Abdul Gafoor V.P. v. O. Ramesh and The New India Assurance Co. Ltd. and Bindu

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936 RP.No. 1030 of 2013 () IN MFA.(WCC) 218/2009 ---------------------------------------- MFA (WCC) NO. 218/2009 of HIGH COURT OF KERALA WC NO.125/2004 OF COMMISSIONER FOR WORKMEN'S COMPENSATION, KOZHIKODE ## REVIEW PETITIONER(S)/APPELLANT: ---------------------------------------- ABDUL GAFOOR V.P., SON OF MOHAMED V.P., VALIYAPARAMBATHU HOUSE, P.O.GURUVAYRAPPAN COLLEGE P.O., KOZHIKODE. BY ADVS.SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S)/RESPONDENTS: ---------------------------- 1. O.RAMESH, SON OF CHANDUKUTTY, THATARAKANDYIL, PUTHIYANGADI P.O., KOZHIKODE-21 (DIED ON 25.08.2009) 2. THE NEW INDIA ASSURANCE CO.LTD., THRIPURI BUILDING, EAST NADAKKAVU, KOZHIKOD-673011. 3. BINDU, WIFE OF O.RAMESH, THATARAKANDYIL, PUTHIYANGADI P.O., KOZHIKODE-673021 (ADDL.THIRD RESPONDENT) - R2 BY SRI.MATHEWS JACOB (SENIOR ADVOCATE) SRI.P.JACOB MATHEW THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 26.06.2014, THE COURT ON 09-07-2014 PASSED THE FOLLOWING: RP.No. 1030 of 2013 IN MFA.(WCC) 218/2009 ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE-1 LETTER DATED 26.06.2013 NO.G.(3)2583/13 ISSUED BY THE PUBLIC INFORMATION OFFICER (DEPUTY LABOUR COMMISSIONER) KOZHIKODE TO THE PETITIONER SHOWING THE MINIMUM WAGES PAYABLE TO DRIVERS OF AUTORICKASHAW ANNEXURE-2 COPY OF THE CONSUMER PRICE INDEX DATED 23.3.2006 OBTAINED BY THE PETITIONER FROM THE DEPARTMENT OF STATISTICS, THIRUVANANTHAPURAM ON 12.7.2013 RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **-------------------------------------R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 -------------------------------------Dated this the 9[th] day of July, 2014.** ## **ORDER** ## A.Hariprasad, J. Review petitioner had filed an appeal against the order passed by the Commissioner for Workmen's Compensation under the provisions of the Workmen's Compensation Act, 1923, later renamed as the Employees' Compensation Act, 1923 (for short, “Act”). He was aggrieved by the insufficiency of compensation awarded by the Commissioner. 2. Brief facts urged by the petitioner, in the disposed appeal, are as follows: Petitioner is an autorickshaw driver by occupation. On 23.06.2004, the autorickshaw driven by him met with an accident and he sustained extensive injuries. Owner of the autorickshaw was arraigned as the 1[st] respondent in the claim petition before the Commissioner. (Later he died. I.A.No.288 of 2013 was filed in the appeal to implead his legal heir. Notice to the proposed legal heir was issued. Though she was served, she did not appear and contest the case.) Petitioner contended before the R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 2 Commissioner that he was earning `4,000/- a month at the time of the accident. Commissioner, however, took his daily wages only as `100/and his monthly wages as `3,000/-. On the basis of this amount, the compensation was worked out. Petitioner challenged the above findings in the appeal. 3. This Court in the appeal as per judgment dated 03.07.2013 found that the finding entered by the Commissioner regarding the monthly income of the petitioner was a question of fact and it could not be said that the finding of fact entered by the Commissioner was afflicted by perversity. Therefore, the appeal was found to be not maintainable by virtue of the interdict in Section 30 of the Act. 4. Heard the learned counsel for the review petitioner and the learned Senior Counsel appearing for the Insurance Company. 5. Bone of contention in the review petition is that the Commissioner thoroughly failed in not considering the relevant materials for fixing wages of the workman. According to the learned counsel for the petitioner, this gave rise to a substantial question of law as required in Section 30 of the Act. 6. It is to be noted here that the Act underwent various amendments in respect of the provisions relating to determination of R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 3 compensation. During 2004, the law applicable was the Workmen's Compensation Act, 1923 as amended by the Amendment Act of 2000. The following definitions are relevant for determination of the issue in our hand. The term “wages” is defined in Section 2(m) of the Act as follows: _“(m) “wages”, includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment”_ Petitioner's contention is that he sustained employment injuries rendering him unfit to do the job and he suffered permanent total disablement. Section 4 of the Act deals with the amount of compensation. Portion of Section 4 of the Act relevant for our purpose reads thus: _“_ _**4. Amount of compensation.** - (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-_ _(a) xxxxxxxxx_ _(b) Where permanent total an amount equal to sixty disablement results per cent of the monthly from the injury wages of the injured_ R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 4 _workman multiplied by the relevant factor;_ _or_ _an amount of ninety thousand rupees, whichever is more;_ _Explanation I.- For the purpose of clause (a) and clause (b) “relevant factor” in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due._ _Explanation II.-Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only;_ _(c) & (d) xxxxxxxxxxx”_ It is important to note that the figure `4,000/- occurring in Explanation II above was added by the Amendment Act (Act 46 of 2000), which came into force on 08.12.2000. Originally it was `1,000/- with effect from 15.09.1995 till the above said amendment. Learned counsel for the petitioner contended that the injured/petitioner, being an autorickshaw driver, could have easily earned more than `4,000/- a month and this fact R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 5 was not taken note of by the Commissioner. Along with the review petition, two documents (Annexures- 1 and 2) are produced by the petitioner to establish that fixation of wages by the Commissioner was wrong. Annexure-1 is a letter from the Public Information Officer attached to the Office of the Deputy Labour Commissioner, Kozhikode. It shows the wages fixed for autorickshaw drivers under the Minimum Wages Act at the material time. According to this document, basic wages for an autorickshaw driver (autorickshaw carrying passengers) was `90/- per day. Apart from this, he was entitled to claim dearness allowance depending on the price index. A person drawing daily wages was entitled to claim seven paise as dearness allowance for every point above 400, fixed in accordance with the consumer price index. Annexure-2 is the consumer price index (cost of living index) during the month of June, 2004. The accident took place at Kozhikode. Entry No.14 in Annexure-2 deals with the consumer price index in respect of Kozhikode District. It shows that in the month of June, 2004, the estimated consumer price index was 1240. Learned counsel for the petitioner, therefore, contended that the figure for which the petitioner was entitled to get dearness allowance is 840 (ie., 1240-400). When this figure is multiplied by seven paise for 30 days, the eligible dearness allowance of the petitioner per month will be `1,764/-. If R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 6 we add this sum to his eligible salary at the rate of `2,700/- per month (ie., 90 x 30), we get a sum of `4,464/-. Learned counsel for the petitioner, therefore, would contend that going by the provisions in the statute, the Commissioner should have taken `4,000/- as monthly wages as claimed by the petitioner. 7. As per the appellate judgment, this Court found that no evidence was adduced by the petitioner before the Commissioner to substantiate his contention that he was earning `4,000/- per month and in the absence of any reliable evidence, except his ipse dixit, it could not be said that the Commissioner is to be faulted in declining to accept the case of the petitioner. Learned counsel for the petitioner would contend that the Commissioner, being an Officer in the Labour Department, should have considered the provisions of Minimum Wages Act for fixation of minimum wages of the petitioner. He should have relied on the data available in the Labour Department itself at the material time, especially when the petitioner raised a definite contention regarding the wages. It is further contended by the petitioner that there is no reason to reject his oral evidence as there is no contra evidence. 8. Section 30 of the Act is excerpted hereunder for clarity and convenience. R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 7 _“_ _**30. Appeals** .- (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 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;_ _(aa) an order awarding interest or penalty under section 4A;_ _(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 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-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:_ _Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order_ R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 8 _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:_ _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:_ _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._ _(2) The period of limitation for an appeal under this section shall be sixty days._ _(3) The provisions of section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section.”_ 9. It is discernible from the above provision that an appeal shall lie to the High Court from orders passed by a Commissioner only under the circumstances enumerated therein. First proviso to the Section clearly shows that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. This Court disposed the appeal R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 9 on finding that there was no substantial question of law raised in the appeal. Learned counsel for the petitioner contended that fixation of wages of the petitioner by the Commissioner on the basis of assumptions and by ignoring the statutory materials gave rise to a question of law. It is, therefore, contended by the learned counsel for the petitioner that this Court should have exercised its jurisdiction under Section 30 of the Act to correct the mistake committed by the Commissioner. In the appellate judgment passed by this Court an apparent error has crept in by ignoring the legal issue and hence it has to be reviewed, contended the learned counsel for the petitioner. 10. Apex Court in **Om Parkash Batish v. Ranjit @ Ranbir Kaur & others (AIR 2008 SC 2143)** considered the necessity of having a substantial question of law for entertaining an appeal under Section 30 of the Act and the scope of the terms “substantial questions of law”. In paragraph 13 of the decision, the law enunciated is as follows: _“Section 30 of the Act provides that an appeal shall lie to the High Court on a substantial question of law. A substantial question of law, in our opinion, will carry the same meaning as is commonly understood. Distinction sought to be made by Mr. Dhingra that a substantial question of law for the_ R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 10 _purpose of a first appeal and one for a second appeal would be different, cannot be accepted.”