SMT. T.S. SHYLAJAversusORIENTAL INSURANCE CO. & ANR.

                     [2014] 1 S.C.R. 35


                    SMT. T.S. SHYLAJA                            A
                             v.
           ORIENTAL INSURANCE CO. & ANR.
              (Civil Appeal No. 51 of 2014)
                     JANUARY 3, 2014
                                                                 B
       [T.S. THAKUR AND VIKRAMAJIT SEN, JJ.]

    Workmen's Compensation Act, 1923:

     s. 30, first proviso - Substantial question of law - Appeal c
before High Court against order of Commissioner awarding
compensation - Held: In terms of the 1st proviso, no appeal
is maintainable against any order passed by Commissioner
unless a substantial question of law is involved - In the instant
case, High Court has neither referred to nor determined any
                                                                  0
question of law much less a substantial question of law
existence whereof was a condition precedent for
maintainability of an appeal u/s 30 - Inasmuch as the High
court remained oblivious of the basic requirement of law for
maintainability of an appeal before it and inasmuch as it
treated the appeal to be one on facts, it committed an error E
which needs to be corrected.

     Claim petition - Death of a driver - Commissioner
awarding compensation - High Court setting aside the award
holding that relationship of employer and employee was not       F
proved - Held: Commissioner had recorded a finding of fact
that deceased was employed as a driver by owner of vehicle
no matter the owner happened to be his brother- That finding
could not be lightly interfered with or reversed by High Court
- The order of High Court is set aside and that passed by        G
Commissioner restored.

    A vehicle being driven by the appellant's son collided
with another vehicle, resulting in his death. The
                              35                                 H
    36      SUPREME COURT REPORTS             [2014] 1 S.C.R.


A Commission for Workmen's Compensation allowed a
  compensation of Rs.4,48,000/-. However, the High Court
  in the appeal filed by the insurer held that the relationship
  between the deceased and his brother the owner of the
  vehicle he was driving was not satisfactorily proved to
B be that of an employee and an employer and that the only
  remedy was by way of a claim for payment of
  compensation under the Motor Vehicles Act. In the
  instant appeal filed by the mother of the deceased, it was
  contended that since no substantial question of law was
C involved in the case, High Court should not have
  entertained the appeal in view of the provisions of s. 30
  of the Workmen's Compensation Act, 1923(rechristened
  as Employee's Compensation Act, 1923).

         Allowing the appeal, the Court
D
      HELD: 1.1. In terms of the 1st proviso to s.30 of the
  Workmen's Compensation Act, 1923, no appeal is
  maintainable against any order passed by the
  Commissioner unless a substantial question of law is
E involved. This necessarily implies that the High Court
  would in the ordinary course formulate such a question
  or at least address the same in the judgment especially
  when it takes a view contrary to the view taken by the
  Commissioner. [para 8] [41-D-F]
F     1.2. In the case at hand, the Commissioner for
  Workmen's Compensation had appraised the evidence
  adduced before him and recorded a finding of fact that
  the deceased was indeed employed as a driver by the
  owner of the vehicle no matter the owner happened to
G be his brother. That finding could not be lightly interfered
  with or reversed by the High Court. The High Court
  overlooked the fact that the respondent-owner of the
  vehicle had appeared as a witness and clearly stated that
  the deceased was his younger brother, but was working
H as a paid driver under him. [para 9] [41-F-HJ
T.S. SHYLAJA v. ORIENTAL INSURANCE CO. & ANR.           37


    1.3. The High Court has neither referred to nor A
determined any question of law much less a substantial
question of law existence whereof was a condition
precedent for the maintainability of any appeal u/s 30.
Inasmuch as the High court remained oblivious of the
basic requirement of law for the maintainability of an B
appeal before it and inasmuch as it treated the appeal to
be one on facts, it committed an error which needs to be
corrected. [para 10} [43-A-CJ

     1.4. Besides, the only reason which the High Court
has given to upset the finding of the Commissioner is that C
the Commissioner could not blindly accept the oral
evidence without analysing the documentary evidence
on record. But it has not indicated as to what was the
documentary evidence which the Commissioner tlad
failed to appreciate and what was the contradiction, if D
any, between such documents and the version given by
the witnesses examined before the Commissioner. The
High Court could not have, without adverting to the
documents vaguely referred to by it have upset the
finding of fact which the Commissioner was entitled to E
record. [para 10} [42-F-H; 43-A]

    1.5. The order of the High Court is set aside and that
passed by the Commissioner restored. [para 11}

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 51         F
of 2014.

    From the Judgment & Order dated 25.03.2011 of the High
Court of Karnataka at Bangalore in MFA No. 738 of 2009 (WC).
                                                               G
   G.V. Chandrashekher, N.K.             Verma,     Anjana
Chandrashekar for the Appellant.

