Rajinder Singh vs Malki Ram

G.M. Mir, J.—This appeal against the order of the Commissioner under Workmen's Compensation Act dated 17th April, 1975 arises out

of the following facts:

On an application by Respondent Malki Ram for grant of compensation under the Workmen's Compensation Act, 1923 (Act VIII of 23)

(hereinafter referred to as 'the Act' for short) in his favour on the grounds that he was an employee of the Appellant in his oil extraction machine

and while working on the machine on 14-2-1973 he met with an accident when he was directed by the Appellant to take out oil-cakes from the

Kohlu. It was further alleged that while he was taking out the oil-cakes from the Kohlu, his hand was struck by Lath as a result of which the

accident occurred and his right hand got injured severely. He further stated that his monthly earnings were Rs. 200/- and on account of the

accident, he was not likely to earn anything and that he had his wife and old parents dependent on him and therefore prayed for grant of adequate

compensation under the Act. The Appellant on appearing before the Commissioner denied that the Respondent was working under him or that he

was his employer. He denied that any accident took place on the machine on the relevant date. He further alleged that if at all any accident had

taken place in which the Respondent received injuries, it was because the Respondent had come to the machine to steal some oil-cakes and was at

the relevant time under the influence of alcohol. He denied that the Respondent was being paid Rs. 200/- per month by him. He alleged that the

machine belonged to his father-in-law and he had nothing to do with it and that the machine was not run under his supervision and was not under

his control. The parties were put to evidence. The Respondent produced Dr. V.K. Pachnanda Orthopaedic Surgeon, Mangu, Beli Ram, Kanshi

Ram Bachitru and the Respondent examined S. Chet Singh, Behari Lal, Sansar Chand, Joginder Lal, Kirpal Singh clerk and Raghunath Dass. Both

parties also were examined as their own witnesses. On the appreciation of evidence, the learned Commissioner came to the following conclusion:

(i) That the Respondent was in the employment of the Appellant;

(ii) That the Appellant was running and supervising the work of the machine ;

(iii) That the accident in which the Respondent's right hand was severely injured occurred out of and during the course of his employment ; and

(iv) That the Respondent was earning Rs. 200/- per month at the relevant time.

The Commissioner also directed that the Respondent was entitled to an award for compensation amounting to Rs. 2,940.00 and also to the costs

of Rs. 150/-. Aggrieved by this, the present appeal has been filed by the Appellant.

In the memorandum of appeal, the grounds taken were that the learned Commissioner's order under appeal was against law and facts of the

case. It was also alleged that the Commissioner has failed to properly appreciate the evidence produced by the parties. It has been alleged that the

Appellant was not the owner of the mill in which the Respondent alleges to be an employee. The relationship of employer and employee between

the parties was denied. It was further alleged that the amount of compensation awarded by the impugned order was exhorbitant.

The first question to be tackled in this appeal was whether under the circumstances and on the facts of the case, an appeal would lie u/s 30 of

the Act, Section 30 of the Act enumerates from (a) to (e) the cases in which an appeal was permissible to be filed in the High Court against the

order of the Commissioner. Sub-clause (a) provides that an appeal would lie against 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 lumpsum amount. The first proviso to

Section 30 however, provides that no appeal shall lie against any order unless a substantial question of law was involved. Obviously therefore the

appeal would lie awarding compensation only on the ground that a substantial question of law was involved. The question, therefore, was as to

what was the substantial question of law and whether any such question was involved in the present appeal. To me it appears that no question of

law much less a substantial question of law is involved in the present appeal. All the questions determined by the Commissioner were questions of

fact and involve no question of law. The Commissioner's decision is likely to be interfered with only when a substantial question of law is involved

in the appeal. Misappreciation of evidence or insufficiency of evidence is not a question of law though the absence of evidence is. If the

