# Jagdish Prasad v. E.S.I.C. (U.P. Region) Sarvodaya Nagar, Kanpur

- **Citation:** (2022) 12 ILRA 221
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-20
- **Case number:** First Appeal From Order No. 859 of 2009
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-prasad-v-e-s-i-c-u-p-region-sarvodaya-nagar-kanpur-48003
- **Pages:** 3

## Headnote

Civil Law - Employees' State Insurance
Act, 1948 - An appeal lie to the High Court
from an order of an Employees' Insurance
Court if it involves a substantial question
of law - Appeal is firstly heard on the
question of admission with a view to find
out
as
to
whether
it
involves
any
substantial question of law or not - 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
- In the instant case the appellantemployee sustained employment injury on
31.12.1987 in his right ear - Commissioner
gave cogent reasons & held that he had
suffered 40% of deafness but rated at
30% for loss for earning capacity - Held -
Questions raised are the questions of fact
and not of law - Appeal dismissed

Dismissed. (E-5)

List of Cases cited:

## Text

12 All. Jagdish Prasad Vs. E.S.I.C. (U.P. Region) Sarvodaya Nagar, Kanpur
221
----------
(2022) 12 ILRA 221
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

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

First Appeal From Order No. 859 of 2009

Jagdish Prasad ...Appellant
Versus
E.S.I.C. (U.P. Region) Sarvodaya Nagar,
Kanpur ...Respondent

Counsel for the Appellant:
Sri Indra Mani Tripathi

Counsel for the Respondent:
Sri Rajesh Tewari

Civil Law - Employees' State Insurance
Act, 1948 - An appeal lie to the High Court
from an order of an Employees' Insurance
Court if it involves a substantial question
of law - Appeal is firstly heard on the
question of admission with a view to find
out
as
to
whether
it
involves
any
substantial question of law or not - 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
- In the instant case the appellantemployee sustained employment injury on
31.12.1987 in his right ear - Commissioner
gave cogent reasons & held that he had
suffered 40% of deafness but rated at
30% for loss for earning capacity - Held -
Questions raised are the questions of fact
and not of law - Appeal dismissed

Dismissed. (E-5)

List of Cases cited:

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

2. E.S.I.C. Vs S. Prasad F.A.F.O. 1070 of 1993 dt
26.10.2017

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

1. Heard Sri Indra Mani Tripathi,
learned counsel for the appellant and Sri
Rajesh Tewari, learned counsel for the
respondents.

2. By way of this appeal under
Section 30 of the Employees' State
Insurance Act, 1948, the appellant who is
an employee has challenged the finding by
the Apellate Court in Appeal No. 261 of
1988 awarding loss of earning capacity at
30%.

3. The main bone of contention is that
appellant-employee sustained employment
injury on 31.12.1987 in his right ear. The
respondent had an obligatory duty to provide
for the loss but they did not provie for the
same. The appellant suffered disablement
and was not able to work. The appellant
according to him was mentally pressurized
and his loss of hearing capacity was 40 dots
and loss of earning capacity was same but
Commissioner has not properly evaluated
the same. It is further submitted that at the
time of accident occurred and he was
sustained injury he was aged 35 years of
age. The award of the E.S.I court is assailed
and it is contended that this is an error which
is apparent on the face of record. It is further
submitted that the appellant was hospitalized
for 10 days and the medical board did not
hold him to be suffering from any loss, so he
moved to Appellate Court.
222 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The judgement of the First
Appellate Court is sought to be sustained
by the counsel for the respondents.

5. The order challenged has been
properly scrutinized by the court below.
The fact that the Commissioner has given
cogent reasons that he had suffered 40% of
deafness but therefore, it would be rated at
30% for loss for earning capacity.

6. The appeal under Workmen
Compensation
Act/Employees
State
Insurance Act has to be viewed very
seriously in view of the judgment in Golla
Rajanna Etc. Etc. Vs. Divisional Manager
and Another, 2017 (1) TAC 259 (SC).

7. I am 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."

8. This Court, recently in F.A.F.O. 1070
of 1993 (E.S.I.C. Vs. S. Prasad) decided on
26.10.2017 has followed the decision in
Golla Rajana (Supra) and 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 reappreciate the evidence and recorded its own
findings on percentage of disability for which
also there is no basis."

9. In view of the above, the appeal
fails and is dismissed. The questions of law
framed are answered against appellant. In
fact the questions raised are the questions
of
fact
and
not
of
law.
12 All. Reliance General Insurance Co. Ltd. NOIDA Vs. Smt. Pushpa Rani & Ors.
223

10. This Court is thankful to both the
learned counsels for ably assisting this
Court.

11. Interim relief, if any, shall stand
vacated forthwith. The amount be disbursed
to the claimant forthwith.
----------
(2022) 12 ILRA 223
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 1177 of 2022
And
First Appeal From Order No. 3233 of 2019

Reliance
General
Insurance
Co.
Ltd.
NOIDA ...Appellant
Versus
Smt. Pushpa Rani & Ors. ...Respondents

Counsel for the Appellant:
Sri Saurabh Srivastava

Counsel for the Respondents:
Sri Dharmendra Kumar Gupta, Smt. Kiran
Gupta

Civil Law - Motor Accident - Motor
Vehicles Act, 1988 - Section 166 - Claim
petition - Contributory Negligence -
Pleadings & Proof - It is settled in law
that evidence cannot be read in absence
of pleading - Case of the claimants was
that deceased was standing on the road
when he was hit by the Tempo being
driven by its driver rashly and negligently
due
to
which
he
died
-
Insurance
Company filed written statement only
contending interalia that there was no
negligence of the driver of the offending
Tempo - Tribunal held that the deceased
abruptly came infront of the Tempo due to
which
the
accident
occurred
&
apportioned the negligence of the driver
of the Tempo to the extent of 60% and
that of deceased to the extent of 40% -
claimants challenged the award on the
ground that finding of the Tribunal that
there was contributory negligence of the
deceased in the accident is illegal - Held -
Neither the insurance company nor the
owner of the Tempo stated in the written
statement that the deceased had come
abruptly infront of the Tempo due to
which the accident had occurred - In the
absence of any case set up by the owner
or the insurance company that deceased
came infront of the Tempo abruptly which
caused the accident, it was not open to
the Tribunal to rely upon the testimony of
D.W.1/driver who stated that the accident
had occurred as the deceased suddenly
came infront of the Tempo - It is settled in
law that evidence cannot be read in
absence of pleading - Tribunal erred in law
in carving out a new case on its own and
return a finding that the deceased was
also negligent in the accident as he came
abruptly before the Tempo - Finding of the
Tribunal holding the negligence of the
deceased to the extent of 40% is perverse
and illegal and is not supported by any
evidence
on
record
-
said
finding
accordingly, set aside (24, 25, 27)

Allowed. (E-5)

List of Cases cited:

1 National Insurance Co. Ltd. Vs Pranay Sethi &
ors. 2017 (16) SCC 680.

2. Sarla Verma & ors. Vs Delhi Transport
Corporation & ors. 2009 (6) SCC 121

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
appellant-insurance company and learned
counsel for the claimants/respondents.

2. Since, these two appeals are arising
out of same accident and involve common
issues, therefore, both the appeals are being