   Manish Pratap Singh, Ajay Singh, Dr. Nafis A. Siddiqui,
Debashhish M., for the Respondents.
                                                               H
    38       SUPREME COURT REPORTS               [2014) 1 S.C.R.


A        The Judgment of the Court was delivered by

         T.S. THAKUR, J. 1. Leave granted.
        2. The short question that falls for consideration in this
    appeal is whether the High Court was justified in setting aside
B   the order passed by the Commissioner for Workmen's
    Compensation holding the appellant entitled to an amount of
    Rs.4,48,000/- towards compensation with interest@ 12% per
    annum.

c        3. The claim before the Commissioner arose out of a
  motor accident in which the deceased-Prahlad lost his life while
  driving a Toyota Qualis vehicle bearing registration No.KA-02/
  C-423. The incident in question, it appears, occurred on 3rd
  September 2000 near Bidadi Police Station, on the Bangalore-
D Mysore highway involving a head on collision with a Tipper Lorry
   bearing No.KA-02-8-9135. The deceased was removed to the
   hospital where he died two days after the accident. A claim
   petition was then filed before the Commissioner for Workmen's
   Compensation, Bangalore Sub-Division-IV, Bangalore by the
   appellant, mother of the deceased for payment of
E
  compensation. The claim petition alleged that the deceased
  was employed as a driver on a monthly salary of Rs.6,000/- by
   the owner of the vehicle. The vehicle being insured with the
   respondent-company, the claimant sought recovery of the
   amount from the company in terms of provisions of the
F 'Workmen's Compensation Act, 1923, now re-christened as the
   Employee's Compensation Act, 1923. The insurance company
  1contested the claim primarily on the ground that the jural
  relationship of employer and employee did not exist between
  1the owner and the deceased. It was also contended that it was
G 1the negligence of the deceased that had caused the accident
  1thereby disentitling the claimant to any compensation.

         4. On the pleadings of the parties, the Commissioner
    lframed six issues for determination and eventually came to the
H   iconclusion that the deceased was indeed working as a paid
T.S. SHYLAJA v. ORIENTAL INSURANCE CO. & ANR.                   39.
                 [T.S. THAKUR, J.]
driver of the owner of the vehicle, Toyota Qualis and that the        A
claimant, the appellant herein was entitled to receive an amount
of Rs.4,48,000/- towards compensation having regard to the
fact that the deceased was just about 20 years of age at the
time of accident and was receiving Rs.4,000/- per month
towards salary. An award for the said amount was accordingly          B
made by the Commissioner with interest @12% per annum
against the respondent-company who had admittedly
underwritten the risk in terms of a policy issued by it.

     5. Aggrieved by the award made by the Commissioner,
the respondent-company preferred an appeal, {vl.F.A. No. 738          C
of 2009 before the High Court of Karnataka at Bangalore which
has been allowed by a Single Judge of that Court in terms of
the order impugned order before us. The High Court was of the
view that the relationship between the deceased and his brother
the owner of the vehicle he was driving was not satisfactorily        D
proved to be that of an employee and an employer and that the
only remedy which the appellant, mother of the deceased had,
was by way of a claim for payment of compensation under the
Motor Vehicles Act.
                                                                      E
     6. Appearing for the appellant Mr. G.V. Chandrashekhar,
learned counsel, strenuously argued that the High Court was
in error in entertaining the appeal and in reversing the view
taken by the Commissioner by re-appraising the evidence on
record. He urged that the High Court remained oblivious of the        F
provisions of Section 30(1) of the Act which clearly stipulate that
no appeal shall lie against. any order of t~e Commissioner
unless a substantial question of law fell for consideration. No
such question of law arose for consideration nor was the same
framed or addressed by the High Court in the course of the            G
judgment. The reasoning given by the High Court was,
according to the learned counsel, vague and based entirely on
surmises and conjectures hence unsustainable in law.

     7. Section 30 of the Employees Compensation Act, 1923
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    40          SUPREME COURT REPORTS              [2014] 1 S.C.R.


A no doubt provides for an appeal to the High Court from the
  orders passed by the Commissioner and enumerated in
  clauses (a) to (e) sub-Section (1) of Section 30. Proviso to
  Section 30(1 ), however, makes it abundantly clear that no such
  appeal shall lie unless a substantial question of law is involved
B in the appeal and in the case of an order other than an order
  such as is referred to in clause (b) unless the amount in dispute
  in the appeal is not less than three hundred rupees. Section
  30(1) reads as under:

         "30. Appeals.-
c
         (1) An appeal shall lie to the High Court from the following
         orders of a Commissioner, namely:-

         (a) an order as awarding as compensation a lump sum
D        whether by way of redemption of a half-monthly payment
         or otherwise or disallowing a claim in full or in part for a
         lump sum;

         1[(aa) an order awarding interest or penalty under section
         4A;]
E
         (b) an order refusing to allow redemption of a half-
         monthly payment;

