Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 2363 of 2019 Appellant :- National Insurance Co. Ltd. Respondent :- Smt. Ahilya Devi And Another Counsel for Appellant :- S.K. Mehrotra Counsel for Respondent :- Syed Mushfiq Ali
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. By way of this appeal the National Insurance Co. Ltd. (hereinafter referred to as 'appellant') has felt aggrieved by the order dated 16.3.1999 passed by Workmen's Compensation Commissioner/ Dy. Labour Commissioner, Jhansi Region, Jhansi.
2. Facts of the present case are that claimant - respondents filed a claim case before the Workman Compensation Commissioner, Jhansi contending that the deceased Virendra Kumar was employed as cleaner on Truck No. UP-93-B/2486 and he was being paid Rs.50/- per day towards salary and Rs.20/- per day towards fooding expenses. On 2.1.1996 when the said truck, which was being driven by its driver, Suraj Prasad was going towards Jhansi at 7:00 a.m. when it reached near Bharat Traders Petrol Pump, Shivaji Nagar, just to give side to other truck which was coming from the opposite direction, the truck turned towards its left side by the driver and at the same time a boy, who was sitting near a bicycle in front of the tea shop, was knocked down by the truck and on that on account of the said accident, the driver of the truck stopped the truck and the driver and the cleaner of the truck got down on the road. When the cleaner was standing on the road, the mob pelted stones on him causing severe injures resulting in the death of the cleaner on the spot.
3. The Workman Commissioner held that the cleaner died due to employment injuries.
4. It is contended by the Insurance Company that the deceased was not employed as cleaner and it is further submitted that he died out of injures sustained by him by pelting of stones when he was not on the truck and was standing on the road near the petrol pump. The learned counsel has heavily relied on the written statement filed by them.
5. The owner of the vehicle has accepted that the deceased was a cleaner on his truck and has accepted the accident.
6. While deciding the issue no.1, the Commissioner held in favour of the claimants and held that she was totally dependant on deceased Virender Kumar Pathak who was 17 years of age. The issue no.2 has also been held in favour of the claimants. The Insurance Company has not been able to prove that the accident did not occur due to the employment of the deceased. The finding of fact is that accident occurred with a minor . The driver and the cleaner (deceased) alighted from the Truck when people of public pelted stones at them (driver and the cleaner).
7. In that view of the matter, the Tribunal held that the accident occurred and due to employment injuries, the deceased died. It has established that there was a employer and employee relationship between the deceased and respondent no.1 (owner of the truck) . The deceased was being paid Rs.2100/- per month as wages which is a finding of fact based on testimony of the heirs of the deceased, namely, mother who was dependant on him. The vehicle was insured with the appellant and it has not been proved that there was any breach of policy condition.
8. The Apex Court recently in Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) and this High Court in FAFO 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 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."
9. The Apex Court in North East Karnataka Road Transport Corporation Vs. Smt. Sujatha, AIR 2018 SC 5593 has held that unless perversity is pointed out, the first appellate Court should not easily interfere with the findings of facts and percentage of disability is a question of fact. No perversity has been pointed out, hence no interference is called far.
10. In view of the above, this appeal sans merit and is dismissed. Interim relief, if any, shall stand vacated. This takes this Court to the oral submission of the claimant's Advocate that as per Section 4A(a) of the Workmen's Compensation Act, 1923, the rate of interest should have been 12% as the accident occurred on 2.1.1996 and the amendment was inserted in 1995, hence the insurance company be directed to pay 12% rate of interest which is statutorily prescribed under the act. In light of the statutory provision, the Tribunal's award granting 6% rate of interest is modified.
11. The appeal preferred by the Insurance Company is rejected. The oral cross objection filed by claimants is partly allowed. The amount of compensation awarded be recalculated at 12% rate of interest and be deposited within 12 weeks from today.
12. This Court is thankful to both the counsels to see that this very old matter of 1999 is disposed off.
Order Date :- 22.8.2019 Mukesh