# New India Assurance Co. Ltd v. Smt. Leela Devi & Ors. 638 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 5 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-18
- **Case number:** First Appeal From Order No. 10 of 1993
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-india-assurance-co-ltd-v-smt-leela-devi-ors-638-indian-law-reports-48565
- **Pages:** 5

## Headnote

Civil Law - Workman Compensation
Act, 1923 - claimant husband was a
driver and employed by respondent no.
7,
who
passed
away
due
to
employment injuries - owner in reply
before the Commissioner took stand
that they had immediately intimated
the
insurance
company
about
accidental death of its employee -
finding of fact is that the deceased was
an
employee
who
had
sustained
employment injury and died - law is
well
settled
that
where
employer
intimates
the
amount
must
be
disbursed within one month of incident
- Commissioner has dealt exclusively
and given cogent reasons for grant of
interest and penalty as per Section 4A
of the Act - substantial questions of
law raised by Insurance company are
questions of fact (Para 10, 11)
Dismissed. (E-5)

List of Cases cited:

## Text

5 All. New India Assurance Co. Ltd. Vs. Smt. Leela Devi & Ors.
637
the doctor has opined that linear tear seen on
posterolateral side of hymen.

28. It is accordingly held that evidence
of victim is supported by medical testimony.

29. Learned Amicus Curiae for the
appellant submitted that there is five days'
unexplained delay in lodgement of F.I.R.,
hence prosecution story is doubtful. I am
unable to accept this contention of learned
Amicus Curiae because victim, her father and
relatives are illiterate persons belonging to
labour class. Promptness in lodgement of
F.I.R. cannot be expected from them.
Moreover matter pertains to rape wherein
parties normally immediately don't rush to
police station to save their social prestige.

30. In view of the above, contention of
learned Amicus Curiae with regard to delay
in lodgement of F.I.R. is rejected.

31. Learned Amicus Curiae eloquently
argued that victim has gone for grass-cutting.
She was having weapon so she should have
inflicted injury upon appellant. There is no
sign of resistance by the victim. I am unable
to agree with the aforesaid contention
because victim is a rustic village lady.
Appellant committed rape at the point of
knife, so this contention of learned Amicus
Curiae is also unsustainable and is rejected.

32. The upshot of the above discussion
is that the prosecution has established its case
beyond
reasonable
doubt
against
the
appellant, Chandhari@Chandradhari.

33. The impugned judgment and order
passed by lower court is within four corners
of law. There is no illegality in the judgment
and order dated 07.03.1998 passed by
Sessions Judge, Azamgarh in Sessions Trial
No.
722
of
1997,
State
Vs.
Chandhari@Chandradhari arising out of
Crime No. 249 of 1997 under Section 376
I.P.C., P.S. Kandharapur, District, Azamgarh
whereby learned Sessions Judge, Azamgarh
has
convicted
the
appellant,
Chandhari@Chandradhari under Section 376
I.P.C. and sentenced him to undergo
Rigorous Imprisonment for a period of ten
years and pay a fine of Rs. 2,000/- and in
default of payment of fine, to suffer six
months further Rigorous Imprisonment and
the same is hereby confirmed. Appeal lacks
merit and is liable to be dismissed.

34. Accordingly, this appeal is
dismissed.

35. The assistance rendered by Sri
Krishna Manohar Tiwari, learned Amicus
Curiae for the appellant is appreciable and his
fee is assessed Rs. 10,000/-.

36. Registry of this Court is directed to
pay Rs. 10,000/- to Sri Krishna Manohar
Tiwari, learned Amicus Curiae for the
appellant for his assistance.

37. Copy of this judgment be certified
to the court below for compliance. Lower
court record be transmitted to the District
Court concerned forthwith.
----------
(2022)05ILR A637
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

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

First Appeal From Order No. 10 of 1993

New India Assurance Co. Ltd. ...Appellant
Versus
Smt. Leela Devi & Ors. ...Respondents
638 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Rajesh Ji Verma, Sri Kamal Dev Rai, Sri
Shri Prakash Pal

Counsel for the Respondents:
Smt. Aradhana Chauhan, Sri A.K. Singh, Sri
Ajeet Kumar Singh

