted a claim petition under the provisions of the Workmen’s Compensation Act stating

therein that on 29.02.08 while he was employed as Khalasi on truck No. RJ-14-GA-9639 sustained injuries when the said truck rammed into the rear

end of a trolla. At the time of accident he was 20 years old and was getting Rs. 4000/- per month wages, accordingly he claimed a compensation of

Rs. 4,00,000/- with interest.

Non-claimant owner did not appear despite service of the notice, therefore proceedings were held ex-parte against him.

Insurance company in its reply pleaded that notice U/s 10 of the W.C. Act has not been given and the owner and Insurance Company of the trolla

which was involved in the accident have not been made the party and also pleaded that the accident was not occurred during the course of the

employment, therefore the claim petition may be dismissed.

After hearing, learned Commissioner partly allowed the claim petition and awarded Rs. 2,15,040/- with interest @ 12% p.a. from the date of accident

i.e. 29.02.2008.

Aggrieved and dissatisfied by the impugned judgment dated 06.07.2009, this appeal is preferred by the appellant-Insurance Company before this

Court.

Mr. Amarnath Pareek learned counsel appearing on behalf of appellant- Insurance Company submits that as per permanent disability certificate

(Exhibit- P-10), respondent No. 1-nonclaimant sustained only 19% disablement while learned Commissioner considered loss of income as 40%,

therefore the impugned order is not sustainable, therefore same may be quashed and set aside and the appeal may be allowed.

Learned counsel relied on Oriental Insurance Company Limited vs. Mohd. Nasir And Anr. reported in (2009) 6 SCC 280.

Per contra Mr. Rakesh Bhargava learned counsel appearing on behalf of respondent No.1- claimant supported the impugned judgment and submitted

that since respondent No.-1 was employed as cleaner by respondent No. 2 and after sustaining the alleged injury on his left leg, he cannot work

properly as a cleaner, therefore his income is effected more than 40%.

He submits that in the era of unemployment it is very difficult to get employment by a person who has met with an accident and has sustained

grievous injuries having permanent disablement.

He further submits that the loss of injury and the loss of income is the matter of finding of facts and learned Commissioner is the last authority

regarding finding of facts. Accordingly, no substantial question is involved in this misc. appeal.

He further submits that the appeal was admitted without framing substantial question of law and as per Section 30 of the Employee Compensation

Act, 1923 without substantial question of law, appeal cannot be allowed as the Act is socially, beneficiary legislation.

Learned counsel relied on Golla Rajanna Etc. Etc. vs. The Divisional Manager And Another, Etc. Etc. reported in 2017 (1) SCC 45.

No-one appeared on behalf of respondent No.- 2 even after service.

I have considered the submissions made at Bar.

The appeal of appellant was admitted by the co-ordinate Bench of this Court vide order dated 24.08.2009 without framing substantial question of law.

Section 30 of the Act provides for appeals to the High Court.

To the extent, the provision reads as follow :-

 “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 sumwhether 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- monthlypayment;

(c) an order providing for the distribution of compensationamong 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 theamount of an indemnity under the provisions of subsection (2) of section 12; or

(e) an order refusing to register a memorandum ofagreement 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:â€​

In the case in hand, respondent No.-1-non- claimant Suresh Yogi submitted his affidavit in support of his claim in examination in chief before the

Workmen Compensation Commissioner, who was cross- examined by the counsel for the appellant- Insurance Company.

In his affidavit, he clearly stated that “eq> ls igys dh Hkkafr dqâ€kyrkiwoZd deZdkj [kyklh dk dk;Z ugh gksrk gSA mDr nq?kZVuk ls eq>s LFkk;h

v;ksX;rk dkfjr gks x;h gSAâ€​

Even after cross- examination, his statement cannot be treated as suspicious. No evidence was produced by the respondents in rebuttal, therefore the

Workmen’s Compensation Commissioner, having regard to the evidence, returned a finding on the nature of injury, nature of work of the

respondent No. 1claimant and the percentage of disability which is purely a question of fact. There is no case for the Insurance Company that the

finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be

assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a

qualified medical practitioner, as defined under the Act. Thus, the Workmen’s Compensation Commissioner has passed the order based on the

certificate of disability issued by the doctor and which has been duly proved before the Workmen’s Compensation Commissioner.

Considering the disablement certificate, nature of work and after considering the statement of respondent No. 1- non-claimant and documents

submitted by him, Workmen’s Compensation Commissioner has assessed the loss of income as 40% and passed the impugned order.

In the matter of Oriental Insurance Company Limited vs. Mohd. Nasir And Anr. (supra) Hon’ble Supreme Court observed that :-

“Accident occurred in this case by reason of the use of a vehicle. Both the claimants were casual workmen. Whereas in the former case the

disability was assessed at 40%, the loss of earning capacity was taken to be 80%. We do not know on what basis, the same was arrived at.

