Sahira Bano and Others vs Bawa Ram and Co.

R.P. Sethi, J.—Aggrieved by the order of Commissioner under the Workmen's Compensation Act (hereinafter referred to as 'the

Commissioner') rejecting application of the petitioners for the grant of compensation on account of the death of Jan Mohammad Khan, allegedly

while under the employment of respondent company, this appeal has been preferred with a prayer for setting aside the impugned order and for

grant of the compensation under law.

According to the averments made in the petition, it was alleged that the deceased Jan Mohammad was employed by the respondent as labourer

who met with an accident on 1.3.1980 while in the employment of the respondent. It was stated that the monthly wages of the deceased worker

were Rs. 500/- and that the petitioners were entitled to the relief of the amount claimed by them. After taking the evidence of the parties, the

Commissioner came to the conclusion that the petitioners were not entitled to the grant of compensation as, according to him, accident had

occurred not during the employment of the respondent and that the petitioners were entitled to the grant of claim under the provisions of Motor

Vehicles Act from the Tribunal constituted thereunder.

Ms. Kour, learned Counsel appearing for the respondent, has raised a preliminary objection that as no substantial question of law within the

meaning of Section 30 of the Workmen's Compensation Act (hereinafter referred to as 'the Act') was involved, the appeal was liable to be

dismissed. She has referred to Rajinder Singh v. Malki Ram 1978 ACJ 222 Vijay Ram v. Janak Raj 1981 ACJ 84 Madan Mohan Verma v.

Mohan Lal 1983 ACJ 231 (Allahabad); and General Dealers Ltd. v. Ballavnarain Badrinarain AIR 1955 NUC 2861 in support of her contention.

In Rajinder Singh v. Malki Ram 1978 ACJ 222 the claim petition preferred by the heirs of the deceased workman was accepted and this Court

refused to interfere with the finding of fact holding, ""misappreciation of evidence or insufficiency of evidence is not a question of law though the

absence of evidence is"". In Madan Mohan Verma v. Mohan Lal 1983 ACJ 231 a Division Bench of the Allahabad High Court rejected the plea of

the employer, holding that the findings of the Commissioner were based upon evidence led in the case which were not vitiated by any error of law

or of jurisdiction.

In Vijay Rams. Janak Raj 1981 ACJ 84 the appeal of the employer against the award of the Commissioner under the Act was dismissed with

modification after holding that no substantial question of law within the meaning of Section 30 of the Act was involved in the case.

In General Dealers Ltd. v. Ballavnarain Badrinarain AIR 1955 NUC 2861 a Division Bench of the Calcutta High Court went through the evidence

led in the case to find out as to whether the same had been properly appreciated to determine so to whether any question of law was involved in

the case or not. It was reiterated that though mis-appreciation of evidence or insufficiency of evidence is not a question of law, yet, absence of the

evidence is.

It is a settled proposition of law that the Commissioner's award can be interfered with only if a substantial question of law is involved in appeal.

The phrase 'substantial question of law' has to be given a wider construction than what is attributable to it u/s 109, Civil Procedure Code. The

question of law is involved when there may be some doubt or difference of opinion. It was held by a Division Bench of Bombay High Court in

Halemabi Vs. Ardeshir B. Cursetji, that the question that whether the facts found by the Commissioner constitute reasonable cause for failure of

the injured workman to give notice of the accident within the statutory period is a question of law open to review by the High Court u/s 30 of the

Act. Misappreciation of evidence or insufficiency of evidence is not a question of law as already noticed.

The underlying purpose of the Act is to make provision for a workman who is disabled from earning by work. The Act has to be broadly and

liberally construed in order to effectuate its evident intent and purpose in its application to the claims of the workmen held entitled to its benefits

under the Act. In 1923, Act No. VIII of 1923 was enacted with the object of providing statutory compensation in presence of the growing

complicity of industry in the country with the increasing use of the machinery and consequent danger to workmen along with the comparative

poverty of the workmen which warranted that they should be protected as far as possible from hardships arising from the accidents. The original

Act was amended by Act No. V of 1929 and later on by Act No. VIII of 1959. The Act appears to have been legislated with the object to ensure

social justice to the workmen while keeping in view the progress of the industry with the intervention of modem machinery intended for the national

growth of the economy. The Act appears to have been legislated with the purpose of regulating the award of compensation to the injured workman

or the heirs of the deceased workman. The provisions of the Act have to be interpreted in a manner which advances the object of the legislation

contemplated in the statement of objects and reasons and attempt should be made to avoid putting interpretations which result in defeating the aims

and objects of the legislation.

In AIR 1954 Bom it was held that the findings of the Commissioner must be based on evidence and if the finding is contrary to the evidence then

the High Court is not bound by those findings.

u/s 30(1)(a) of the Act an order disallowing a claim in full or in part for lump sum is appealable notwithstanding the restriction of proviso

regarding the involvement of a substantial question of law. Rejection of the claim in full shall impliedly amount to the involvement of a substantial

question of law requiring to be probed and determined in appeal u/s 30 of the Act. If any other interpretation is put to the provisions of Section

30(1)(a) of the Act, the purport and object of the Act, as discussed hereinabove, would be defeated. The award of compensation may not be a

ground for filing an appeal unless a substantial question of law is involved and condition of third proviso to Section 30 of the Act is complied with,

but the same test cannot be allowed to be complied when claim of a workman is rejected in full or in part for lump sum as has been done in this

case.