Civil Law - Workman Compensation
Act, 1923 - claimant husband was a
driver and employed by respondent no.
7,
who
passed
away
due
to
employment injuries - owner in reply
before the Commissioner took stand
that they had immediately intimated
the
insurance
company
about
accidental death of its employee -
finding of fact is that the deceased was
an
employee
who
had
sustained
employment injury and died - law is
well
settled
that
where
employer
intimates
the
amount
must
be
disbursed within one month of incident
- Commissioner has dealt exclusively
and given cogent reasons for grant of
interest and penalty as per Section 4A
of the Act - substantial questions of
law raised by Insurance company are
questions of fact (Para 10, 11)
Dismissed. (E-5)

List of Cases cited:

1. Oriental Insurance Co. Ltd. Vs Siby George &
ors., 2012 (4) T.A.C. 4 (S.C.)

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

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

4. E.S.I.C. Vs S. Prasad . F.A.F.O. 1070 of 1993
decided on 26.10.2017

5. Mackinnon Machenzie Vs Ibrahim Mahmmed
Issak, (1969) 2 SCC 607

6. Regional Director, E.S.I. Corp. Vs Francis De
Costa, (1996) 6 SCC 1
7. Malikarjuna G. Hiremath Vs Branch Manager,
Oriental Insurance Co. Ltd., (2009) 13 SCC 405

8.
Shakuntala
Chandrakant
Shreshti
Vs
Prabhakar Maruti Garvali, (2007) 11 SCC 668

9. Laxmanrao Vs Maharashtra State Electricity
Board, 2015 ACJ 2509

10. Mewar Textile Mills Vs Kushali Bai, (1960) II
LLJ 369

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

1. Heard learned counsel for the
appellant.
None
present
for
the
respondents.

2. This is one more classic case where
insurance company has challenged meagre
amount granted to heir of deceased
employee a truck driver for accident which
occurred on 13.04.1990. Accident having
taken place and causing death of employee
and compensation awarded is not in
dispute.

3. The appellant has challenged the
order dated 07.10.1992 of the Workmans
Compensation Commissioner, Etwah under
Workman
Compensation
Act,
1923
(referred as ''Act') whereby compensation
of Rs.69,984.60/- has been awarded to
claimant/respondent for death of her
husband who was a driver and employed by
respondent no. 7 and 8 herein passed away
due to employment injuries.

4. The Insurance Co. has contended
that the deceased was not in employment of
the appellant and therefore the appellant
company could not have been made liable
for payment of penalty, as the provisions of
Act does not saddle them with liability. It is
further submitted that no issue were framed
by the Commissioner before deciding the
5 All. New India Assurance Co. Ltd. Vs. Smt. Leela Devi & Ors.
639
matter and the owner did not raise any
demand

5. The submission of learned counsel
for Insurance Company that no issues were
framed is not accepted as about 6 issues
have been framed and have been decided in
seriation
by
Commissioner,
the
first
submission of the appellant fails. As far as
it relates to payment of penalty is
concerned, judgment of the Apex Court
titled as Oriental Insurance Co. Ltd. Vs.
Siby George and others, 2012 (4) T.A.C.
4 (S.C.) will not permit this Court to take a
different view then that taken by the
Commissioner. There need not be any
demand, however, the owner in reply
before the Commissioner has taken stand
that they had immediately intimated the
insurance company about accidental death
of its employee thus this aspect falls in
realm of disputed question of fact and not
law, the matter has been prolonged by the
Insurance Company a similar situation has
been lamented by the apex Court recently
in Golla Rajanna Etc. Etc. Vs. Divisional
Manager and Another, 2017 (1) TAC 259
(SC). The finding of fact is that the
deceased was an employee who had
sustained employment injury and died.

6. 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."

7. 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
640 INDIAN LAW REPORTS ALLAHABAD SERIES
"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."

8. In Mackinnon Machenzie v.
Ibrahim Mahmmed Issak, (1969) 2 SCC
607, Regional Director, E.S.I. Corporation
v. Francis De Costa, (1996) 6 SCC 1,
Malikarjuna
G.
Hiremath
v.
Branch
Manager, Oriental Insurance Co. Ltd.,
(2009)
13
SCC
405,
Shakuntala
Chandrakant Shreshti v. Prabhakar Maruti
Garvali, (2007) 11 SCC 668, Laxmanrao v.
Maharashtra State Electricity Board, 2015
ACJ 2509 and Mewar Textile Mills v.
Kushali Bai, (1960) II LLJ 369 similar
view is taken.

9. Going by the factual scenario, the
deceased was in employment when the
incident occurred. The award dated 7th
October, 1992 goes on the premise that death
occurred during course of employment.
While going through the record, it is very
clear that this appeal will have to fail and,
accordingly, it is held that the deceased died
due to employment injuries.

