Oriental Insurance Co. Ltd. v. Manjit Singh

receipt of refusal of respondent No. 2, that claim petition was filed, though, it was pleaded that if there is any delay, the same may be condoned. The appellant did not rightly raise the plea before the Commissioner, therefore, cannot raise the same before this Court.

13. The next contention of the appellant is that the permanent physical disability of the injured is assessed at 41% as his loss of earning capacity. In Rayapati Venkateshwar Rao V. Mantai Sambasiva Rao & anr. 2001 ACJ 2105, the Hon’ble Supreme Court has held as under:- “According to the medical evidence, the applicant cannot perform his duties as a cleaner as he was performing prior to the accident and he has to use a stick to walk. So it is very clear from the evidence and findings of the learned Commissioner that the appellant cannot perform his duties as a cleaner as he was performing on the day of accident and as per the settled legal position as extracted above, it has to be held that when once the workman was incapacitated and unable to perform his duties what he is performing on the day of accident, even 6 FAO (WC) No. 09/2020 though the physical disability sustained is 20 to 25% he loses his earning capacity by 100%”.

14. In G. Anjaneyulu V. Alla Seshi Reddy & anr. 2002 ACJ 1392, the Hon’ble Supreme Court has held as under: “No doubt this court and the Hon‟ble Apex Court in a number of cases held that if the workman is unable to perform his duties as he was performing on the day of accident, his loss of earning capacity should be taken as 100 per cent irrespective of the percentage of disability sustained by the workman. Thus the loss of earning capacity has rightly been taken by the Commissioner to be 41%.

15. It is a well settled proposition that appeal to the High Court lies under Section 30 of the Employees Compensation Act, 1923 and no appeal shall lie against any order unless a substantial question of law is involved in the appeal. Section 30 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 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 [employee], 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: 7 FAO (WC) No. 09/2020 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.] (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of [the Limitation Act, 1963 (36 of 1963)], shall be applicable to appeals under this section. (i) The mere difficulty of applying the facts to the law will not amount to a substantial question of law; Asmath Bedi (dead) v. Marlmuthu, 1990 LLR 450 (Mad). (ii) An appeal against the order of the Compansation Commissioner lies only when a substantial question of law is involved; Mangala Ben v. Dalip Motwani, 1998 LLR 656. (iii) Scope of section 30 of the Workmen's Compensation Act for entertaining the appeal against the order passed by the Commissioner is very limited. The said section 30 very clearly provides that the award of the Commissioner passed under the aforesaid Act can be challenged in the appeal where substantial question of law are involved; General Manager, C.C. Ltd. v. Bhim Yadav, 2003 LLR 574 (Jhk HC).

16. The Hon’ble Supreme Court in “North East Karnataka Road Transport Corporation vs. Sujatha” (2019) 11 SCC 514 held as under: “9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependants of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident, etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his 8 FAO (WC) No. 09/2020 employment and he/his LRs sue(s) his employer to claim compensation under the Act.

10. The aforementioned questions are essentially the questions of fact and, therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the finding of fact.”

17. All the issues raised in this appeal are issues of fact and not of law, and the appeal only lies when a substantial question of law is involved, therefore, this appeal is not maintainable and the same is, accordingly, dismissed. Srinagar: 10.03.2023 Michal Sharma (Sindhu Sharma) Judge Whether the judgment is speaking Whether the judgment is reportable : : Yes/No Yes/No