Keeping in view the aims and objects and scheme of the Act it has to be held that no appeal shall lie to this Court from the orders mentioned in

Clauses (a) to (e) of Sub-section (1) of Section 30 except in a case where the claim is disallowed in full as it goes to the very root of the case and

touches the object sought to be achieved by making a provision in favour of the workmen otherwise entitled to the grant of compensation under the

Act, I am fortified in my view by a. judgment of the Nagpur High Court in Bhagwati v. G.I.P. Railway AIR 1939 Nag 106 wherein the application

for grant of compensation filed by the heirs of the deceased workman had been rejected by the Commissioner and in appeal the argument of the

employer regarding the maintainability of the appeal allegedly for non-involvement of a substantial question of law was rejected by holding:

It is urged for the respondent that the Commissioner's order is not appealable, reference is made to 16 NLJ 63. All that is laid down there is that

u/s 30 of the Act no appeal lies unless a substantial question of law involves. Since the claim has been disallowed in full, the claimant is entitled to

appeal u/s 30(1)(a) and it cannot be disputed that the appeal involves a substantial question of law... .

There is no merit in the preliminary objection raised which is rejected.

On merits it is established that Jan Mohammad had been employed by the respondent at the time when he died. Nawab Khan, PW, has stated

that the deceased was employed by the non-applicant as night watchman and was paid salary of Rs. 250/- for being night watchman and Rs. 250/-

for the day watchman. It is further stated that the deceased workman died on 1.3.1980 at 8 a.m. while in the employment of the respondent and at

that time he was discharging the duties as directed by the employer. Tek Bahadur, PW, has also supported the case of the appellants and stated

that the deceased had gone to bring material of the respondent on bicycle when he met with the accident and was earning Rs. 500/- per month as

his salary. Milkhi Ram and Mohinder Paul, the witnesses produced by the respondent, have not denied the fact that the deceased workman had

been employed by the respondent. The witnesses of the respondent have, however, stated that the accident took place at a time when the

deceased was not discharging his duties as on the day of occurrence it was a holiday on account of Holi. It is stated by Milkhi Ram, the witness of

the respondent, that ""the deceased had started his service with the non-applicant prior to his joining the service"". Mohinder Paul, who is a cashier

of the respondent, stated that Jan Mohammad was first engaged as a labourer and thereafter as night chowkidar. He has further stated that ""the

deceased was getting Rs. 250/- per month as salary"". He also placed on record the vouchers bearing signatures of the deceased workman. After

discussing the evidence the Commissioner held that ""from the evidence led by the parties and the arguments of learned Counsel it was established

that the deceased Jan Mohammad's wages have been disbursed prior to the accident at the rate of Rs. 250/- per month and not at the rate of Rs.

500/- per month."" It is further held that ""deceased Jan Mohammad was actually working as a night watchman for the respondent"". After coming to

the conclusion that the deceased was employed by the respondent, the Commissioner was not justified in holding that the appellants were not

entitled to the grant of relief. There was no justification for the Commissioner to hold that the accident had not occurred out of and in the course of

the employment of the respondent In Narayan Laxman Mulerkhi v. Post Master General, Bangalore 1968 ACJ 73 wherein case of workman

employed for erection of telephone lines along the railway track was knocked down by the incoming passenger train and killed while returning with

bucket of water collected from a stationary engine, the question was raised whether the accident arose out of and in the course of the employment

and the Commissioner addressed himself to the only question whether one condition of the workman's employment was to bring water for cleaning

insulator. A Division Bench of the Mysore High Court held that the Commissioner's decision was based on wrong understanding of law which

amounted to error of law and held substantial to call in question the decision of the Commissioner. Rejecting the plea of the employer the Court

held:

It is indisputable that it was not necessary for the appellant to produce evidence that it was one of the conditions of Malhari's employment that he

should bring water for cleaning the insulators if he was asked to do so by those who were supervising his work. If water was required for cleaning

the insulators and Malhari was a mazdoor working on the erection of the telephone lines, it was hardly necessary for the appellant to prove that

there was an express condition of the employment that he should bring water for that purpose. Nothing is plainer than that it was Malhari's duty as

a mazdoor to obey all directions which had any association with or were necessary for the work for the completion of which he had been

employed, and, one such is obviously a direction to bring water on being asked to do so for cleaning the insulators which had to be fixed on the

telephone lines.

The phrase 'during the course of employment' does not in any way mean the discharge of the duties assigned strictly in accordance with the terms

of the agreement but includes within its ambit the purpose of duties connected with, relating to or arising out of the employment but not being

inconsistent with the specific directions of the employer.

In the instant case it has been proved on facts that the deceased workman was discharging his duties during the course of his employment when

he met with an accident and died. However, I find force in the argument of learned Counsel for the respondent that the appellants have not been in

a position to prove that the monthly income of the deceased workman was Rs. 500/-. In the presence of documentary evidence it has been held

that the monthly income of the deceased workman at the time of accident was Rs. 250/- only.

As the occurrence has taken place in 1980 and the case is governed by the unamended provisions of the Act, heirs of the deceased workman are

entitled to the grant of a lump sum amount of Rs. 8,000/- as compensation u/s 4-A read with Schedule IV of the Act.

The appeal is accordingly accepted and the order impugned is set aside. The appellants are held entitled to the claim of Rs. 8,000/- payable to

them on account of the death of Jan Mohammad. The amount of claim shall be paid within three months along with costs of the litigation.

Before parting with the judgment I would like to record my appreciation for Mr. Harnam Singh, Advocate, who, at my request, assisted me in

deciding the case of the heirs of the deceased workman and laboured hard in preparing the case on their behalf even without being formally

engaged as a Counsel in the case.