# Branch Manager, United India Insurance Co., Ltd., Alld v. Sri Nagendra Tiwari & Anr

- **Citation:** (2023) 7 ILRA 639
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-25
- **Case number:** First Appeal From Order No. 350 of 2006
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/branch-manager-united-india-insurance-co-ltd-alld-v-sri-nagendra-tiwari-anr-50568
- **Pages:** 4

## Headnote

A. Civil Law - Workmen's Compensation
Act, 1923-Section 30- Commissioner has
awarded compensation of 2,87,209/ with
interest-Challenge against- the certificate
shows that the disability is only 17% and
there is amputation of three flanges of the
upper
limb
but
the
Tribunal
has
considered the injury to be causing 100%
disability, which could not have been
done.-disability due to the accidental fall
is proved beyond reasonable doubt and
under the provisions of Section 4(1)(C) of
the Workmen's Compensation Act, 1923 -
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
640 INDIAN LAW REPORTS ALLAHABAD SERIES
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- The so called questions
of law framed by the Insurance Company
are answered against it. In fact the
substantial questions of law raised are the
questions of fact.(Para 1 to 9)
The appeal is dismissed. (E-6)

List of Cases cited:

## Text

7 All. Branch Manager, United India Insurance Co., Ltd., Alld. Vs. Sri Nagendra Tiwari & Anr. 639
have not been considered in the correct
perspective by the Tribunal. Once the
aforesaid foundational facts have been
connected
with
the
evidence
and
considering the fact that neither the owner
nor the driver led any evidence to
contradict the statement of the claimant and
his witnesses and nothing adverse having
been elicited in their testimony, thus, the
Tribunal has erred in appreciating the
evidence on record. It ignored material
evidence and has recorded findings which
are based on surmises and against the
weight of the material on record."

28. The finding of the Tribunal on
Issue No.1 is, accordingly, set aside and the
issue is answered in favour of the claimant;
against the owner and the Insurers.

29. The findings on Issues Nos.2 and
3 have been recorded in favour of the
claimant by the Tribunal. Those findings
are affirmed.

30. Since Issue No.4 has not at all
been decided by the Tribunal, I am of
opinion that this matter ought to go back to
the Tribunal for the purpose of the said
issue being decided afresh on merits, after
hearing parties.

31. Accordingly, this appeal succeeds
and is allowed in part. The impugned
judgment and award dated 29.11.1997
passed by the Motor Accident Claims
Tribunal/ 8th Additional District Judge,
Etawah is set aside with a remit of the
matter to the Tribunal, that would now hold
jurisdiction in the matter. The Presiding
Officer of the Motor Accident Claims
Tribunal will hear the parties afresh with
full opportunity to lead evidence limited to
Issue No.4 alone. The findings on Issues
Nos.1, 2 and 3 shall not be re-opened and
abide by this judgment. The Tribunal shall
pass an award in accordance with its
finding on Issue No.4, after hearing parties,
within a period of three months from the
date of receipt of a copy of this order,
bearing in mind the directions in this
judgment and in accordance with law.
Costs easy.
----------
(2023) 7 ILRA 639
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

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

First Appeal From Order No. 350 of 2006

Branch Manager, United India Insurance
Co., Ltd., Alld. ...Appellant
Versus
Sri Nagendra Tiwari & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Saurabh Srivastava

Counsel for the Respondents:
C.S.C., Ms. S.R. Gupta

A. Civil Law - Workmen's Compensation
Act, 1923-Section 30- Commissioner has
awarded compensation of 2,87,209/ with
interest-Challenge against- the certificate
shows that the disability is only 17% and
there is amputation of three flanges of the
upper
limb
but
the
Tribunal
has
considered the injury to be causing 100%
disability, which could not have been
done.-disability due to the accidental fall
is proved beyond reasonable doubt and
under the provisions of Section 4(1)(C) of
the Workmen's Compensation Act, 1923 -
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
640 INDIAN LAW REPORTS ALLAHABAD SERIES
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- The so called questions
of law framed by the Insurance Company
are answered against it. In fact the
substantial questions of law raised are the
questions of fact.(Para 1 to 9)
The appeal is dismissed. (E-6)

List of Cases cited:

1. North East Karnataka Road Trans. Corp.Vs
Smt. Sujatha Civil Appeal No.7470 of 2009

2. Golla Rajanna Etc. . Vs Div. Manager & anr.
(2017) 1 TAC 259 SC

3. Mayan Vs Mustafa & anr. (2022) ACJ 524

4. Pratap Narain Singh Deo Vs Srinivas Sabata
(1976) 0 ACJ 141

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

1. Heard Shri Saurabh Srivastava,
learned counsel for the appellant-Insurance
Company and Ms.S.R. Gupta, learned
counsel for the respondent. None appears for
the employer.