Commissioner refused to believe any evidence, it cannot be contended that he was bound as a matter of law to believe that evidence. It was held

in 1972 K. L.T. 132 that misappreciation of evidence vitiating the order under appeal, even if true, cannot be brought within the scope of proviso

to Section 30 of the Act nor can be exaggerated into a substantial question of law. Findings of the Commissioner in the instant case which are

based on pure appreciation of evidence led by both the parties before him, can't be challenged in the appeal in the High Court. Had the matter

been decided in complete absence of evidence, a question of law would have arisen and the findings on that basis could have been challenged in

appeal before the High Court. May be the High Court might arrive by itself at a different conclusion on the appreciation of evidence led by the

parties but that was no ground to interfere with the findings of the Commissioner. In Parakkandiyil Kutti and Another Vs. Kakkat Kunhammad and

Others, it has been laid down that the High Court will not interfere with the findings of fact arrived at by the Commissioner unless it is so opposed

to the evidence or so perverse as to be brought into the category of law. In M.C. Shanthamallappa v. M.D. Chandappa Shetty AIR 1958 Mys.

116 the finding of the Commissioner that the accident arose out of and in the course of the deceased's employment was held to be prima facie a

finding of fact. Similarly in Jawala Prosad Agarwalla v. Bhola Routh AIR 1963 Ass 7 the question as to whether the person claiming compensation

was employed under the Appellant or some other person was held to be a question of fact. In another case reported in K. Ramaswami Mudaliar

Vs. Poongavanam, the question as to whether a person is a workman or not has been held to be a question of fact and further held that there can

be no appeal on this point. In Parakkandiyil Kutti and Another Vs. Kakkat Kunhammad and Others, the question as to what were the wages

being earned by the person claiming the compensation was also held to be a question of fact and it was further held that the finding on the quantum

of wages cannot be disturbed in appeal.

In the instant case the Commissioner on the basis of evidence recorded by him has rejected all the pleas raised before him by the Appellant and

has held that the Respondent had received injuries during the course and out of the employment of the Appellant. He has held the Appellant to be

the real employer of the workman. His findings on all these matters as well as on the quantum of earnings of the Respondent were with regard to

questions of fact and no question of law being involved such findings cannot be disturbed in appeal. All these matters were decided by the

Commissioner on the basis of evidence led by the parties. The appreciation of evidence by the Commissioner was not a question of law and

therefore, cannot be disturbed in appeal. As the requirement of law for the maintenance of appeal as laid down in the first proviso to Section 30 of

the Act were not fulfilled and as no substantial question of law was involved in the present appeal, the appeal was not maintainable and has to be

thrown out on this ground alone. The main ground taken in the memorandum of appeal against the order of the Commissioner was that the learned

Commissioner had not rightly and properly appreciated the evidence and therefore it was sought that the findings of the Commissioner be set aside.

But it is well settled now that the mis-appreciation of evidence by the lower court or the Tribunal was only a question of fact and therefore no

appeal would lie.

On the merits also the appeal was not suitable. In the impugned order the learned Commissioner has narrated and discussed thoroughly the

evidence led by both the parties. He has found that the witnesses examined by the Appellant were not trustworthy and therefore, unreliable and has

rejected their evidence in toto. On the other hand the evidence led by the Respondent has found favour with him and the basis and on the

appreciation of this evidence he has come to the conclusion as referred above. On going through the impugned order and the evidence recorded

by the learned Commissioner, the only conclusion that could be arrived at by a reasonable person was the one to which the learned Commissioner

has arrived at. The appreciation of evidence was in no way improper or against the norms laid down for this purpose. The Commissioner has

disbelieved the star witness of the Appellant, Sansar Chand, on the ground that Sansar Chand who claimed to be the mistry of the Appellant was

running a shop also according to his own showing in the village nearby but had deposed that he was always on the machine from 8 in the morning

upto 5 in the evening. It was quite reasonable for the Commissioner to have held that this witness could not be believed because he under the

circumstances could not possibly be present on the machine between 8 a.m. and 5 p.m. which was ordinarily the time for the machine to be made

use of. The other witnesses of the Appellant have not any where in their depositions stated that the Respondent was not working on the machine as

an employee of the Appellant. What they have said in nutshell was that they have not seen the Respondent on the machine. The witnesses have

further stated that the machine belonged to Raghunath Dass, the father-in-law of the Appellant. They have also however, said that the Appellant

was managing the agricultural land belonging to his father-in law and that he was the son-in-law and Khana Damad of Raghunath Dass. According

to the witnesses of the Appellant, Raghunath Dass was an old man and therefore, he had entrusted the management of his agricultural land to the

