# Ahmad Ahsan & Anr v. Sri Suresh

- **Citation:** (2023) 9 ILRA 310
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-17
- **Case number:** First Appeal From Order No. 1099 of 2001
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahmad-ahsan-anr-v-sri-suresh-50778
- **Pages:** 5

## Headnote

Civil Law - Employees St. Insurance Act,
1948 - Sections 51, 53 & 61 - Employees
Compensation Act, 1923 - Section 30 -
Appeal - challenging the Award - passed by the
Workmen's Compensation Commissioner -
9 All. Ahmad Ahsan & Anr. Vs. Sri Suresh
311
Accident - claimant, a Class-IV employee,
suffered a severe injury while on duty,
resulting
in
partial
disablement
-
the
respondents refused to engage the claimant
into service after the accident, leading to a
claim petition filed under the Employees'
Compensation Act - the appellants denied
the incident and the employment of the
claimant - The court finds that, so called
substantial Question of law framed are the
questions of facts and the findings of the
Commissioner on the said issues are not
perverse - court discussed the scope of
entertaining appeals against the award of the
Workmen's Compensation Commissioner -
held, the substantial questions of law raised
are actually questions of facts - appeal is
dismissed - the remaining amount if yet not
deposited, be deposited and disbursed to the
claimant accordingly. (Para -8, 12, 13)

Appeal Dismissed. (E-11)

List of Cases cited:

## Text

310 INDIAN LAW REPORTS ALLAHABAD SERIES
not recorded a positive finding about a case
of collusion between the owner and the
claimant, but on the totality of evidence,
has disbelieved the claimant's case about
the involvement of the offending car in the
accident. The stand taken by the owner in
the circumstances that no one had reported
the car to the Police, or spoken about his
car's involvement prior to the belated FIR
lodged a month and a three quarters after
the accident, strongly suggests a case of
collusion between the owner and the
claimant. If the owner was such an honest
and upright man that knowing the fact
about involvement of his car in the
accident, month's after it had happened
through a report to the Police, admitted it
before the Tribunal, there is no reason why
he did not come forward at the earliest
himself to disclose the accident to the
Police, or may be, to the claimant and his
relatives. It is not the claimant's case that
the owner came forward himself and
confided in him.

34. Also, the fact that though the
owner contested the claim by filing a
written statement, he discretely chose to
stay away from the witness-box hints at his
complicity. If one were to assume that the
vehicle being insured, the owner was not
bothered to participate in the matter beyond
putting in his written statement, there is no
reason why the owner who had admitted to
a very material fact-in-issue, to wit, the
involvement of his car in the accident,
would not be produced in evidence by the
claimant. The ellusiveness of the owner
from the witness-box, both at his own
instance and at the instance of the claimant,
is suggestive of the fact that both the owner
and the claimant did not want him (the
owner) risk facing cross-examination in
Court, or may be uncomfortable questions
by the Court.

35. These circumstances suggest a
cooked up story by the claimant, who no
doubt has suffered the accident, may be in a
case of dashing against a tree, to collude
with the owner and claim compensation for
himself. This Court, therefore, does not
find any force in the submissions advanced
on behalf of the claimant on the premise of
the owner's admission about the accident.
There is nothing on record to show it being
a case of 'hit and run' either.

36. There is no force in this appeal. It,
accordingly, fails and is dismissed. Costs
easy.

37. Let the records of the Tribunal be
sent down at once by the office through the
District Judge, Etawah.
----------
(2023) 9 ILRA 310
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 1099 of 2001

Ahmad Ahsan & Anr. ...Appellants
Versus
Sri Suresh ...Respondent

Counsel for the Appellants:
Sri Syed Farman Ahmad Naqvi (Sr. Adv.), Sri Lal
Mani Singh

Counsel for the Respondents:
Sri Bijai Prakash Tiwari

Civil Law - Employees St. Insurance Act,
1948 - Sections 51, 53 & 61 - Employees
Compensation Act, 1923 - Section 30 -
Appeal - challenging the Award - passed by the
Workmen's Compensation Commissioner -
9 All. Ahmad Ahsan & Anr. Vs. Sri Suresh
311
Accident - claimant, a Class-IV employee,
suffered a severe injury while on duty,
resulting
in
partial
disablement
-
the
respondents refused to engage the claimant
into service after the accident, leading to a
claim petition filed under the Employees'
Compensation Act - the appellants denied
the incident and the employment of the
claimant - The court finds that, so called
substantial Question of law framed are the
questions of facts and the findings of the
Commissioner on the said issues are not
perverse - court discussed the scope of
entertaining appeals against the award of the
Workmen's Compensation Commissioner -
held, the substantial questions of law raised
are actually questions of facts - appeal is
dismissed - the remaining amount if yet not
deposited, be deposited and disbursed to the
claimant accordingly. (Para -8, 12, 13)

Appeal Dismissed. (E-11)

List of Cases cited:

1. Western India Plywood Ltd. Vs Shri P. Ashokan
dated 19.9.1997 - AIR 1997 SC 3883,

2. Civil Appeal No.7470 of 2009 North East Karnataka
Road Transport Corporation Vs Smt. Sujatha decided
on 2.11.2018,

3. Golla Rajanna Etc. Etc. Vs Divisional Manager &
anr., 2017 (1) TAC 259 (SC),

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Mr. Lal Mani Singh, learned
counsel for the appellants and Mr. Bijai
Prakash Tiwari, learned counsel for the
respondent.

