# E.S.I.C. / v. Triyugi Narain Pandey / - **Citation:** (2022) 9 ILRA 420 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-07-20 - **Case number:** FAFO No. 1161 of 1993 - **Bench:** Dr. Kaushal Jayendra Thaker - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/e-s-i-c-v-triyugi-narain-pandey-49068 - **Pages:** 4 ## Headnote A. Civil Law - Employees State Insurance Act, 1948-Section 82 - Appeal-ESIC preferred appeal against the judgment of Employees Insurance Court, Kanpur for 9 All. E.S.I.C. Vs. Triyugi Narain Pandey 421 awarding 10% loss of earning-respondent sustained employment injuries-medical board did not consider the injury as causing any loss of earning capacityWhether the appeal involves a substantial question of law or not depends upon the facts of each case, 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-In the present case, the so-called question of law framed by the Insurance Company are answered against it-In fact the substantial question of law raised are the question of fact. The appeal is dismissed. (E-6) List of Cases cited: ## Text 420 INDIAN LAW REPORTS ALLAHABAD SERIES Susamma Thomas and others, AIR 1994 SC 1631 for disbursement. 37. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma (supra), the order of investment is not passed because claimants are neither illiterate nor rustic villagers. 38. Recently the Gujarat High Court in case titled the Oriental Insurance Co. Ltd. v. Chief Commissioner of Income Tax (TDS), R/Special Civil Application No.4800 of 2021 decided on 05.04.2022, it is held that interest awarded by the tribunal or appellate court under Section 171 of Motor Vehicles Act is not taxable under the Income Tax Act, 1961 39. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunal shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and judgment of A.V. Padma (supra), the same is to be applied looking to the facts of each case. 40. In view of the above, both the appeals are partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount of Rs.68,17,176/- within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. 41. Record be transmitted to tribunal. 42. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 7 years have elapsed since occurrence of accident, the amount be deposited in the Saving Account of claimants in Nationalized Bank. The amount shall be credited in the said account with without investment as the case may be. 43. We are thankful to learned counsels for the parties for ably assisting this court in getting this old appeal disposed of. ---------- (2022) 9 ILRA 420 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 20.07.2022 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. FAFO No. 1161 of 1993 E.S.I.C. ...Appellant/Opposite Party Versus Triyugi Narain Pandey ...Respondent/Applicant Counsel for the Appellant: Sri Rajesh Tiwari Counsel for the Respondent: A. Civil Law - Employees State Insurance Act, 1948-Section 82 - Appeal-ESIC preferred appeal against the judgment of Employees Insurance Court, Kanpur for 9 All. E.S.I.C. Vs. Triyugi Narain Pandey 421 awarding 10% loss of earning-respondent sustained employment injuries-medical board did not consider the injury as causing any loss of earning capacityWhether the appeal involves a substantial question of law or not depends upon the facts of each case, 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-In the present case, the so-called question of law framed by the Insurance Company are answered against it-In fact the substantial question of law raised are the question of fact. The appeal is dismissed. (E-6) List of Cases cited: 1. Golla Rajanna Etc. Etc. Vs Div. Mgr. &anr. (2017) 1 TAC 259 SC 2. E.S.I.C. Vs S.Prasad F.A.F.O. 1070 of 1993 3. North East Karnataka Road Trans. Corp. Vs Smt. Sujatha Civil Appeal No. 7470 of 2009 (Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J.) 1. Heard Shri Rajesh Tiwari, learned counsel for appellant and perused the judgment and order impugned. 2. This appeal has been preferred under Section 82 of the Employees State Insurance Act, 1948, at the behest of the Employee State Insurance Corporation, has been preferred against the judgment and order dated 21.9.1993 passed by Employees Insurance Court, Kanpur in appeal. No. 70 of 1993 awarding 10% loss of earning. 3. The factual matrix as necessary for our purpose are that respondent sustained employment injuries on 11.6.1991 in his right eye. The medical board did not considerthe injury as causing any loss of earning capacity, which dissatisfied the respondent herein. The respondent preferred an appeal and has claimed 10% loss of earning capacity which appeal has been accepted by the 1st appellate authority. 4. The objections were filed by the appellant-herein and the medical examination of the injury of the insured person and the reports were also placed on record. The medical board did not find any diminution of vision and, therefore, held that the respondent was not entitled for any compensation. 