Bhupendra Kaur Ors v. Atul Sharma

Order

1. The present appeal has been filed by the appellant/non- applicant No.1-Atul Sharma (hereinafter to be referred as "appellant/non-applicant No.1") under Section 30 of the Workmen's Compensation Act, assailing the impugned award dated 19.04.2010 passed by the learned Commissioner, Workmen Compensation Act, 1923, Alwar (hereinafter to be referred as "learned Commissioner") in Claim Case No.WCA/18/2005 titled as "Bhupendra Kaur & Ors. Vs. Atul Sharma", whereby the appellant/non-applicant No.1 has been directed to deposit a penalty of Rs.50,000/- and cremation expense Rs.2,500/-, whereas the respondent/non-Claimant No.2-Insurance Company [2025:RJ-JP:27187] (2 of 6) [CMA-609/2011] was held liable to pay the compensation amount of Rs. 3,56,980/- and interest thereon.

2. Brief facts giving rise to the present appeal are that the deceased Gurdeep Singh was employed as a driver on truck bearing registration No.RJ-14-1G-8158 under the employment of the appellant. That on 06.02.2005, as per the direction of the appellant, the deceased was driving the loaded truck from Ahmedabad to Delhi. During the journey, near Ratanpur Checkpost, at about 05:00 AM, he went for a natural call to a lonely place but unfortunately fell into a deep well, sustained injuries, and consequently died on 06.02.2005. At the time of his death, the deceased was 42 years of age and was earning Rs.4,500/- per month. A claim was filed for awarding compensation to the tune of Rs.3,56,980/- along with 18% interest as permissible under the Act.

3. After service, the appellant/non-applicant No. 1 filed a reply to the claim petition, stating that the deceased Gurdeep Singh was engaged just one month before his death at a monthly salary of Rs. 4,000/-. The truck in question was fully insured, and even the driver employed thereon was covered under the insurance; as such, the Insurance Company is liable to pay the compensation.

4. The respondent/Non-Claimant No. 2, the Insurance Company, also filed a separate reply to the claim petition, refuting the averments made therein, contending that the relationship between employer and employee, and other averments stated in the claim petition were incorrect, and prayed for the dismissal of the claim petition. [2025:RJ-JP:27187] (3 of 6) [CMA-609/2011]

5. On the basis of the pleadings of the parties, the learned Workmen's Compensation Commissioner framed six (6) issues.

6. Thereafter, in order to substantiate the averments made in the claim petition, both parties adduced oral and documentary evidence in support of their case. However, after hearing arguments of the parties, the learned Commissioner awarded compensation of Rs. 3,56,980/- in favour of the respondents/claimants and against respondent/non-claimant No.2-the Insurance Company, but at the same time directed the appellant/non-applicant No.1 to deposit a sum of Rs. 50,000/- as penalty and Rs. 2,500/- for cremation expenses within 60 days from the date of passing of the award.

7. Being aggrieved by this award, qua imposition of penalty, the appellant/non-applicant No. 1 has assailed the impugned award.

8. The contention of the learned counsel for the appellant/non- applicant No.1 is that the learned Commissioner has erred in imposing a penalty upon the appellant/non-applicant No.1. He further submitted that since the compensation has been awarded against respondent/non-claimant No.2-the Insurance Company, therefore, the liability to pay the penalty should also have been awarded against respondent/non-claimant no.2, and accordingly prays for modification of the award dated 19.04.2010.

9. Per contra, the learned counsel for the respondents supported the impugned award and vehemently opposed the arguments made by the learned counsel for the appellant/non- applicant No.1. He submitted that the learned Commissioner, after due consideration of the facts and circumstances, has passed the impugned award. He further submitted that the impugned award [2025:RJ-JP:27187] (4 of 6) [CMA-609/2011] is in consonance with the provisions of Section 4A(3) of the Workmen's Compensation Act, and therefore no interference is required by this Court, and prayed for the dismissal of the appeal.

10. Heard and considered submissions made by the learned counsel for the parties and perused the material available on record.

