RAJINDER SINGH Vs. MALKI RAM

JUDGEMENT

(1.) THIS appeal against the order of the Commissioner under Workmen's Compensation Act dated 17th April, 1975 arises out of the following facts:

(2.) ON an application by Respondent Malki Ram for grant of compensation under the Workmen's Compensation Act, 1923 (Act VIII of 23)(hereinafter referred to as 'the Act' for short) in his favour on the grounds that he was an employee of the Appellant in his oil extraction machine and while working on the machine on 14 -2 -1973 he met with an accident when he was directed by the Appellant to take out oil -cakes from the Kohlu. It was further alleged that while he was taking out the oil -cakes from the Kohlu, his hand was struck by Lath as a result of which the accident occurred and his right hand got injured severely. He further stated that his monthly earnings were Rs. 200/ - and on account of the accident, he was not likely to earn anything and that he had his wife and old parents dependent on him and therefore prayed for grant of adequate compensation under the Act. The Appellant on appearing before the Commissioner denied that the Respondent was working under him or that he was his employer. He denied that any accident took place on the machine on the relevant date. He further alleged that if at all any accident had taken place in which the Respondent received injuries, it was because the Respondent had come to the machine to steal some oil -cakes and was at the relevant time under the influence of alcohol. He denied that the Respondent was being paid Rs. 200/ - per month by him. He alleged that the machine belonged to his father -in -law and he had nothing to do with it and that the machine was not run under his supervision and was not under his control. The parties were put to evidence. The Respondent produced Dr. V.K. Pachnanda Orthopaedic Surgeon, Mangu, Beli Ram, Kanshi Ram Bachitru and the Respondent examined S. Chet Singh, Behari Lal, Sansar Chand, Joginder Lal, Kirpal Singh clerk and Raghunath Dass. Both parties also were examined as their own witnesses. On the appreciation of evidence, the learned Commissioner came to the following conclusion:

(3.) THE first question to be tackled in this appeal was whether under the circumstances and on the facts of the case, an appeal would lie under Section 30 of the Act, Section 30 of the Act enumerates from (a) to (e) the cases in which an appeal was permissible to be filed in the High Court against the order of the Commissioner. Sub -clause (a) provides that an appeal would lie against an order awarding as compensation a lumpsum whether by way of redemption of a half monthly payment or otherwise or disallowing a claim in full or in part for a lumpsum amount. The first proviso to Section 30 however, provides that no appeal shall lie against any order unless a substantial question of law was involved. Obviously therefore the appeal would lie awarding compensation only on the ground that a substantial question of law was involved. The question, therefore, was as to what was the substantial question of law and whether any such question was involved in the present appeal. To me it appears that no question of law much less a substantial question of law is involved in the present appeal. All the questions determined by the Commissioner were questions of fact and involve no question of law. The Commissioner's decision is likely to be interfered with only when a substantial question of law is involved in the appeal. Misappreciation of evidence or insufficiency of evidence is not a question of law though the absence of evidence is. If the Commissioner refused to believe any evidence, it cannot be contended that he was bound as a matter of law to believe that evidence. It was held in, 1972 K. L.T. 132 that misappreciation of evidence vitiating the order under appeal, even if true, cannot be brought within the scope of proviso to Section 30 of the Act nor can be exaggerated into a substantial question of law. Findings of the Commissioner in the instant case which are based on pure appreciation of evidence led by both the parties before him, can't be challenged in the appeal in the High Court. Had the matter been decided in complete absence of evidence, a question of law would have arisen and the findings on that basis could have been challenged in appeal before the High Court. May be the High Court might arrive by itself at a different conclusion on the appreciation of evidence led by the parties but that was no ground to interfere with the findings of the Commissioner. In P.C. Abdulla Rutty v. Cheriyamparambath Janaki : A.I.R. 1953 Mad. 837 it has been laid down that the High Court will not interfere with the findings of fact arrived at by the Commissioner unless it is so opposed to the evidence or so perverse as to be brought into the category of law. In M.C. Shanthamallappa v. M.D. Chandappa Shetty, A.I.R. 1958 Mys. 116 the finding of the Commissioner that the accident arose out of and in the course of the deceased's employment was held to be prima facie a finding of fact. Similarly in Jawala Prosad Agarwalla v. Bhola Routh, A.I.R. 1963 Ass 7 the question as to whether the person claiming compensation was employed under the Appellant or some other person was held to be a question of fact. In another case reported in K. Ramaswami Mudaliar v. Poongavanam : A.I.R. 1954 Mad. 218 the question as to whether a person is a workman or not has been held to be a question of fact and further held that there can be no appeal on this point. In P.C. Abdulla Kutty v. Cheriyamparambath Tanaki : A.I.R. 1953 Mad. 837 the question as to what were the wages being earned by the person claiming the compensation was also held to be a question of fact and it was further held that the finding on the quantum of wages cannot be disturbed in appeal.