# New India Assurance Co. Ltd v. Smt. Hardei & Anr

- **Citation:** (2023) 1 ILRA 1066
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-03
- **Case number:** First Appeal From Order No. 1673 of 2004
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-india-assurance-co-ltd-v-smt-hardei-anr-49299
- **Pages:** 5

## Headnote

Civil Law - The Employee's Compensation
Act, 1923 - Section - 30 : - Insurers Appeal -
against Award passed by the Workmen's
compensation Commissioner - claim Application
- Award - Substantial Question of Law -
Insurance Co. taken plea on the basis of
St.ment of owner of vehicle that death would
not be taken to be caused arising out of his
employment at the time of incident - the
workman Compensation Commissioner is the
last authority of fact - in the light of judgment of
Hon'ble Apex Court rendered in case of Golla
Rajan's & Mayan's - the High Court cannot enter
into the arena of facts unless they are proved to
be perverse as well as High court cannot
interfere unless there is a question of law is
involved - in the present appeal, so called
substantial question of law framed are question
of facts and the findings of the commissioner on
the said issues are not perverse - hence, so
called question of law framed by the insurance
Co. are answered against - therefore, this
appeal fails and dismissed - direction for
disbursement
of
awarded
amount,
accordingly.(Para - 11, 12, 13, 16)

Both Appeals are partly allowed. (E-11)
1 All. New India Assurance Co. Ltd. Vs. Smt. Hardei & Anr.
1067
List of Cases cited:

## Text

1066 INDIAN LAW REPORTS ALLAHABAD SERIES
deposited by the respondent-Insurance
Company within a period of 12 weeks from
today with interest at the rate of 7.5%. The
amount already deposited be deducted from
the amount to be deposited.

13. In view of the ratio laid down by
Hon'ble Gujarat High Court in case of Smt.
Hansagori P. Ladhani Vs. The Oriental
Insurance Company Ltd., reported in
2007 (2) GLH 291, the total amount of
interest, accrued on the principle amount of
compensation is to be apportioned on
financial year to financial year basis and if
the interest payable to claimant for any
financial
year
exceeds
Rs.
50,000/-,
Insurance Company/owner is/are entitled to
deduct appropriate amount under the head
of ''Tax Deducted at Source' as provided u/s
194A(3)(ix) of the Income Tax At, 1961
and if the amount of interest does not
exceeds Rs. 50,000/- in any financial year,
registry of the Tribunal is directed to allow
the claimant to withdraw the amount
without producing the certificate from the
concerned Income-Tax Authority. The
aforesaid view has been reiterated by this
High Court in Review Application No.1 of
2020 in First Appeal From Order No. 23 of
2001 (Smt. Sudesna and others Vs. Hari
Singh and another) and in First Appeal
From Order No. 2871 of 2016 (Tej Kumari
Sharma Vs. Chola Mandlam M.S. General
Insurance Co. Ltd.) decided on 19.03.2021
while disbursing the amount.

14. 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 Vs. Venugopal reported in 2012
(1) GLH (SC) 442, the order of investment
is not passed because respondents are
neither illiterate nor rustic villagers.

15. This Court is thankful to both the
counsels for getting this matter disposed of.
----------
(2023) 1 ILRA 1066
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2022

BEFORE

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

First Appeal From Order No. 1673 of 2004

New India Assurance Co. Ltd. ...Appellant
Versus
Smt. Hardei & Anr. ...Respondents

Counsel for the Appellant:
Sri S.C. Srivastava

Counsel for the Respondents:
Sri S.M. Khalid

Civil Law - The Employee's Compensation
Act, 1923 - Section - 30 : - Insurers Appeal -
against Award passed by the Workmen's
compensation Commissioner - claim Application
- Award - Substantial Question of Law -
Insurance Co. taken plea on the basis of
St.ment of owner of vehicle that death would
not be taken to be caused arising out of his
employment at the time of incident - the
workman Compensation Commissioner is the
last authority of fact - in the light of judgment of
Hon'ble Apex Court rendered in case of Golla
Rajan's & Mayan's - the High Court cannot enter
into the arena of facts unless they are proved to
be perverse as well as High court cannot
interfere unless there is a question of law is
involved - in the present appeal, so called
substantial question of law framed are question
of facts and the findings of the commissioner on
the said issues are not perverse - hence, so
called question of law framed by the insurance
Co. are answered against - therefore, this
appeal fails and dismissed - direction for
disbursement
of
awarded
amount,
accordingly.(Para - 11, 12, 13, 16)