2. By way of this appeal, the
appellants have challenged the judgment
and award dated 21.6.2001 passed by
Workmen's
Compensation
Commissioner/
Additional
District
Magistrate (City) Kanpur Nagar in Case
No. 4 of 1996.

3. This Court while admitting the
appeal did not frame any substantial
questions of law and, therefore, questions
of law framed by the appellants are
required to be decided as per the said
questions of law framed herein below:-

(i) Whether the bar under Section 53
and 61 of Employees State Insurance Act,
1948 is applicable upon the impugned
proceedings because the opposite party is
getting pension and had already received
compensation as per the Rules?

(ii) Whether in view of Section 53 and
51 of the Employees State Insurance Act,
1948
impugned
proceedings
were
maintainable or the same are barred under
Section 53 and 61 of the Act?

(iii) Whether Section 53 of the
Employees State Insurance Act, 1948 itself
entitles an employee who has suffered
alleged employment injury from receiving
or recovering the compensation and
damages
under
the
Workmen's
Compensation Act or any other law for the
time being imposed or otherwise?

4. The brief facts of the case culled
out from the record are that the claimants
had preferred a claim petition under the
provisions of Employees' Compensation
Act 1923 (hereinafter referred to as Act,
1923) against the appellants herein. The
claimant was a Class-IV employee. The
appellants are the owner of the Tenari New
Light Teners. On 19.6.1995 when the
claimant was on duty, at that time, at about
1:25 PM his left hand (upper limb) came in
the machine and his index finger alongwith
thumb and other parts got crushed and they
had to be amputed, which resulted in total
partial disablement to the claimant. The
claimant was rushed to the hospital and
from 19.6.1995 till 16.8.1995 he was under
treatment (i.e. about two months).
312 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The respondents refused to engage
claimant into service after the accident, and
therefore, the notice was given to the
appellants to pay compensation despite the
notice, no amount was paid rather the
claimant
was
summoned
and
was
humiliated by appellants. The notice was
given to the appellants herein, who filed its
reply on 30.1.1999 and denied the entire
incident and submitted that claimant was
not employed by them as a machine man
and that the accident if at all had occurred
was because of the negligence of claimant.
It is stated that the claimant did not report
for duty his name was deleted from the list.
Even before the said reply, Mohd. Azmal
was made a party who also filed his reply
of denial and denied the employment. The
Workmen Commissioner framed several
issues. The stand of the appellants was that
the claimant was removed after following
the procedure.

6. The issue no.1 has rightly been
decided by the Commissioner and it is a
question of fact. As far as issue no.2 is
concerned, as to whether the appellants had
paid any amount to the claimant or not just
because the ESI has made certain payments
would it permit the appellants herein not to
pay any amount. While deciding the issue
for compensation, which is a question of
fact. The questions is whether this Court
can entertain this appeal under Section 30
of the Act on the questions of facts.

7. Learned counsel for the appellants
has
contended
that
Employees
State
Insurance Act 1948 has granted him
pension. The judgment according to the
counsel for appellants is silent and has not
discussed this aspect. Learned counsel for
the appellants has relied on the judgment of
Hon'ble Apex Court in the case of Western
India Plywood Ltd. Vs. Shri P. Ashokan
dated 19.9.1997 and contended that the said
judgment is relied on so as to contend that
once
the
employee
has
received
disablement benefit under the Employees
State Insurance Act, 1948 he would not be
entitled
to
any
amount
under
the
Emplioyees'
Compensation Act
1923,
which is barred by Section 53 of
Employees State Insurance Act. It is
contended that the provisions of law is very
clear that the claimant could not have made
the claim.

8. However, looking to the injuries
and the long period, which has passed by
claimant and that the claimant has lost his
fingers (upper limbs). The amount awarded
being meagre amount cannot be interfered
with and it can be considered to be medical
expenses. The amount deposited would
enure for the benefit of the injured who has
lost his fingers, hand and job as well as
crushed other three fingers.

9. The written statement nowhere
mentioned the fact that the claimant had
received any amount under the Workmen's
Compensation Ac, 1948.

10. At the outset, it is relevant to
discuss the scope of this Court to entertain
appeal against the award of Workmen's
Compensation Commissioner. The Apex
Court in Civil Appeal No.7470 of 2009
North East Karnataka Road Transport
Corporation Vs. Smt. Sujatha decided on
2.11.2018 has 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,
9 All. Ahmad Ahsan & Anr. Vs. Sri Suresh
313
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 dependents of the deceased
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 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 findings of fact."