10. The person was covered by
insurance which fact is proved, he need not
be employee of insurance company. The law
is well settled that where employer intimates
the amount must be disbursed within one
month of incident. Just becauise separate
issue is not framed qua payment of interest
and penalty will not vitiate the entire order as
issue no. 6 relates to what compensation is
payable. The Commissioner has dealt
exclusively and given cogent reasons for
grant of interest and penalty as per Section
4A of the Act which reads as follows:

"[4A. Compensation to be paid
when due and penalty for default.--(1)
Compensation under section 4 shall be paid
as soon as it falls due.

(2) In cases where the employer
does not accept the liability for compensation
to the extent claimed, he shall be bound to
make provisional payment based on the
extent of liability which he accepts, and, such
payment shall be deposited with the
Commissioner or made to the1[employee], as
the case may be, without prejudice to the
right of the 1[employee] to make any further
claim.

3[(3) Where any employer is in
default in paying the compensation due under
this Act within one month from the date it fell
due, the Commissioner shall--

(a) direct that the employer shall, in
addition to the amount of the arrears, pay
simple interest thereon at the rate of twelve
per cent. per annum or at such higher, rate
not exceeding the maximum of the lending
rates of any scheduled bank as may be
specified by the Central Government by
notification in the Official Gazette, on the
amount due; and

(b) if, in his opinion, there is no
justification for the delay, direct that the
employer shall, in addition to the amount of
the arrears and interest thereon, pay a
further sum not exceeding fifty per cent. of
such amount by way of penalty:"

Thus, the right of claimant can
not defeated and this Court concurs with
the
same.
5 All. Employee's State Insurance Corp., Alld. Vs. Jagdish Prasad
641

11. 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
questions of fact.

12. Interim relief, if any, shall stand
vacated forthwith.

13. This court records the absence of
learned counsels for the respondents. The
penalty if not deposited be deposited
forthwith.

14. This Court is thankful to learned
counsel for the appellant for getting this
very old matter disposed off.

15. The record be transmitted to the
Workmen Commissioner.

16. The amount lying in the fixed
deposits will be disbursed to the claimants
immediately as more than 30 years have
elapsed since the appeal was preferred. As
none represent respondent, no litigation
expenses are awarded.
----------
(2022)05ILR A641
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

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

First Appeal From Order No. 103 of 2001

Employee's State Insurance Corp., Alld.
 ...Appellant
Versus
Jagdish Prasad ...Respondent

Counsel for the Appellant:
Sri A.K. Srivastava, Sri Vipul Kumar
Counsel for the Respondent:
Sri M. jain, Sri Mritujaya

Employees' State Insurance Act, 1948 -
Uttar
Pradesh
Employees'
Insurance
Courts Rules, 1952 - Rule 47 - Civil
Procedure 1908 (V of 1908), Order 13
Rule 4 CPC - Indian Evidence Act, 1872 -
Sections 62 & 63 - Secondary Evidence -
Manner of proof - objection as to the
mode of proof of a document - Sole
respondent sustained an injury to his left
eye during the course of employment -
Before E.S.I. Court employee relied upon
photostat copies of medical certificates &
treatment papers to establish that the
employment injury had led a permanent
dimming of vision in the left eye -
originals
of
those
certificates
and
treatment papers have not been filed - No
objection raised before the E.S.I. Court
about the admissibility of photostat copies
of medical certificates - Held
- an
objection about admissibility of secondary
evidence must be taken before the Court
of first instance, where the secondary
evidence is filed without foundation - If
that objection is not taken before the
Court, where the evidence is filed on
behalf of a party, it cannot be later on
urged in appeal - If no objection as to
admissibility of photostat copy of the
prescription slips showing treatment of
the employee to substantiate the claim of
permanent disablement, is raised before
the E.S.I. Court, same cannot be permitted
to be raised before High Court on ground
that primary evidence ought to have been
filed (Para 9, 15, 21)
employee
produced
not
only
just
prescription slips about his treatment, but
also medical certificates from the eye
specialist
signed
by
the
Medical
Superintendent,
Employees
State
Insurance Hospital and treatment papers
to establish that employment injury had
led to a permanent dimming of vision in
the left eye - treatment was undergone by
the employee at the E.S.I. Hospital,
Lucknow and is contemporaneous in time
to the injury. There is a further report by