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Wednesday, January 8, 2014

Section 30 of the Employees Compensation Act, 1923/Workmen compensation Act - Appeal against the order of commissioner arise only when there is substantial question of law - Reversing the finding of commissioner regarding jural relationship of employee and worker though both are brothers - can not be over ruled by vaguely stating that it is against the documentary evidence with out showing what the documentary evidence that was said to be perused for reversing the commissioner finding - No appeal is maintainable with out involvement of substantial question of law under sec. 30 - Apex court set aside the order of High court and restored the orders of Commissioner = Smt. T.S. Shylaja …Appellant Versus Oriental Insurance Co. & Anr. …Respondents = Published in judis.nic.in/supremecourt/filename=41123

   Section 30 of the Employees Compensation Act, 1923/Workmen compensation Act - Appeal against the order of commissioner arise only when there is substantial question of law - Reversing the finding of commissioner regarding jural relationship of employee and worker though both are brothers - can not be over ruled by vaguely stating that it is against the documentary evidence with out showing what the documentary evidence that was said to be perused for reversing the commissioner finding - No appeal is maintainable with out involvement of substantial question of law under sec. 30 - Apex court set aside the order of High court and restored the orders of Commissioner = 

Section 30 of the Employees Compensation Act, 1923 no  doubt  provides
for an appeal to the High Court from the orders passed by  the  Commissioner
and enumerated in clauses (a) to (e) sub-Section (1) of Section 30.  Proviso
to Section 30(1), however, makes it abundantly clear  that  no  such  appeal
shall lie 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.   Section 30(1) reads as under:


           “30. Appeals.—

           (1) An appeal shall lie to the High  Court  from  the  following
           orders of a Commissioner, namely:—

           (a) an order as 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;

           1[(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:

           Provided further that no appeal shall lie in any case  in  which
           the parties  have  agreed  to  abide  by  the  decision  of  the
           Commissioner, or in which the order of  the  Commissioner  gives
           effect to an agreement come to by the parties:

           Provided further that no appeal by an employer under clause  (a)
           shall lie unless the memorandum of appeal is  accompanied  by  a
           certificate by the Commissioner to the effect that the appellant
           has deposited with  him  the  amount  payable  under  the  order
           appealed against.”



8.    What is important is that in terms of the 1st proviso,  no  appeal  is
maintainable  against  any  order  passed  by  the  Commissioner  unless   a
substantial question of law is involved.  This necessarily implies that  the
High Court would in the ordinary course formulate  such  a  question  or  at
least address the same in the judgment especially when the High Court  takes
a view contrary to the view taken by the Commissioner.

 The Commissioner for Workmen’s Compensation had, in the case at  hand,
appraised the evidence adduced before him and recorded  a  finding  of  fact
that the deceased was indeed employed as  a  driver  by  the  owner  of  the
vehicle no matter the owner happened to be his brother. That  finding  could
not be lightly interfered with or reversed  by  the  High  Court.  The  High
Court overlooked the fact that  the  respondent-owner  of  the  vehicle  had
appeared as a witness and clearly stated that the deceased was  his  younger
brother, but was working as a paid driver under him. The  Commissioner  had,
in this regard, observed:

                 “After examining the judgment of the Andhra  Pradesh  High
           Court relied upon by 2nd opponent it is seen that the  owner  of
           the vehicle being the sole  witness  has  been  unsuccessful  in
           establishing his case but in this proceeding the  owner  of  the
           vehicle has appeared before this  Court  even  though  he  is  a
           relative of the deceased, and has submitted in  his  objections,
           even evidence that even though  the  deceased  was  his  younger
           brother he was working as a driver under him, and  has  admitted
           that he was paying salary to him.  The applicant in  support  of
           his case has submitted Hon’ble High Court judgment  reported  in
           ILR  2006  KAR  518.   The  Divisional  Manager,  United   India
           Insurance Company Ltd. Vs. Yellappa  Bheemappa  Alagudi  &  Ors.
           which I have examined in depth which holds that there is no  law
           that relatives cannot  be  in  employer  employee  relationship.
           Therefore it is no possible to ignore the oral  and  documentary
           evidence in favour of the applicant and such evidence has to  be
           weighed in favour of the applicant.  For these  reasons  I  hold
           that the deceased was working as driver under first opponent and
           driving Toyota Quails No.KA-02-C-423, that he died  in  accident
           on 03.09.2005,  that  he  is  a  ‘workman’  as  defined  in  the
           Workmen’s Compensation Act and it is held  that  he  has  caused
           accident in the course of  employment  in  a  negligent  fashion
           which has resulted in his death”.