2. By way of this appeal, United India
Insurance Company Ltd. has challenged the
judgment and award dated 8.9.2005 passed
by Workmen's Compensation Commissioner,
and
Assistant
Labour
Commissioner,
Saharanpur in WCA No.10 of 2004 awarding
compensation of Rs.2,87,209/- (with interest)
to the claimants.

3. Learned counsel for the appellant
submits that the certificate shows that the
disability is only 17% and there is amputation
of three flanges of the upper limb but the
Tribunal has considered the injury to be
causing 100% disability, which could not
have been done.

4. Learned counsel for the respondents
submits that this a pure question of fact,
which cannot be gone into by this Court in
the light of the judgment of Supreme Court in
the cases of Mayan vs. Mustafa and another,
2022 ACJ 524 and Pratap Narain Singh
Deo vs. Srinivas Sabata, 1976 0 ACJ 141.

5. On perusal memo of appeal, this
Court
finds
that
following
substantial
questions of law has been framed:

"(a)
Whether
the
learned
Commissioner was justified in over-looking the
fact that on fateful day the claimant injured was
absent from the duty, even though awarded
compensation for his injuries?

(b)
Whether
the
learned
Commissioner was justified in awarding
more compensation, than it was claimed by
the claimant itself?

(c)
Whether
the
learned
Commissioner was justified in awarding
interest against the appellant-Insurance
Co. against the principle laid down by the
Apex Court?

(d)
Whether
the
learned
Commissioner was justified in fixing the liability
upon the appellant-Insurance Co. without the
owner having been declared as insolvent as
required under Section 14 of the Act?

(e)
Whether
the
learned
Commissioner was justified in awarding
100%
compensation
as
against
the
disability certificate of only 17%?"

6. At the outset, it is relevant to
discuss the scope of this Court to entertain
7 All. Branch Manager, United India Insurance Co., Ltd., Alld. Vs. Sri Nagendra Tiwari & Anr. 641
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, 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."

7. 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."

8. 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
642 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

9. In view of the above, the appeal
fails and is dismissed. The so called
questions of law framed by the Insurance
Company are answered against it. In fact
the substantial questions of law raised are
the questions of fact.

10. Interim relief, if any, shall stand
vacated
forthwith.
The
amount
be
disbursed to the claimant forthwith.
----------
(2023) 7 ILRA 642
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2023

BEFORE

THE HON'BLE J.J.MUNIR, J.

First Appeal From Order No. 2599 of 2011

Arvind Agrawal & Anr. ...Appellants
Versus
Tanveer Ahmad & Ors. ...Respondents

Counsel for the Appellants:
Sri Vivek Kumar Singh

Counsel for the Respondents:
Sri Baleshwar Chaturvedi, Sri S.K. Mehrotra

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-deceased was a son of the
claimants/parents-
He
was
the
sole
breadwinner and he was aged 23 years and
earned a B.Tech (Communications) degreeAnnual
income
of
the
deceased
is
considered to be Rs. 72,000/- 50%
added towards future prospects as per
Rules 220-A(3) of 1998-Hence , total
compensation granted Rs. 14,06,000/-
@ 7%.(Para 1 to 35)

B. Filial consortium is the right of the
parents to compensation in the case of
an accidental death of a child. An
accident leading to the death of a child
causes great shock and agony to the
parents and family of the deceased. The
greatest agony for a parent is to lose
their child during their lifetime. Children
are valued for their love, affection,
companionship and their role in the
family unit.(Para 33)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Gyan Chand Jain & ors. Vs Permanand & ors.
(2003) 1 TAC 490
2. Sarla Verma(Smt.) & ors. Vs DTC (2009) 6
SCC 121

3. Magma General Ins. Co. Ltd. Vs Nanu Ram @
Chuhru Ram & ors. (2018) 18 SCC 130

4. National Ins. Co. Vs Pranay Sethi & ors.
(2017) 16 SCC 680

5. New India Assur. Co. Ltd Vs Urmila Shukla &
ors. (2021) SCC OnLine SC 822

6. Sushil Kumar & ors. Vs M/s. Sampark Lojastic
Pvt. Ltd & ors. (2017) 35 LCD 1311

7. P.O. Meera & anr.. Vs Ananda P. Naik & ors.
(2022) SCC OnLine Ker 546

8. Branch Manager, Future General India Ins.
Co. Ltd. Bengaluru Vs Varsha S.L. (2019) SCC
OnLine Kar 3498

9. Shashikala & ors. Vs Ganga-lakshmamma &
anr.. (2015) 9 SCC 150
(Delivered by Hon'ble J.J. Munir, J.)

This is a claimant's appeal under
Section 173 of the Motor Vehicles Act,