11. The Apex Court further went on to
hold as under :

"15. Such appeal is then heard on the
question of admission with a view to find
out as to whether it involves any substantial
question of law or not. Whether the appeal
involves a substantial question of law or
not depends upon the facts of each case
and needs an examination by the High
Court. If the substantial question of law
arises, the High Court would admit the
appeal for final hearing on merit else
would dismiss in limini with reasons that it
does not involve any substantial question/s
of law.

16. Now coming to the facts of this
case, we find that the appeal before the
High Court did not involve any substantial
question of law on the material questions
set out above. In other words, in our view,
the Commissioner decided all the material
questions arising in the case properly on
the basis of evidence adduced by the
parties
and
rightly
determined
the
compensation payable to the respondent. It
was, therefore, rightly affirmed by the High
Court on facts.

17. In this view of the matter, the
findings being concurrent findings of fact of
the two courts below are binding on this
Court. Even otherwise, we find no good
ground to call for any interference on any
of the factual findings. None of the factual
findings are found to be either perverse or
arbitrary or based on no evidence or
against
any
provision
of
law.
We
accordingly uphold these findings."

12. As far as present appeal is
concerned,
the
so
called
substantial
questions of law framed are the questions
of
facts
and
the
findings
of
the
Commissioner on the said issues are not
perverse. As far as interest is concerned, the
same is answered against the Insurance
Company in view of the decision of the
Apex Court in North East Karnataka
Road
Transport
Corporation
Case
(Supra). In Golla Rajanna Etc. Etc. Vs.
Divisional Manager and Another, 2017
(1) TAC 259 (SC) also it has been held that
under Section 30, the High Court cannot
enter into the arena of facts unless they are
proved to be perverse.

13. In view of the special facts and
circumstances, this appeal is dismissed.
The remaining amount if yet not deposited,
be
deposited
and
disbursed
to
the
claimants. The so called questions of law
framed by the appellants are answered
against it. In fact the substantial questions
of law raised are the questions of fact.

14. Interim relief, if any, shall stand
vacated forthwith. The amount be disbursed
to the claimant forthwith.
314 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The record be sent back to the
court below.
----------
(2023) 9 ILRA 314
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

First Appeal From Order No. 1285 of 2023

Smt. Yasmeen Zia ...Appellant
Versus
Smt. Haneefa Khursheed & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Devansh Misra, Sri Sudheer Rana

Counsel for the Respondents:
Sri Pankaj Agarwal

CIVIL LAW - Civil Procedure Code, 1908 -
Sections 97, 104, 104(1) & 105(2) - Order
XLIII - Rule 1(u) - Order XLI - Rule 23 : -
Appeal - against the impugned order - which
arose from the judgment and decree in Original
Suit - the trial court, disposed of the suit on a
preliminary point, and the decree was reversed
in appeal, remanding the case back to the trial
judge
-
opponent
raised
a
preliminary
objection, stating that the order of remand had
been carried out, and the trial court had passed
an order disposing of 'Issue no. 9' - they
argued that the appellant should file an appeal
against the subsequent order passed by the
trial court, making the present appeal against
the order of remand purposeless - The
appellant's counsel countered this objection,
asserting that an appeal against an order of
remand cannot become redundant with the
passing of the consequential order by the trial
court - The right of appeal granted by Order
XLIII, Rule 1(u) against an order of remand
cannot be nullified by the passing of the
consequential order pursuant to the remand -
held,
the
objections
raised
to
the
maintainability of the appeal, are, therefore,
held to be legally unsustainable - list the
appeal for admission as fresh. (Para -8, 12, 13)

Preliminary
objection
rejected,
but,
Appeal is pending. (E-11)

List of Cases cited:

1. Kanakaya Vs Lakshmayya - AIR 1951 Mad
218,

2. Kanhaiyalal Vs Tribeni Sahai - AIR 1914 All
380

3. Ramien Vs Veerappudian - AIR 1914 Mad
473(2)

4. Gokul Kalwar Vs Chandar Sekhar - AIR 1926
All 665

5. Madhu Sudan Vs Chhalimaddin Ahammad -
AIR 1928 Cal 167

6. Gurmukh Singh Vs Shiv Ram - AIR 1935 Lah
482

7. Basawant Mallappa Vs Kallappa Virbhadrappa
- AIR 1938 Bom 222

8. Madhorao Paikaji Vs Ekanathrao Balappa -
AIR 1948 Nag 56

9. Uppala Subbaiah Vs Chitrala Narsimloo - AIR
1956 Hyd 161.

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Shri Devansh Mishra,
learned counsel for the appellant and Shri
Pankaj Agarwal, learned counsel for the
respondents.

2. The present appeal is directed
against the order dated 08.05.2023 passed
in Civil Appeal No. 22 of 2022, arising out
of
the
judgment
and
decree
dated
31.03.2022, passed in Original Suit No.
649 of 2016.