Court No. - 2
Case :- FIRST APPEAL FROM ORDER No. - 601 of 1992 Appellant :- E.S.I.C.
Respondent :- Ram Dularey Counsel for Appellant :- Rajesh Tiwari
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel for the appellant and perused the judgment and order impugned.
2. This Appeal, at the behest of Employees State Insurance Corporation, challenges the judgment and order dated 22.10.1991 passed by Judge E.I. Court, Kanpur in Appeal No.94 of 1991 allowing the appeal of the respondent-Ram Dularey.
3. Brief facts are that the Medical Board issued a certificate awarding nil loss of earning capacity to the injured-claimant. The injured suffered employment injuries in his right middle finger. The employment injury was not in dispute. What is in dispute is the grant of compensation considering his employment injury to 5%. Can this be considered to be bad and perverse finding?
4. The appeal under Workmen Compensation Act/Employees State Insurance Act has to be viewed very seriously in view of the judgment in Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC). The finding of fact is that the injured was an employee who had sustained employment injury and was incapacitated to the tune of 5%.
5. I am supported in my view by the decision of the Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 wherein it has been held that the Court has held as under:
"15. Such appeal is then heard on the question of admission with a view to find out as to whether it involves any substantial question of law or not. Whether the appeal involves a substantial question of law or not depends upon the facts of each case and needs an examination by the High Court. If the substantial question of law arises, the High Court would admit the appeal for final hearing on merit else would dismiss in limini with reasons that it does not involve any substantial question/s of law.
16. Now coming to the facts of this case, we find that the appeal before the High Court did not involve any substantial question of law on the material questions set out above. In other words, in our view, the Commissioner decided all the material questions arising in the case properly on the basis of evidence adduced by the parties and rightly determined the compensation payable to the respondent. It was, therefore, rightly affirmed by the High Court on facts.
17. In this view of the matter, the findings being concurrent findings of fact of the two courts below are binding on this Court. Even otherwise, we find no good ground to call for any interference on any of the factual findings. None of the factual findings are found to be either perverse or arbitrary or based on no evidence or against any provision of law. We accordingly uphold these findings."
6. This Court, recently in F.A.F.O. 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 has followed the decision in Golla Rajana (Supra) and has held as follows:
"The grounds urged before this Court are in the realm of finding of facts and not a question of law. As far as question of law is concerned, the aforesaid judgment in Golla Rajanna Etc. Etc. Versus Divisional Manager and another (supra) in paragraph 8 holds as follows "the Workman 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."
7. In view of the above, the appeal fails and is dismissed. The show called questions of law framed by the appellant are answered against it. In fact the substantial questions of law raised are the questions of fact.
8. Interim relief, if any, shall stand vacated forthwith Order Date :- 23.12.2021 DKS