5. The moot question which arises for consideration of this Court is that can this Court in appeal preferred under Section 82 of the Employees State Insurance Act 40 inquire with and the factual findings. 6. It is submitted by counsel for appellant that there is no evidence about diminution of vision of the eye and, there was no loss of earning capacity just holding that injury falls within Serial 32 of II Schedule of the Act can this be considered to be a substantial question of law, the answer to the same is 'No'. The reason being finding as to whether the injury was covered by Serial No.32 of the II Schedule is finding of fact and not question of law. 7. The grounds urged are basically question of facts. The award passed by Employees Insurance Court cannot be said to be perverse. It is not necessary that the owner should be declared as insolvent as alleged. 8. The appeal under Workmen Compensation Act has to be viewed very seriously in view of the judgment in Golla 422 INDIAN LAW REPORTS ALLAHABAD SERIES Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC). The finding of fact is that the injured was an employee who had sustained employment injury and was incapacitated to the tune 10%. 9. The Apex Court recently in Golla Rajanna (Supra) has been considered by this High Court in F.A.F.O. 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 wherein this Court has held as follows: "The grounds urged before this Court are in the realm of finding of facts and not a question of law. As far as question of law is concerned, the aforesaid judgment in Golla Rajanna Etc. Etc. Versus Divisional Manager and another (supra) in paragraph 8 holds as follows "the Workman Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis." 10. I am even supported in my view by the decision of the Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 wherein it has been held that the Court has held 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." 11. A recent decision of the Apex Court in the case of Mayan Vs. Mustafa and another, 2022 ACJ 524 also holds that the Court cannot interfere unless there is a question of law involved. In our case the injury was during the course of employment. The percentage of injury was decided by the court below. The judgment of Apex Court in Salim Versus New India Assurance Co. Ltd. and another, 2022 ACJ 526 will also not permit this Court to interfere in the wellreasoned judgment of the court below. 9 All. Vindhyachal (Deceased) Vs. Sri Kalika (Deceased) & Ors. 423 12. In view of the above, the appeal fails and is dismissed. The show 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. 13. Interim relief, if any, shall stand vacated forthwith. ---------- (2022) 9 ILRA 423 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 22.08.2022 BEFORE THE HON'BLE CHANDRA KUMAR RAI, J. Second Appeal No. 2974 of 1982 Vindhyachal (Deceased) ...Plaintiff/Appellant Versus Sri Kalika (Deceased) & Ors. ...Defendants/Respondents Counsel for the Appellant: Sri Kamlesh Kumar Kanojiya, Sri Bachchu Lal Yadav, Sri Kamlesh Kumar Kanojiya Counsel for the Respondents: Sri S.P. Tripathi, Sri Gautam Chaudhary, Sri Prem Shanker Prasad, Sri Rishikesh Pati Tripathi, Sri Suresh Chandra Pandey A. Civil Law - Second Appeal- Civil Procedure Code, 1908 - Section 100 - Resjudicata-Section 11-Ingredients ofsubstantial question of law-whether suit barred by principle of res-judicatadiscussed-Court below rightly adjudge the issue of res-judicata against the plaintiff.(Para 1 to 21) B. "Where persons litigate bona-fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section be deemed to claim under the persons so litigating." But it is only when the conditions of Explanation VI are satisfied that a decision in the litigation will bind all persons interested in the right litigated and the onus of proving the want of bona fides in respect of the previous litigation is on the party seeking to avoid the decision. The words "public right" have been added in Explanation VI in view of the new Section 91 C.P.C. and to prevent multiplicity of litigation in respect of public right. In view of Explanation VI it cannot be disputed that Section 11 applies to public interest litigation as well but it must be proved that the previous litigation was the public interest litigation not by way of a private grievance. It has to be bonafide litigation in respect of a right which is common and is agitated in common with others. (Para 19) The appeal is dismissed. (E-6) List of Cases cited: 1. Forward Construction Co. Vs Prabhai Mandal Andheri & ors. (Delivered by Hon'ble Chandra Kumar Rai, J.) 1. Heard Mr. B.L. Yadav and Mr. K.K. Kanojiya, learned counsel for the appellant and Mr. Prem Shanker Prasad, learned counsel for the respondent. 2. This is plaintiff's second appeal under Section 100 of Civil Procedure Code against the judgment and decree dated 07.08.1982 passed in Civil Appeal No.153 of 1980 arising out of original suit No.880 of 1976. 3. The present second appeal was admitted on 21.07.1983 but substantial question was not framed at that time.