Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 1321 of 2005 Appellant :- Sunder Pal Respondent :- Vijendra Singh And Another Counsel for Appellant :- Nigamendra Shukla Counsel for Respondent :- Sushil Kumar Mehrotra
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Nigamendra Shukla, learned counsel for the appellant and Sri S.K. Mehrotra, learned counsel for the respondent-Insurance Company. None appeared for the owner.
2. This appeal, at the behest of the injured- claimant, challenges the judgment and order dated 5.3.2005 passed by Commissioner, Workmen's Compensation Act, 1923 in Case No.WCA- 298 of 2003 whereby the Commissioner has rejected the claim of the appellant.
3. The brief facts go to show that the accident occurred on 5.7.2002 at about 2.00 p.m. when the injured was on job. When he was trying to bring down the iron girdles, he sustained injuries. He was a cleaner on the vehicle owned by respondent No.1. The vehicle was insured with respondent No.2. The Insurance Company should have been made liable. The owner had not paid any compensation except for the medical expenses incurred by the injured.
4. The Commissioner rejected the claim on the ground that the facts that he had sustained injuries due to employment injury is not proved. Despite cross examination, the owner asserted that the claimant-appellant herein was employed by him. The Commissioner rejected the claim only on the ground that the F.I.R. was not registered and that it was not properly proved that the appellant was on what age. This finding of fact is fallacious. The Commissioner has failed to take into consideration the relevant fact and took into consideration factors and facts which were not to be taken and, therefore, this appeal has to be entertained.
5. While admitting this appeal, no question of law was framed. The judgment in Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC) would not apply to the facts of the case rather the judgment in T.S. Shylaja Vs. Oriental Insurance Company and another, (2014) 2 SCC 587 and the judgment of this Court in First Appeal From Order No. 1712 of 2005 (New India Assurance Co. Ltd. Vs. Naresh Kumar & Another) decided on 13.12.2017 will apply.
6. The medical certificate produced by claimant was countersigned by C.M.O., Meerut shows that there is 80% disability. He was cleaner and both of his lower limbs suffered fractures. This is a case under the Workmen's Compensation Act and not under the Motor Vehicles Act, 1988 hence, compensation has to be worked out as per Section 4 read with Section 4A of the Act, 1923.
7. Hence, the matter is remitted to the Commissioner for deciding the quantum. No need for taking additional evidence. The commissioner to decide the quantum as early as possible not later than 30.9.2019.
8. Appeal is partly allowed. Record and proceedings be sent back to the Commissioner as expeditiously as possible.
9. This Court feels sorry about the claimant who is without any money till date. The matter can be decided hear but for the hyper technical stand taken by Sri S.K. Mehrotra.
Order Date :- 21.8.2019 DKS