         (c) an order providing for the distribution of compensation
         among the dependants of a deceased workman, or
F
         disallowing any claim of a person alleging himself to be
         such dependant;

         (d) an order allowing or disallowing any claim for the
         amount of an indemnity under the provisions of sub-
G        section (2) of section 12; or

         (e) an order refusing to register a memorandum of
         agreement or registering the same or providing for the
         registration of the same subject to conditions.
H
T.S. SHYLAJA v. ORIENTAL INSURANCE CO. & ANR. 41
                 [T.S. THAKUR, J.]
    Provided that no appeal shall lie against any order unless      A
    a substantial question of law is involved in the appeal,
    and in the case of an order other than an order such as
    is referred to in clause (b), unless the amount in dispute
    in the appeal is not less than three hundred rupees:
                                                                    B
    Provided further that no appeal shall lie in any case in
    which the parties have agreed to abide by the decision
    of the Commissioner, or in which the order of the
    Commissioner gives effect to an agreement come to by
    the parties:
                                                                    c
    Provided further that no appeal by an employer under
    clause (a) shall lie unless the memorandum of appeal
    is accompanied by a certificate by the Commissioner to
    the effect that the appellant has deposited with him the
    amount payable under the order appealed against."        D

     8. What is important is that in terms of the 1st proviso, no
appeal is maintainable against any order passed by the
Commissioner unless a substantial question of law is involved.
This necessarily implies that the High Court would in the           E
ordinary course formulate such a question or at least address
the same in the judgment especially when the High Court takes
a view contrary to. the view taken by the Commissioner.

     9. The Commissioner for Workmen's Compensation had,
in the case at hand, appraised the evidence adduced before          F
him and recorded a finding of fact that the deceased was
indeed employed as a driver by the owner of the vehicle no
matter the owner happened to be his brother. That finding could
not be lightly interfered with or reversed by the High Court. The
High Court overlooked the fact that the respondent-owner of the     G
vehicle had appeared as a witness and clearly stated that the
deceased was his younger brother, but was working as a paid
driver under him. The Commissioner had, in this regard,
observed:
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    42       SUPREME COURT REPORTS                [2014] 1 S.C.R.


A               "After examining the judgment of the Andhra
         Pradesh High Court relied upon by 2nd opponent it is
         seen that the owner of the vehicle being the sole witness
         has been unsuccessful in establishing his case but in this
         proceeding the owner of the vehicle has appeared before
B        this Court even though he is a relative of the deceased,
         and has submitted in his objections, even evidence that
         even though the deceased was his younger brother he
         was working as a driver under him, and has admitted that
         he was paying salary to him. The applicant in support of
c        his case has submitted Hon'ble High Court judgment
         reported in !LR 2006 KAR 518. The Divisional Manager,
         United India Insurance Company Ltd. Vs. Yel/appa
         Bheemappa Alagudi & Ors. which I have examined in
         depth which holds that there is no law that relatives cannot
         be in employer employee relationship. Therefore it is no
D
         possible to ignore the oral and documentary evidence
         in favour of the applicant and such evidence has to be
         weighed in favour of the applicant. For these reasons I
         hold that the deceased was working as driver under first
         opponent and driving Toyota Quails No.KA-02-C-423,
E        that he died in accident on 03. 09. 2005, that he is a
          'workman' as defined in the Workmen's Compensation
         Act and it is held that he has caused accident in the
         course of employment in a negligent fashion which has
          resulted in his death".
F
         10. The only reason which the High Court has given to
    wpset the above finding of the Commissioner is that the
    Commissioner could not blindly accept the oral evidence
    without analysing the documentary evidence on record. We fail
G   to appreciate as to what was the documentary evidence which
    the High Court had failed to appreciate and what was the
    oontradiction, if any, between such documents and the version
    given by the witnesses examined before the Commissioner.
     1




    The High Court could not have, without adverting to the
H   documents vaguely referred to by it have upset the finding of
T.S. SHYLAJA v. ORIENTAL INSURANCE CO. & ANR. 43
                 [T.S. THAKUR, J.]
fact which the Commissioner was entitled to record. Suffice it A
to say that apart from appreciation of evidence adduced before
the Commissioner the High Court has neither referred to nor
determined any question of law much less a substantial
question of law existence whereof was a condition precedent
for the maintainability of any appeal under Section 30. Inasmuch B
as the High court remained oblivious of the basic requirement
of law for the maintainability of an appeal before it and inasmuch
as it treated the appeal to be one on facts it committed an error
which needs to be corrected.

     11. We accordingly allow this appeal, set aside the order
                                                                c
of the High Court and resfore that passed by the Commissioner.
We grant three months' time to the respondent to deposit the
amount of compensation together with interest, if not already
paid or deposited failing which the appellant shall be free to
seek redress before the Commissioner for recovery of the 0
amount awarded in her favour. No costs.
R.P.                                         Appeal allowed.