According to the doctor, the claimant suffered injury. The doctor having found the disability to the extent of 40% could not have determined the loss of

earning capacity to 80%. Therefore, the judgment and order of the High Court as well as the Commissioner to that extent cannot be sustained. It is set

aside accordingly. Appeal is allowed and the amount of compensation may be calculated on the said basis.â€​ which is not disputed, from the perusal of

impugned judgment, it reveals that learned Commissioner observed that :-

“fdlh deZdkj ds dkfjr pksVksa ,oa mlls mRiUu vk; {kerk dh deh dk deZdkj {kfriwfrZ vf/kfu;e ds lanHkZ esa fdl rjg fu/kkZj.k fd;k tkos ekuuh;

loksZPp U;k;ky; dh 4 Judges Bench }kjk fuf.kZr okn izrki ukjk;.k flag nso cuke Jhfuokl ¼1976 ,vkbZvkj 222½ dk voyksdu fd;k x;k] ftlesa ekuuh;

loksZPp U;k;ky; }kjk ,d Jfed dk ,d gkFk dksguh ds mij ls dV tkus ds mijkUr deZdkj {kfriwfrZ vf/kfu;e ds f’kM~;wy I ikVZ II ds dze la[;k 3 esa 70

izfrâ€kr vk; {kerk dh deh gksuk ekuk tkuk mYysf[kr gksus ds mijkUr Hkh Jfed ds fu;kstu laca/kh dk;Z ds lanHkZ esa 100 izfr’kr vk; {kerk dh

deh dkfjr gksuk vk;qDr }kjk ekus tkus dks mfpr Bgjk;k x;k gSA vkyksP; izdj.k esa izn’kZ&ih 10 LFkkbZ viaxrk izek.k i= esa fpfdRld us izkFkhZ

dh tkap mijkUr izkFkhZ dks nq?kZVuk esa dkfjr pksVksa ds ifj.kkeLo:i Hkfo"" ;esa “Injured have restricted movement at Lt. Ankle joint. Injured

have pain & difficulty in walking & sitting. Injured have difficulty in hard working.â€vkfn dfBukbZ;ka gksuk izekf.kr fd;k gSA bl izdkj fpfdRld }kjk dh

xbZ mDr fVIi.kh ls Li""V gSa fd izkFkhZ dks Hkfo""; esa [kyklh dk dk;Z djus esa dfBukbZ gksxhA D;ksafd ,d [kyklh dks okgu esa lkeku

yknus&mrkjus] okgu esa j[ks lkeku dks frjiky ls gksrs gSaA ftuds fy, vR;f/kd 'kkjhfjd rkdr ,oa ekufld ,dkxzrk dh vko’;drk gksrh gSA izkFkhZ ds dkfjr mDr pksVksa ,oa muls mlds mRiUu vk;

{kerk dh deh ds lanHkZ esa deZdkj {kfriwfrZ vf/kfu;e] 1923 ds f’kM~;wy I ikVZ II dk voyksdu fd;k x;k] ftlds dze la[;k 19 ij ,d iSj ds tka?k ds e/;

ls ?kqVus ds uhps rd ,EiqVs’ku gksus ij 60 izfrâ€kr rFkk dze la[;k 22 o 23 ij ,d iSj ds iats ls ,EiqVsâ€ku gksus ij 50 izfrâ€kr vk; vTkZu {kerk deh

dkfjr gksuk fu/kkZfjr fd;k x;k gSA vkyksP; izdj.k esa gkykafd izkFkhZ ds cka;s iSj dk ,EiqVs’ku ugha gqvk gSA fdUrq i=koyh ij miyC/k

nLrkostksa ds voyksdu ls Li""V gS fd nq?kZVuk mijkUr izkFkhZ ds cka;s iSj ds iats ds ewoesaV esa deh dkfjr gks x;h gSA vr% izn’kZ&ih 10

LFkkbZ viaxrk izek.k&i= esa fpfdRld }kjk dh xbZ izkFkhZ dks Hkfo""; esa gksus okyh dfBukbZ;ksa laca/kh fVIi.kh o mldk izkFkhZ ds ,d [kyklh ds :i

esa dk;Z{kerk ,oa mlls mlds gqbZ vk; vtZu {kerk dh deh rFkk mijksDr U;kf;d uthj ds e/;utj eSa deZdkj {kfriwfrZ vf/kfu;e] 1923 dh /kkjk 19 ds rgr

izkFkhZ dh vk; vtZu {kerk esa 40 izfr’kr dh deh dkfjr gksuk ekurk gwaAâ€​

therefore, learned Commissioner has assigned the reason that why he is treating the loss of income as 40%, which is finding of fact and based on the

larger Bench judgment of Hon’ble

Supreme Court, therefore the case law cited by counsel for the appellant- Insurance Company (Oriental Insurance Company Limited vs. Mohd. Nasir

And Anr.) doesn’t help the appellant.

In the matter of Golla Rajanna Etc. Etc. vs. The Divisional

Manager And Another, Etc. Etc. reported (supra) Hon’ble Supreme

Court observed that :-

“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.â€​

Since, the arguments advanced by learned counsel for the appellant relates to finding of facts and as per Golla Rajanna’s case, the Commissioner

is the last authority. Accordingly, no substantial question of law arises in this misc. Appeal, therefore the same is dismissed and the impugned judgment

is affirmed.