Court No. - 25
Case :- FIRST APPEAL FROM ORDER No. - 528 of 2004
Appellant :- Oriental Insurance Co Ltd
Respondent :- Subhash And Another
Counsel for Appellant :- Ashok Kr. Srivastava,Vipul Kumar
Counsel for Respondent :- S.D. Ojha
Hon'ble Ram Krishna Gautam,J.
1. Seen the report of office. The receipt of filing of Vakalatnama has been submitted by Sri V.C. Dixit. Office to be informed accordingly for tracing the Vakalatnama and keeping it on record.
2. Heard learned counsel for both sides.
3. This appeal under Section 30 of the Workmen's Compensation Act has been filed by Oriental Insurance Co. Ltd. against the award dated 26.12.2003, passed by Workmen's Compensation Commissioner / Deputy Labour Commissioner, Azamgarh Region, Azamgarh in Case No. Azam. WCA - 50 of 2003, on the ground that accident had occurred on 05.02.2001 at about 7.00 A.M. when the Jeep, being driven by claimant / respondent No. 1, was dashed by an on-coming Truck No.USS/7193 on a straight stretch of road under full visibility of light, meaning thereby that the aforesaid claimant / respondent no. 1 was himself guilty of composite negligence in causing the aforesaid accident and under above pretext he got his claim petition No. 67 of 2001 dismissed by way of not pressing it on 14.08.2003. This was a collusive petition amongst driver and owner of offending vehicle, but the Commissioner failed to appreciate the above fact. The citations pressed and agreed in the impugned judgment were with different facts. There were substantial questions of law, which reads as under:-
i) Whether in view of the evidence on record that the injuries of claimant / respondent no. 1 have not resulted in loss of any limb or its member and the disability certificate on record certified only 40% disability, has the learned Commissioner erred in not assessing the compensation payable as per Section 4(1)(c-ii) of Workmen's Compensation Act?
ii) Whether the learned Commissioner has erred in ignoring the evidence on record which suggested that the case of claimant / respondent No. 1 was not covered under the definition of "Total Disablement" as defined in Section 2(1) (1) of the Workmen's Compensation Act, rather it was covered under sub-clause (g) of the aforesaid section?
iii) Whether in view of the fact that despite orders of the learned Commissioner dated 31.10.2003, the opposite party / respondent No. 2 had not produced any Account books though he was owner of a Petrol pump and two wholesale general merchant shops and must be maintaining account books in relation with his aforesaid business, has the learned Commissioner erred in relying on mere conclusive testimony of the aforesaid opposite party / respondent No. 2 while concluding that the wages of the claimant / respondent No. 1 were Rs.4000/- per month?
4. Learned counsel for respondents argued that as per law propounded by Hon'ble Apex Court in Golla Rajanna Etc. Etc. Versus Divisional Manager and Another; 2017 (1) T.A.C. 259 (S.C.) degree of permanent disability and loss of earning capacity is totally question of fact and this cannot be seen under Section 30 of the Workmen's Compensation Act, which provides only for substantial question of law. Admittedly, owner of offending vehicle has admitted the claimant to be his driver with a pay of Rs.4,000/-.
The accident is admitted. Injury is proved and the medical officer by his oral testimony before Workmen's Compensation Commissioner has proved the permanent disability and loss of earning capacity and this medical officer has been examined on the basis of which the award has been passed.
5. Paras 6, 7 and 8 of the judgment rendered in Golla Rajanna's case (supra) reads as under:-
"6. Section 30 of the Act provides for appeals to the High Court. To the extent, the provision reads as follows:
“30. Appeals.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
[(aa) an order awarding interest or penalty under section 4A;]
(b) an order refusing to allow redemption of a half- monthly payment;
(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub- section (2) of section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:”
(Emphasis supplied)
7. The Workmen’s Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmen’s Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmen’s Compensation Commissioner.
8. Under the scheme of the Act, the Workmen’s 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. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act."
6. As per law propounded by Hon'ble Apex Court in above cited case, the appellate court while exercising jurisdiction under Section 30 of the Workmen's Compensation Act is with limited jurisdiction only. The substantial questions of law in the ground of appeal, mentioned as above, are the grounds of fact not of law. Hence, above law is fully applicable in the present case. Accordingly, appeal merits its dismissal.
7. The appeal is dismissed accordingly.
Order Date :- 21.1.2019 NS