11. From a bare perusal of the impugned award, it is revealed that the learned Commissioner, while taking note of the provisions of Section 4A(3) of Workmen Compensation Act, 1923, has fastened the liability to pay the penalty upon the owner. A bare perusal of language of the statute clearly reveals that the mandate of law to pay penalty is always to be borne by the employer; therefore, I find no illegality in the impugned award, and the arguments raised by the learned counsel for the appellant/non-claimant No. 1 is contrary to the provisions of section 4A(3) of the Workmen Compensation Act, therefore, the same can not be accepted.

12. Since imposition of penalty upon the appellant is strictly in accordance with law, therefore, this court finds no good ground to call for any interference on any of the impugned findings. None of the impugned findings are found to be either perverse or arbitrary or basis on no evidence or against any provision of law. Rather while passing award, the learned Commissioner has used its discretion for awarding the penalty on the appellant according to the provisions of Workmen’s Compensation Act. [2025:RJ-JP:27187] (5 of 6) [CMA-609/2011]

13. The Hon'ble Supreme Court in the case of Golla Rajanna Etc. Vs. The Divisional Manager and anr. reported in 2017 (1) SCC 45, held as under :- "8. Section 30 of the Act provides for appeal 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 lumpsum 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 [2025:RJ-JP:27187] (6 of 6) [CMA-609/2011] in Clause (b),unless the amount in dispute in the appeal is not less than three hundred rupees (Emphasis supplied)

14. 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 question of law, being a welfare legislation.

15. It is the settled position of law that limited jurisdiction has been given to the High Court confined to the substantial question of law only and the High Court cannot venture and re appreciate the evidence and finding of fact recorded on the evidence led by both the parties.

16. Since the appeal is not qualifying to have a substantial question of law, which is mandatory under Section 30 of the Workmen's Compensation Act, 1923, therefore, no interference is called for in this appeal and the same is dismissed.

17. All pending application(s), if any, also stand dismissed. Seema/51 (MANEESH SHARMA),J

Order

1. The present appeal has been filed by the appellant/non- applicant No.1-Atul Sharma (hereinafter to be referred as "appellant/non-applicant No.1") under Section 30 of the Workmen's Compensation Act, assailing the impugned award dated 19.04.2010 passed by the learned Commissioner, Workmen Compensation Act, 1923, Alwar (hereinafter to be referred as "learned Commissioner") in Claim Case No.WCA/18/2005 titled as "Bhupendra Kaur & Ors. Vs. Atul Sharma", whereby the appellant/non-applicant No.1 has been directed to deposit a penalty of Rs.50,000/- and cremation expense Rs.2,500/-, whereas the respondent/non-Claimant No.2-Insurance Company [2025:RJ-JP:27187] (2 of 6) [CMA-609/2011] was held liable to pay the compensation amount of Rs. 3,56,980/- and interest thereon.

2. Brief facts giving rise to the present appeal are that the deceased Gurdeep Singh was employed as a driver on truck bearing registration No.RJ-14-1G-8158 under the employment of the appellant. That on 06.02.2005, as per the direction of the appellant, the deceased was driving the loaded truck from Ahmedabad to Delhi. During the journey, near Ratanpur Checkpost, at about 05:00 AM, he went for a natural call to a lonely place but unfortunately fell into a deep well, sustained injuries, and consequently died on 06.02.2005. At the time of his death, the deceased was 42 years of age and was earning Rs.4,500/- per month. A claim was filed for awarding compensation to the tune of Rs.3,56,980/- along with 18% interest as permissible under the Act.

3. After service, the appellant/non-applicant No. 1 filed a reply to the claim petition, stating that the deceased Gurdeep Singh was engaged just one month before his death at a monthly salary of Rs. 4,000/-. The truck in question was fully insured, and even the driver employed thereon was covered under the insurance; as such, the Insurance Company is liable to pay the compensation.