Both Appeals are partly allowed. (E-11)
1 All. New India Assurance Co. Ltd. Vs. Smt. Hardei & Anr.
1067
List of Cases cited:

1. North East Karnataka Road Transport Corp.
Vs Smt. Sujatha (Civil Appeal No.7470 of 2009,
decided on Dt. 02.11.2018),

2. ESIC Vs S. Prasad (FAFO No. 1070 of 1993
Decided on Dt. 26.10.2017),

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

4. Mayan Vs Mustafa & anr., 2022 ACJ 524,

5. Salim Vr. New India Assurance Co. Ltd. & anr.,
2022 ACJ 526,

6. Shahajahan & anr. Vs M/s Shri Ram Gen.
Insruance Co. Ltd. & anr. (2021 vol. 4 T.A.C. 687
SC),

7. Rita Devi Vs New India Assurance Co. Ltd.,
LAWS (SC) 2000 499,

8. Mukund Dewangan Vs Oriental Insurance Co.
Ltd., AIR 2017 SC 3668.

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

1. Heard learned counsel for the
appellant-New India Assurance Co. Ltd.

2. By way of this appeal, the appellant
has challenged the judgment and award
dated 31.3.2004 passed by Workmen's
Compensation Commissioner, Bareilly, in
Case No.156/ WCA/ 2002 awarding
compensation of Rs.3,06,620/-.

3. Learned Counsel for the appellant -
Insurance Company submits that according
to the statement of the owner, deceased had
taken the vehicle to the workshop for
repairing and servicing but he had taken the
vehicle in question to Delhi and Meerut
with other five persons without his
permission and as such his death would not
be taken to be caused arising out of and in
the course of his employment at the time of
accident. The driver had licence to drive
only motorcycle and LMV (Pvt.) whereas
jeep was insured for taxi purposes and as
such it was driven in violation of policy.

4. Learned Counsel for the claimant -
respondent submits that the deceased
Charan Singh Yadav was engaged as Driver
with the vehicle no. UP-25-J/2228 owned
by respondent no.2 and was murdered
during course of his employment on
19.8.2002. The vehicle was insured with
the company of appellant for which the
learned Tribunal decided the issue no.4
recording that on the day of incident the
vehicle was insured as the vehicle was
insured since 20.3.2002 to 19.3.2003.

5. It is submitted by learned Counsel
for appellant that on the day of incident the
deceased was not having valid and effective
driving license for which issue no.5
decided against appellant. The finding that
deceased
died
during
course
of
employment for which issue no.1 was
decided in favour claimants is against the
evidence led before the Commissioner.

6. It is further submitted by learned
Counsel for the appellant that the learned
Tribunal considering material evidence
available on record partly allowed the
claim of claimant by judgment and order
dated 31.3.2004 awarding amount of Rs.
3,06,620/- with interest and erroneously
fixed liability on the appellant. The learned
Tribunal while partly allowing the claim of
claimant - respondent no.1, came to the
conclusion that the claimant was entitled
for compensation as claimed by the widow.

7. On perusal of memo of appeal, this
Court finds that following substantial
questions of law have been framed by the
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant. This Court while admitting the
appeal did not stipulate on what question of
law the appeal was admitted. This Court
thinks
it
appropriate
to
decide
the
substantial question of law as framed by
appellant. The substantial questions of law
are as under:-

"
(a)
Whether
the
learned
Commissioner has committed error of law
in awarding compensation ignoring the
statement of the owner of the vehicle
(employer) to the effect that he had only
permitted the decease to take the vehicle in
question to the workshop for repairing and
servicing and not for leisure tour of Delhi
and Meerut etc. which was without his
permission?

(b) Whether the death of the Driver
was deemed to be arising out of and in the
course of his employment?

(c) Whether the Driver had valid and
effective driving licence at the time of the
accident?

(d) Whether unless the bones found
are proved in the criminal court belongs to
the alleged deceased, no award could be
passed in favour of the claimant?"

8. At the outset, it is relevant to
discuss the scope of this Court to entertain
appeal against the award of Workmen's
Compensation Commissioner.

9. 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."