10.   The only reason which the High Court has  given  to  upset  the  above
finding of the Commissioner is  that  the  Commissioner  could  not  blindly
accept the oral evidence  without  analysing  the  documentary  evidence  on
record. We fail to appreciate as to what was the documentary evidence  which
the High Court had failed to appreciate and what was the  contradiction,  if
any, between such documents and the version given by the witnesses  examined
before the Commissioner. The High Court could not  have,  without  adverting
to the documents vaguely referred to by it have upset the  finding  of  fact
which the Commissioner was entitled to record.
Suffice it to say that  apart from appreciation of evidence  adduced  before  the  Commissioner  the  High Court has neither referred to nor determined any question of law  much  less
a substantial question of law existence whereof was  a  condition  precedent
for the maintainability of any appeal under  Section  30.  
Inasmuch  as  the
High court remained oblivious of  the  basic  requirement  of  law  for  the
maintainability of an appeal before  it  and  inasmuch  as  it  treated  the
appeal to be  one  on  facts  it  committed  an  error  which  needs  to  be
corrected.

11.   We accordingly allow this appeal, set aside  the  order  of  the  High
Court and restore that passed by the Commissioner.

                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.  51 OF 2014
                 (Arising out of S.L.P. (C) No.850 of 2012)


Smt. T.S. Shylaja                                  …Appellant

      Versus

Oriental Insurance Co. & Anr.                      …Respondents

                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.



2.    The short question that falls for  consideration  in  this  appeal  is
whether the High Court was justified in setting aside the  order  passed  by
the Commissioner for Workmen’s Compensation holding the  appellant  entitled
to an amount of Rs.4,48,000/- towards compensation with interest @  12%  per
annum.

3.    The claim before the Commissioner arose out of  a  motor  accident  in
which the deceased-Prahlad lost his  life  while  driving  a  Toyota  Qualis
vehicle bearing registration No.KA-02/C-423. The incident  in  question,  it
appears, occurred on 3rd September 2000 near Bidadi Police Station,  on  the
Bangalore-Mysore highway involving a head on collision with a  Tipper  Lorry
bearing No.KA-02-B-9135.  The deceased was removed to the hospital where  he
died two days after the accident. A claim petition  was  then  filed  before
the Commissioner  for  Workmen’s  Compensation,  Bangalore  Sub-Division-IV,
Bangalore  by  the  appellant,  mother  of  the  deceased  for  payment   of
compensation.  The claim petition alleged that the deceased was employed  as
a driver on a monthly salary of Rs.6,000/- by the owner of the vehicle.  The
vehicle being insured  with  the  respondent-company,  the  claimant  sought
recovery of the amount from the  company  in  terms  of  provisions  of  the
Workmen’s Compensation  Act,  1923,  now  re-christened  as  the  Employee’s
Compensation Act, 1923.
The insurance company contested the claim  primarily
on the ground that the jural relationship of employer and employee  did  not
exist between the owner and the deceased. 
It was also contended that it  was
the negligence  of  the  deceased  that  had  caused  the  accident  thereby
disentitling the claimant to any compensation.

4.    On the pleadings of the parties, the Commissioner  framed  six  issues
for determination and eventually came to the conclusion  that  the  deceased
was indeed working as a paid driver of the  owner  of  the  vehicle,  Toyota
Qualis and that the claimant, the appellant herein was entitled  to  receive
an amount of Rs.4,48,000/- towards compensation having regard  to  the  fact
that the deceased was just about 20 years of age at  the  time  of  accident
and was receiving Rs.4,000/- per month towards salary.   An  award  for  the
said amount was accordingly made by the Commissioner with interest @12%  per
annum against the respondent-company who  had  admittedly  underwritten  the
risk in terms of a policy issued by it.

5.    Aggrieved by the award  made  by  the  Commissioner,  the  respondent-
company preferred an appeal, M.F.A. No. 738 of 2009 before  the  High  Court
of Karnataka at Bangalore which has been allowed by a Single Judge  of  that
Court in terms of the order impugned order before us. The High Court was  of
the view that the relationship between the  deceased  and  his  brother  the
owner of the vehicle he was driving was  not  satisfactorily  proved  to  be
that of an employee and an employer and  that  the  only  remedy  which  the
appellant, mother of the deceased had, was by way of a claim for payment  of
compensation under the Motor Vehicles Act.

6.    Appearing for the appellant Mr. G.V. Chandrashekhar, learned  counsel,
strenuously argued that the High Court was  in  error  in  entertaining  the
appeal and in reversing the view taken by the Commissioner by  re-appraising
the evidence on record. He urged that the High Court remained  oblivious  of
the provisions of Section 30(1) of the Act which clearly stipulate  that  no
appeal shall lie against any order of the Commissioner unless a  substantial
question of law fell for consideration. No such question of  law  arose  for
consideration nor was the same framed or addressed by the High Court in  the
course of the  judgment.   The  reasoning  given  by  the  High  Court  was,
according to the learned counsel, vague and based entirely on  surmises  and
conjectures hence unsustainable in law.

