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
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