_ 11. The words 'substantial question of law' have not been defined in the Act. We find a similar expression in Section 100 of the Code of Civil Procedure, 1908 (for short, “CPC”). It is pertinent to note that the said words have not been defined in the CPC also. The same expression has been used in the Constitution too. The Supreme Court in **Santosh Hazari v. Purushottam Tiwari ((2001) 3 SCC 179)** , while interpreting the scope of the same expression occurring in Section 100 CPC, held thus: _“The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying 'question of law', means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of 'substantial question of law' by suffixing the words 'of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial_ R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 11 _question of law of general importance. .................”_ _“A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”_ 12. Learned counsel for the petitioner contended that the R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 12 Commissioner should have considered the provisions of the Minimum Wages Act to determine monthly wages of the petitioner. It is also contended that faulty determination of monthly wages by the Commissioner is an error touching the root of the matter. It is true that the petitioner had claimed `4,000/- as monthly wages in the original proceeding. However, except his oral evidence, there was no material produced to substantiate the claim. 13. Learned counsel for the petitioner relied on **Ouseph Mathai v. Kuroor Motor Service and others (1980 (2) ILR Kerala 58)** , a decision rendered by Division Bench of this Court interpreting the term “wages” defined in the Act. Facts in that case would show that a bus conductor died on account of employment injuries sustained by him. Total compensation claimed in that case was `7,000/- on the basis that the deceased had earned monthly wages to a tune of `120/-. Appellant therein put forward a contention that the deceased conductor was being paid at the rate of `30/- per month and a daily batta of `3/- also. However, in calculating the compensation, daily batta was excluded and the Commissioner fixed compensation at `1,800/- treating the monthly wages as `30/-. Grievance of the appellant before this Court was that daily batta was not treated as part of the wages of the deceased. In that factual matrix, this Court held R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 13 thus: _“That a part of the remuneration due to a worker was being paid daily and the remaining on monthly basis will not make either of the payments any-the-less wages so long as it is a benefit capable of being estimated in money. The question in each case is whether the workman concerned can claim the amount as of right for the services rendered by him. If he can do so and if it does not fall under the excluded category mentioned in section 2(1)(m), there is no scope for dispute that it is wages which should be taken into account in deciding the quantum of compensation due to the workman. The daily batta that was being received by the deceased should be considered to be part of the wages for the purpose of assessing the compensation due to the appellant under the Workmen's Compensation Act.”_ The above decision does not support the plea now urged by the petitioner/appellant as the fact situations in both the cases are totally different. 14. We have carefully gone through the pleadings in the original proceedings, the memorandum of appeal and the review petition. As mentioned earlier, there is no pleading raised before the Commissioner R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 14 that the petitioner was entitled to get monthly wages determinable under the provisions of the Minimum Wages Act. This contention came up for the first time in the review petition. Claim under the Payment of Minimum Wages Act is not even raised in the appeal. On a scrutiny of the appeal memorandum, it is seen that the petitioner/appellant contended that the Commissioner omitted to notice the provisions in the Kerala Motor Transport Workers Payment of Fare wages Act, 1971. It is pertinent to note that a plea based on the above said Act or under the Minimum Wages Act was not raised before the Commissioner. It is evident that the plea now raised in the review petition is different from that in the appeal memorandum. We are of the view that the review petitioner has no consistent case regarding his legal entitlement. Settled law is that an entirely new point raised for the first time before the High Court is not a substantial question of law unless it goes to the root of the matter (see - **Santhosh Hazari** 's case-supra). By no stretch of reasoning, we are able to find that the plea now raised by the review petitioner goes to the root of the matter. Even now we find no substantial question of law in the appeal. So, it cannot be contended in the review petition that there is an error apparent in the appellate judgment. In other words, it cannot be stated that a substantial question of law, which should have been determined by this R.P.No.1030 of 2013 in M.F.A. (WCC) No.218 of 2009 15 Court under appellate jurisdiction, was omitted to be considered. Even assuming that it is an issue which went to the root of the matter, even then, not having set up such a case in the appeal, there cannot be a case for review as obviously there is no error apparent on the face of the record. No legal reason is made out to entertain a review petition. In the result, the review petition is dismissed. No order as to costs. ## **K.M.JOSEPH, JUDGE.** ## **A. HARIPRASAD, JUDGE.** **cks**