VIJAY RAM Vs. JANAK RAJ

JUDGEMENT

(1.) THIS is employer's appeal against an order of Assistant Labour Commissioner, Udhampur, with powers of Commissioner under the Workmen's Compensation Act, 1923 hereinafter called the Act, awarding a sum of Rs. 2,490/ -, i.e., Rs. 1,260/ - on account of compensation for permanent partial disability under Section 4 of the Act, Rs. 630/ - on account of compensation under Section 4 -A of the Act and Rs. 300/ - on account of costs in favour of the workman Respondent.

(2.) THE Respondent brought an application against the Appellant alleging that while he was working as a Mistry under him in his workshop at Salal, he fell from a height of 24 feet and thereby sustained an injury resulting in the fracture of his right leg. He also enclosed with it a medical certificate as well as a Skiagram showing fracture of his right femur. Notice of this application was given to the Appellant who appeared and filed his objections on 19.4.1973 denying either that the Respondent was his employee or that he had sustained any injury. During the proceedings, the Appellant did not accept the Doctor's opinion as contained in the certificate appended to the application showing 40 percent permanent residual disability and insisted for the Respondent's examination by a Medical Board. This prayer was granted and the Respondent was got examined by a board consisting of three doctors. The board also found that there was fracture of his right femur, which in its opinion had resulted in only 10 percent of the Respondent's permanent partial disability. The Commissioner gave opportunity to the parties to lead evidence. Whereas the Respondent examined a few witnesses, the Appellant remained content with the statement of his partner Baboo Ram being brought on the record. The Commissioner, on consideration of the evidence, allowed the Respondent's claim and passed the award impugned in the appeal.

(3.) SO far as the first ground is concerned, I find it totally baseless. There is a categorical finding of fact recorded by the Commissioner on appreciation of evidence on the record that the Respondent had been employed as a Mistry by the Appellant and his wages had been fixed at Rs. 13/ - per day. He has further found that the accident took place while the Respondent was working as a Mistry in the Appellant's workshop. Whether or not the Respondent was employed by the Appellant, and whether or not the accident resulting in the fracture of his leg took place during the course of his employment, were all questions of fact on which no appeal lay under Section 30 of the Act, which clearly restricts the right of appeal to a substantial question of law only. Where on a particular point there is evidence far and against a finding -recorded by the Commissioner on taking a particular view of the evidence, it cannot be questioned howsoever erroneous that rinding may be, as no question of law can be said to have arisen in such a case. Where, however, a rinding of fact is based upon no evidence at all a substantial question of law arises and an appeal under Section 30 is competent. A similar view appears to have been taken by Calcutta High Court in Bhushan Chandra Ghost v. George Henderson and Co. : A.I.R. 1929 Cal. 774. In the present case the findings recorded by the Commissioner being based upon evidence, are not open to question merely because the Commissioner has not appreciated the evidence correctly or that a different conclusion is also possible on appreciation of the same evidence.