4. The respondent/Non-Claimant No. 2, the Insurance Company, also filed a separate reply to the claim petition, refuting the averments made therein, contending that the relationship between employer and employee, and other averments stated in the claim petition were incorrect, and prayed for the dismissal of the claim petition. [2025:RJ-JP:27187] (3 of 6) [CMA-609/2011]

5. On the basis of the pleadings of the parties, the learned Workmen's Compensation Commissioner framed six (6) issues.

6. Thereafter, in order to substantiate the averments made in the claim petition, both parties adduced oral and documentary evidence in support of their case. However, after hearing arguments of the parties, the learned Commissioner awarded compensation of Rs. 3,56,980/- in favour of the respondents/claimants and against respondent/non-claimant No.2-the Insurance Company, but at the same time directed the appellant/non-applicant No.1 to deposit a sum of Rs. 50,000/- as penalty and Rs. 2,500/- for cremation expenses within 60 days from the date of passing of the award.

7. Being aggrieved by this award, qua imposition of penalty, the appellant/non-applicant No. 1 has assailed the impugned award.

8. The contention of the learned counsel for the appellant/non- applicant No.1 is that the learned Commissioner has erred in imposing a penalty upon the appellant/non-applicant No.1. He further submitted that since the compensation has been awarded against respondent/non-claimant No.2-the Insurance Company, therefore, the liability to pay the penalty should also have been awarded against respondent/non-claimant no.2, and accordingly prays for modification of the award dated 19.04.2010.

9. Per contra, the learned counsel for the respondents supported the impugned award and vehemently opposed the arguments made by the learned counsel for the appellant/non- applicant No.1. He submitted that the learned Commissioner, after due consideration of the facts and circumstances, has passed the impugned award. He further submitted that the impugned award [2025:RJ-JP:27187] (4 of 6) [CMA-609/2011] is in consonance with the provisions of Section 4A(3) of the Workmen's Compensation Act, and therefore no interference is required by this Court, and prayed for the dismissal of the appeal.

10. Heard and considered submissions made by the learned counsel for the parties and perused the material available on record.

11. From a bare perusal of the impugned award, it is revealed that the learned Commissioner, while taking note of the provisions of Section 4A(3) of Workmen Compensation Act, 1923, has fastened the liability to pay the penalty upon the owner. A bare perusal of language of the statute clearly reveals that the mandate of law to pay penalty is always to be borne by the employer; therefore, I find no illegality in the impugned award, and the arguments raised by the learned counsel for the appellant/non-claimant No. 1 is contrary to the provisions of section 4A(3) of the Workmen Compensation Act, therefore, the same can not be accepted.

12. Since imposition of penalty upon the appellant is strictly in accordance with law, therefore, this court finds no good ground to call for any interference on any of the impugned findings. None of the impugned findings are found to be either perverse or arbitrary or basis on no evidence or against any provision of law. Rather while passing award, the learned Commissioner has used its discretion for awarding the penalty on the appellant according to the provisions of Workmen’s Compensation Act. [2025:RJ-JP:27187] (5 of 6) [CMA-609/2011]

13. The Hon'ble Supreme Court in the case of Golla Rajanna Etc. Vs. The Divisional Manager and anr. reported in 2017 (1) SCC 45, held as under :- "8. Section 30 of the Act provides for appeal 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 lumpsum 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 [2025:RJ-JP:27187] (6 of 6) [CMA-609/2011] in Clause (b),unless the amount in dispute in the appeal is not less than three hundred rupees (Emphasis supplied)

14. 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 question of law, being a welfare legislation.

15. It is the settled position of law that limited jurisdiction has been given to the High Court confined to the substantial question of law only and the High Court cannot venture and re appreciate the evidence and finding of fact recorded on the evidence led by both the parties.

16. Since the appeal is not qualifying to have a substantial question of law, which is mandatory under Section 30 of the Workmen's Compensation Act, 1923, therefore, no interference is called for in this appeal and the same is dismissed.

17. All pending application(s), if any, also stand dismissed. Seema/51 (MANEESH SHARMA),J