Court No. - 7
Case :- FIRST APPEAL FROM ORDER No. - 3993 of 2018 Appellant :- New India Assurance Co. Ltd. Respondent :- Mohd. Shakib And Another Counsel for Appellant :- Amaresh Sinha Counsel for Respondent :- Satya Deo Ojha
Hon'ble Saumitra Dayal Singh,J.
1. The present appeal has been filed against the award of the Employees Compensation Commissioner, Muzaffarnagar dated 23.8.2018 in case no. 66 of 2015. The insurer whose appeal appeared before this court had raised the following questions of law:
(i) Whether the court below was justified in allowing the claim petition in respect of a person who as not the employee of the owner of the vehicle and the injuries sustained by him were not during course of his employment and arising out of his employment?
(ii) Whether in absence of notice as required u/s 21 of the Employees Compensation Act, the court below was justified in allowing the claim petition?
(iii) Whether the court below was justified in relying upon the disability certificate of the claimant which was not proved by the Doctor who issued the same?
2. Keeping in mind the nature of dispute / questions involved, the appeal is being decided at the fresh stage itself, with the consent of parties, without formal order of admission and without calling for the record. The submission advanced by learned counsel for the appellant that the award suffers from incurable defect inasmuch as compliance has not been made of the mandatory provision of the first proviso of Section 21 (i) of the Employees Compensation Act, 1983 (hereinafter referred as to the 'Act').
3. Admitted facts in the above regard are, according to the claimant the accident giving rise to this claim occurred on 11.3.2015 at Panipat wherein the claimant was injured while driving the truck bearing registration No.HR 58 B 0891 when it collided with another truck.
4. The claim petition came to be filed at Muzzafarnagar i.e. before the Commissioner of the area where the permanent place of residence of the claimant is situate. Admittedly, that claim petition has been allowed without issuance of a prior notice to the Commissioner of Panipat area.
5. While, the insurer disputes the claim on merits as well, however, at present that issue not required to be gone into inasmuch as it has to be first examined whether in such fact the award could have made by the Employees Compensation Commissioner, Muzaffarnagar without issuing a prior notice as contemplated under the first proviso of Section 21 (i) of the Act.
6. The provisions of Section 21(i) reads as under:-
"21. Venue of proceedings and transfer.-
(i) Where any matter is under this Act to be done by or before a Commissioner, the same shall, subject to the provisions of this Act and to any rules made hereunder, be done by or before a Commissioner for the area in which the accident took place which resulted in the injury: Provided that, where the workman is the master of a ship or a seaman, any such matter may be done by or before a Commissioner for the area in which the owner or agent of the ship resides or carries on business."
7. Upon a plain reading of the proviso it appears it was a mandatory for the Employees Compensation Commissioner, Muzaffarnagar to have first issued a notice to the Commissioner having jurisdiction over Panipat area principally to determine and ascertain whether any earlier or other claim may have been filed by the claimant. The above rule appears to contain a common sense principle to avoid double or repeated claims. The learned counsel for the appellant is well supported in his submission by the judgment of Division Bench of this court relied in the case of ICICI Lombard General Insurance Company Ltd. Vs. Rakesh and Another 2010 (2) TAC 237. That decision had arisen from provision in the Workmen's Compensation Act, 1923 that contained pari-materia provisions.
8. The Division Bench held as below:-
"We have considered the pros and cons. We are of the view that there are two situations i.e. judicial authority inherently lacks the jurisdiction and having jurisdiction not complied with legal formalities. If the Commissioner completely lacks jurisdiction then the entire exercise subsequent thereto will render futile and no proceeding can be proceeded without such notice but when the Court having jurisdiction did not discharge obligation/s required to be done procedurally then an appropriate order at an appropriate stage can be passed but depending upon the facts and circumstances of each case. In this particular case no such point has been raised by the appellant preliminarily or substantially before the court of Commissioner. The Commissioner has proceeded on merit, delivered a judgment and passed an order giving compensation to the claimant on account of injury. It is for the first time before the appellate court, the appellant has taken the point. Although the point can be taken at the appellate stage but one should be diligent before the court of first instance at the time of framing issues and leading evidences. The objects and reasons of Workmen's Compensation Act, 1923 is to provide compensation to certain classes of Workmen or their dependants on account of injury caused by the accident. Therefore, it is a beneficial piece of legislation. In the case of beneficial piece of legislation, law is little tilted in favour of the beneficiaries. Hence, the requirement for the Court is to determine the course of payment as natural and refusal, if any, as unnatural. One of such reason of refusal is extortion of money by practising fraud upon the court. To plug the loophole, law has provided the parameter to avoid double benefit. The requirement of law is that the Commissioner who is going to pass an order having jurisdiction over the residence of the claimant has to have knowledge or information about proceeding, if any, before the Commissioner in whose jurisdiction accident took place. Therefore, non-discharge of such duty by the Commissioner is definitely an acute procedural irregularity but the same can not be construed as inherent lack of jurisdiction. On the basis of the ratio of Ramchandra Keshav (supra), it is expected that the judiciary must be much more careful since judicial accuracy gives correct message to the society."
9. Sri S.D. Ojha learned counsel for the respondent claimants would submit that no objection had been taken by the insurer before the Commissioner and therefore the present objection is wholly belated and a mere after thought.
10. Having considered the arguments so advanced by the learned counsel for the parties, the issue raised is squarely covered by the decision of Division Bench noted above and in any case from a plain reading of the statute, it is clear that the first proviso of Section 21(i) of the Act is mandatory.
11. Consequently, Employees Compensation Commissioner, Muzaffarnagar clearly erred in making the award without issuing prior notice to the Commissioner having jurisdiction over Panipat area and thus failing to first determine whether the claim petition filed before him was the first and/or the only claim petition filed by the applicant arising from the accident in question.
12. In view of the above, the award dated 23.8.2018 is set aside. The matter is remitted to the Employees Compensation Commissioner, Muzaffarnagar to pass a fresh order strictly in accordance with law after issuance a prior notice to the Commissioner having jurisdiction over Panipat area.
13. Such exercise may be completed as expeditiously as possible preferably within a period of three months from the date of production of certified copy of this order. Also, it is made clear, that this order will not entail fresh opportunity to either party to lead evidence, de-novo. If the Commissioner for Panipat area signifies that no other claim has been filed by the claimant, the Commissioner at Muzzafarnagar may rehear the matter on the basis of existing record and pass a fresh order, without being influenced by any finding or observation made in this order or the impugned award.
14. Further the amount of compensation deposited by the present appellant to maintain the present appeal may be retained in an interest bearing term deposit (by the Employees Compensation Commissioner, Muzaffarnagar), to be dealt in accordance the award that may be passed by him in compliance of this order, after allowing the parties time upto expiry of normal period of limitation to file appeal against the award that may be passed in compliance of this order.
15. In view of the above discussion question numbers (i) and (ii) are decided in the negative i.e. is in favour of the appellant and against the claimant respondent. Question no. (iii) does not survive at this stage.
16. The appeal is accordingly allowed. Order Date :- 30.10.2018 Gaurav Pal