Appellant. Raghunath Dass has also admitted this but strangely enough the Appellant has denied that he was the Khana Damad of Raghunath

Dass. The explanation for this deviation from an established fact by the Appellant was given by the learned Counsel for the Appellant during the

course of hearing when he said that the Appellant was an innocent poor villager and did not know what was the meaning of the word Khana

Damad. This explanation however could not be accepted as the Appellant himself has stated that he had passed F.A. examination. That shows that

he was quite a literate person and must be credited to know the meaning of Khana Damad. If his witnesses who appear to be illiterate persons

from the village could know the meaning of Khana Damad, the reason for his not knowing the same given by the learned Counsel for the Appellant

was untenable. Obviously it appears that the Appellant was trying to hide all connections with Raghunath Dass who according to him was the

owner of the machine so that he may not be even remotely considered to be the Manager or the agent of Raghunath Dass for running the machine.

From a perusal of the statements of the witnesses produced by the Appellant, it was obvious that he was managing and supervising the agricultural

land owned by his father-in-law. Even if the machine in fact did belong to Raghunath Dass there was nothing to show that the same was not

supervised and controlled and managed by the Appellant on behalf of Raghunath Dass. In fact the relationship between the Appellant and

Raghunath Dass and his position as the supervisor of his agricultural land indicated the machine was also being run, supervised and controlled by

the Appellant as the agent of its owner Raghunath Dass. The evidence led by the Respondent was quite convincing and has rightly been relied upon

and believed by the learned Commissioner. The evidence led by the Respondent was clearly to the effect that even if the Appellant was not himself

the owner of the machine, he however was the Managing Agent running and supervising the machine. Section 2(i)(e) of the Act gives the definition

of the employer. It is an inclusive definition and according to it the Managing Agent of an owner was also an employer. The expression Managing

Agent itself has been defined in Section 2(i)(f) of the Act as follows : 'Managing Agent' mean any person appointed or acting as the representative

of another person for the purpose of carrying on such other person's trade or business but does not include an individual manager subordinate to

an employer. The finding of the learned Commissioner that the Appellant was acting as the representative of his father-in-law for the purpose of

carrying on his business on the machine was based on the evidence led by the Respondent and also by the Appellant himself. The submission of the

learned Counsel for the Appellant that the witnesses produced by the Respondent belonged to his own caste and therefore were out to support

him in any case cannot be entertained as persons belonging to one and the same caste would not necessarily support each other even at the cost of

speaking and deposing falsely in the court. Had it been so, it would not have been possible for the Appellant to get the support to his case from

some of his own witnesses who were admittedly Harijans and belonged to the same caste to which the Respondent belonged. If the argument of

the learned Counsel for the Appellant has any force in it the Harijan witnesses would not have supported him.

Dr. V.K. Pachnanda who has been produced by the Respondent has stated that the hand of the Respondent was not in a workable condition

and the disability due to the injury sustained by him was 30%.

On going through the whole evidence led by the parties it was obvious that the learned Commissioner has rightly weighed and appreciated the

same. There was no reason to interfere with his findings of fact and as such I find no reason to disturb the findings arrived at by him.

Though in the memo of appeal it was stated that the compensation awarded was exhorbitant the learned Counsel for the Appellant however did

not take up this point during the argument. On going through this matter, I however, feel that the compensation awarded was in no way exhorbitant

and that the Commissioner has only awarded that much of compensation which could have been legally awarded under the provisions of the Act.

In these circumstances the appeal is dismissed and the order for award of compensation passed by the learned Commissioner is maintainable. The

amount of compensation already deposited with the Commissioner may now be disbursed to the Respondent in accordance with law. Under the

peculiar circumstances of the case, no order as to costs is passed.