7.    Section 30 of the Employees Compensation Act, 1923 no  doubt  provides
for an appeal to the High Court from the orders passed by  the  Commissioner
and enumerated in clauses (a) to (e) sub-Section (1) of Section 30.  Proviso
to Section 30(1), however, makes it abundantly clear  that  no  such  appeal
shall lie 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.   Section 30(1) reads as under:


           “30. Appeals.—

           (1) An appeal shall lie to the High  Court  from  the  following
           orders of a Commissioner, namely:—

           (a) an order as 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;

           1[(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:

           Provided further that no appeal shall lie in any case  in  which
           the parties  have  agreed  to  abide  by  the  decision  of  the
           Commissioner, or in which the order of  the  Commissioner  gives
           effect to an agreement come to by the parties:

           Provided further that no appeal by an employer under clause  (a)
           shall lie unless the memorandum of appeal is  accompanied  by  a
           certificate by the Commissioner to the effect that the appellant
           has deposited with  him  the  amount  payable  under  the  order
           appealed against.”



8.    What is important is that in terms of the 1st proviso,  no  appeal  is
maintainable  against  any  order  passed  by  the  Commissioner  unless   a
substantial question of law is involved.  This necessarily implies that  the
High Court would in the ordinary course formulate  such  a  question  or  at
least address the same in the judgment especially when the High Court  takes
a view contrary to the view taken by the Commissioner.

9.    The Commissioner for Workmen’s Compensation had, in the case at  hand,
appraised the evidence adduced before him and recorded  a  finding  of  fact
that the deceased was indeed employed as  a  driver  by  the  owner  of  the
vehicle no matter the owner happened to be his brother. That  finding  could
not be lightly interfered with or reversed  by  the  High  Court.  The  High
Court overlooked the fact that  the  respondent-owner  of  the  vehicle  had
appeared as a witness and clearly stated that the deceased was  his  younger
brother, but was working as a paid driver under him. The  Commissioner  had,
in this regard, observed:

                 “After examining the judgment of the Andhra  Pradesh  High
           Court relied upon by 2nd opponent it is seen that the  owner  of
           the vehicle being the sole  witness  has  been  unsuccessful  in
           establishing his case but in this proceeding the  owner  of  the
           vehicle has appeared before this  Court  even  though  he  is  a
           relative of the deceased, and has submitted in  his  objections,
           even evidence that even though  the  deceased  was  his  younger
           brother he was working as a driver under him, and  has  admitted
           that he was paying salary to him.  The applicant in  support  of
           his case has submitted Hon’ble High Court judgment  reported  in
           ILR  2006  KAR  518.   The  Divisional  Manager,  United   India
           Insurance Company Ltd. Vs. Yellappa  Bheemappa  Alagudi  &  Ors.
           which I have examined in depth which holds that there is no  law
           that relatives cannot  be  in  employer  employee  relationship.
           Therefore it is no possible to ignore the oral  and  documentary
           evidence in favour of the applicant and such evidence has to  be
           weighed in favour of the applicant.  For these  reasons  I  hold
           that the deceased was working as driver under first opponent and
           driving Toyota Quails No.KA-02-C-423, that he died  in  accident
           on 03.09.2005,  that  he  is  a  ‘workman’  as  defined  in  the
           Workmen’s Compensation Act and it is held  that  he  has  caused
           accident in the course of  employment  in  a  negligent  fashion
           which has resulted in his death”.




10.   The only reason which the High Court has  given  to  upset  the  above
finding of the Commissioner is  that  the  Commissioner  could  not  blindly
accept the oral evidence  without  analysing  the  documentary  evidence  on
record. We fail to appreciate as to what was the documentary evidence  which
the High Court had failed to appreciate and what was the  contradiction,  if
any, between such documents and the version given by the witnesses  examined
before the Commissioner. The High Court could not  have,  without  adverting
to the documents vaguely referred to by it have upset the  finding  of  fact
which the Commissioner was entitled to record.
Suffice it to say that  apart
from appreciation of evidence  adduced  before  the  Commissioner  the  High
Court has neither referred to nor determined any question of law  much  less
a substantial question of law existence whereof was  a  condition  precedent
for the maintainability of any appeal under  Section  30.  Inasmuch  as  the
High court remained oblivious of  the  basic  requirement  of  law  for  the
maintainability of an appeal before  it  and  inasmuch  as  it  treated  the
appeal to be  one  on  facts  it  committed  an  error  which  needs  to  be
corrected.

11.   We accordingly allow this appeal, set aside  the  order  of  the  High
Court and restore that passed by the Commissioner. We  grant  three  months’
time to the respondent to deposit the amount of compensation  together  with
interest, if not already paid  or  deposited  failing  which  the  appellant
shall be free to seek redress before the Commissioner for  recovery  of  the
amount awarded in her favour. No costs.



                                                          .……………….……….…..…J.
                                                               (T.S. THAKUR)




                                                         .…..…………………..…..…J.
                                                            (VIKRAMAJIT SEN)
New Delhi
January 3, 2014

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