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Judgment
M.M. Das, J.—The Insurer is the appellant in this appeal u/s 30 of the Workmen''s Compensation Act, 1923 (hereinafter referred to as the "Act"). The compensation amount awarded by the Commissioner for Workmen''s Compensation-cum-Deputy Labour Commissioner, Central Division, Cuttack in W.C. Case No. 35-D/2001 by Judgment, dated 26.2.2003 has been deposited by the insurer, before the said Commissioner, as per the proviso to Section 30 of the Act.
The case of the workman in the aforementioned W.C. case was that, the deceased Laxmi Narayan Dubey, in course of employment under respondent No. 4 as a driver of the truck bearing registration No. OR-04-6755, met with an accident when he parked the above truck near Chandikhol on N.H. 5 and was going to answer the call of nature. The offending vehicle was a truck which came in a high speed and ran over the deceased Laxmi Narayan Dubey. As a result, the deceased succumbed to the injury, on the spot. Postmortem was conducted on the body of the deceased at Jaipur District Hospital and P.S. Case No. 170 dated 26.11.2000 was registered in Barchana P.S. The respondents 1 to 3, as legal heirs and dependants of the deceased, filed the above mentioned W.C. Case before the Commissioner for Workmen''s Compensation, inter alia, pleading that the deceased was getting a monthly salary, of Rs. 3000/- excluding fooding allowance of Rs. 20/- per day and was 46 years of age at the time of accident. Respondent No. 4, who was the owner of the truck and the employer of the deceased, appeared in the Court below and admitted the fact regarding the accident, employment and death of the deceased in course of employment. The appellant was the insurer of the above truck in which the deceased was employed as a driver.
Mr. A. K. Mohanty, learned counsel for the appellant submitted that the above appeal involves a substantial question of law as envisaged u/s 30 of the Act and the said question of law is that the Commissioner for Workmen''s Compensation has committed an error of record in recording a finding that the deceased was aged 46 years at the time of death. Mr. Mohanty filed the certified copy of the deposition pf P.W. 1, the wife of the deceased, before this Court and on perusal of the said deposition it transpires that P.W. 1 was asked in Cross-examination regarding the age of her daughter, the year of her daughter''s marriage, the year of her daughter''s birth and her age at the time of her marriage with the deceased, and her answer clearly shows on simple calculation that the age of the deceased at the time of accident was 49 years.
Shri Samantray, learned Advocate for the respondent- claimants, submitted that the above question does not amount to a substantial question of law as envisaged u/s 30 of the Act, since the same relates to appreciation of evidence. He relied upon some decided cases in support of his plea that the above question raised by the appellant is a question of fact and not a question of law. However, the said decisions cited by Shri Samantray were in reference to Section 100, CPC and interpretation of the clause "substantial question of law" was with reference to Section 100, C.P.C. and not Section 30 of the Act.
Court is unable to accept the submission that the words "substantial question of law" in Section 30(1) of the Workmen''s compensation Act must be given the same meaning as in the Code of Civil Procedure. Section 100 of that Code makes provision for appeals from decrees and final orders of a Court which is a final appellate Court. Section 30 of the Act, on the other hand, makes provision for an appeal to this Court from a Tribunal of first instance and if the learned counsel''s submission be accepted, it follows that this Court will have no jurisdiction in a case in which the Commission had arrived at an obviously wrong conclusion on misconstruction of material evidence available on record.
In my opinion, therefore, the phrase "substantial question of law" as used in the proviso to Section 30(1) of the Act must be given a wider construction than what is to be attributed to it in Section 100 of the CPC and that the phrase should be construed to cover a case such as the present one, in which the Commissioner has clearly misdirected himself by committing an error in calculating the age of the deceased.
Since the determination of the age of the deceased in a case under the Act is vital in order to arrive at the quantum of compensation to be awarded in the case, an erroneous conclusion based on misconstruction of material evidence available on record would amount to a "substantial question of law" as contemplated u/s 30 of the Act.
On proper reading of the evidence available on record it would be seen that according to the wife of the deceased the age of the deceased at the time of death was 49 years, but as mentioned in the post-mortem report his age was 46 years. It is a common knowledge and judicial notice can be taken of the fact that the age mentioned in a medical document is based on the information of the person who gets a patient admitted in the hospital and in case of post-mortem the age mentioned in the post-mortem report is based on the information given by the attendant of the body who takes it for conducting post-mortem in a hospital. I, therefore, hold that no authenticity can be attached to the age mentioned in the post-mortem report when more reliable evidence, i.e. the statement of the wife of the deceased, is available on record, to come to the conclusion that the age of the deceased in the present case, at the time of death was 49 years. Thus the age of the deceased is to be taken as 49 years at the time of accident.
No argument is advanced by either of the parties challenging the monthly income of the deceased as found by the learned Commissioner for Workmen''s Compensation. Accepting, therefore, the income of the deceased to be Rs. 2000/- per month and applying the provisions of the Act and the table given in Schedule IV to the facts of the present case, half of the monthly income of the deceased is to be multiplied to the factor 156.47. Thus the compensation payable to the claimants would be Rs. 1,56,470.00.
I, therefore, reduce the amount of compensation granted by the Commissioner for Workmen''s Compensation to Rs. 1,56,470.00. The Commissioner for Workmen''s Compensation -cum- Deputy Labour Commissioner, Central Division, Cuttack is directed to pay the above amount of Rs. 1,56,470.00. out of the amount already deposited in his Court along with the accrued interest, if any, to the claimant-respondents 1 to 3 and refund the balance amount to the appellant.
The appeal is allowed in-part.