10. 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
1 All. New India Assurance Co. Ltd. Vs. Smt. Hardei & Anr.
1069
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. 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 re-appreciate the evidence and
recorded its own findings on percentage of
disability for which also there is no basis."

12. As far as present appeal is
concerned,
the
so
called
substantial
questions of law framed are questions of
facts and the findings of the Commissioner
on the said issues are not perverse. In view
of the decision of the Apex Court in North
East
Karnataka
Road
Transport
Corporation Case (Supra) and Golla
Rajanna
Etc.
Etc.
Vs.
Divisional
Manager and Another, 2017 (1) TAC 259
(SC)where also it has been held that under
Section 30 of the E.C. Act, 1923, the High
Court cannot enter into the arena of facts
unless they are proved to be perverse.

13. 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
Commissioner.
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 well
reasoned judgment of the Commissioner.

14. This Court is even fortified in its
view in Shahajahan and another Versus
M/s Shri Ram Gen. Insurance Company
Ltd. and another, 2021(4) T.A.C. 687 (
S.C.) as it is proved that the claimant was
employee of the employer and was engaged
as a driver.

15. As far as question of law at (a) is
concerned, it is immaterial whether the
deceased took the vehicle to the workshop
for repairing. He was in employment and
during the employment, death arose out of
and in the course of his employment. This
is a finding of fact based on the evidence
led before the court below. Hence, this
being question of fact in view of the
judgment of the Apex Court where no
perversity is pointed out as the owner did
not dispute the fact that deceased was his
employee. This Court under Section 30
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot delve into this disputed question of
fact which has been decided by the
Commissioner which is first court of fact.
The owner, who has been examined as
DW1, had put the vehicle at the command
of the deceased, who was in employment.
Charan Singh was done to death being on
duty which is proved before the court
below. The first information report also
mentions that on 19.8.2002 Charan Singh
was driver of the vehicle and had taken the
vehicle for getting it washed in the morning
at 9:00 a.m. This fact is corroborated by the
chargesheet
also.
The
deceased
was
murdered as he was kidnapped is a finding
of fact in issue no.1. In that view of the
matter, these being questions of fact and
proved that he was done to death by certain
elements, the judgment of the Apex Court
in Rita Devi Vs. New India Assurance Co.
Ltd., LAWS (SC) 2000 499, will apply to
the facts of this case. As far as the question
of breach of policy is concerned, the said
driving
licence
whether
had
an
endorsement or not is covered by the
judgment in Mukund Dewangan Vs.
Oriental Insurance Co. Ltd., AIR 2017 SC
3668. It is nobody case that the vehicle was
run as taxi quota vehicle. As far as issue no.
(c) is concerned, the learned Commissioner
while deciding issue no.5 has decided this
factual data against the appellant. I concur
with the same for the reasons assigned
herein above and on the basis of the
judgment of the Apex Court in Mukund
Dewangan (supra). As in issue no.5, it is
proved that the vehicle was insured and the
driver was insured and the driver had a
driving licence. They had even contended
that the driving licence was valid but there
was no endorsement. As far as substantial
question of law is concerned, the postmortem report and the F.I.R. categorically
proves that it was Charan Singh dead-body
and there is no need to wait for the decision
of criminal court once the Commissioner
was satisfied on the facts of the case that
Charan Singh was done to death.

16. In that view of the matter this
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.

17. Interim relief shall stand vacated
forthwith. The Registry will forward this
order to the W.C. Commissioner who shall
immediately summon the claimants and
disburse the amount kept in fixed deposit
with interest accrued on the said amount till
date within 30 days from today.
----------
(2023) 1 ILRA 1070
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 2239 of 2022

Smt. Shajia & Anr. ...Appellants
Versus
Munazir Ali & Ors. ...Respondents

Counsel for the Appellants:
Sri Ajay Kumar Singh Yadav, Sri Divyansh

Counsel for the Respondents:
--

Civil Law - Civil Procedure Code, 1908 -
Order 7 Rule 11 - Section - 96 - Limitation
Act, 1963 - Article 59: - Appeals - against
order of lower appellate court - Original suit for
cancellation of sale-deed - wherein appellant
filed an application contending suit is time
barred since alleged sale deed was executed in
year 2006 but he challenged in year 2012 - Trial
court rejected the Suit being time barred by