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2000 DIGILAW 8 (ORI)

United India Insurance Co. Ltd. v. Muna Khan

2000-01-04

P.K.MISRA

body2000
JUDGMENT P. K. MISRA, J. — The Insurer has filed this appeal under Sec. 30 of the Workmen’s Compensation Act. 2. Claimant-respondent No. 1 was working as a Helper in Truck bearing registration number OR-05-A-3608 belonging to present respondent No. 2. While the aforesaid vehicle was coming from U.P. towards Bhubaneswar, it met with an accident near Beheraguda in East Singhbhum, Bihar. The claimant-respondent sustained injuries in his left hand. Subsequently after filing of the claim application, the hand of the claimant had to be amput¬ated. Claim application was filed before the Workmen’s Compensation Commissioner, Cuttack, (in short, the “Commissioner”) as the claimant is a resident of Cuttack. 3. In spite of notice, the Insurance Company did not take any steps. However, the owner while admitting abut the employment and the accidental injury claimed that the amount of compensation should be paid by the Insurance Company. 4. The Commissioner found that the claimant-respondent was a workman and had sustained injuries in an accident arising out of and in course of employment and subsequently, the hand need to be amputated. It was further found that the claimant was receiving a sum of Rs. 1,800/- per month. The loss of earning capacity was assessed at hundred per cent. on such calculation, it was direct¬ed that a sum of Rs. 1,95,219/- should be paid by the Insurance Company. 5. In this appeal, the learned counsel appearing for the Insurance Company first submitted that since the accident had occurred within the State of Bihar, without complying with the provisions contained in Section 21 (1), Proviso, of the Workmen’s Compensation Act, the Commissioner at Cuttack should not have entertained and decided the matter. The relevant provisions of Section 21 (1) are extracted hereunder : “21. The relevant provisions of Section 21 (1) are extracted hereunder : “21. Venue of proceedings and transfer - (1) Where any matter under this Act is 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 the Commissioner for the area to which - (a) the accident took place which resulted in the injury; or (b) the workman or in the case of his death, the deponent claim¬ing the compensation ordinarily resides; or (c) the employer has his registered office : Provided that no matter shall be processed before or by a Commissioner, other than the Commissioner having jurisdiction over the area in which the accident took place, without his giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned : Provided further ...... (omitted as unnecessary)” It is contended by the counsel for the appellant that from the records it does not appear that the Commissioner had given any notice to the State Government concerned, that is to say, the Bihar State Government, as contemplated in the first Proviso and as such, the decision of the Commissioner should be taken to be a nullity. 6. A perusal of the provisions contained in Section 21 (1) read with other provisions, particularly, the provisions contained in Sub-secs. (1-A) and (2) of Section 21 indicates that the intention of the legislature is that the dispute should be decided at a place most convenient for the purpose. After the provisions have been amended by Act 30/95, there is no absolute bar for other Commissioner to decide the case. It is, of course, true that as per the first Proviso, the Commissioner other than the Commissioner having jurisdiction over the area in which the accident took place is required to give notice to the Commission¬er having jurisdiction over the area as well as the State Govern¬ment concerned. In the present case, there is no dispute that the Commissioner at Cuttack had issued such notice to the Commission¬er having jurisdiction over the area wherein the accident had taken place, but it does not appear that any notice had been issued to the State Government of Bihar. In the present case, there is no dispute that the Commissioner at Cuttack had issued such notice to the Commission¬er having jurisdiction over the area wherein the accident had taken place, but it does not appear that any notice had been issued to the State Government of Bihar. The question is whether the decision given by the Commissioner can be treated to be illegal merely because no such notice had been issued to the concerned State. 7. In the present case, since the appellant has not appeared before the Commissioner in spite of notice, this objection had not been raised before the Commissioner and for the first time this objection is being raised in appeal. If any objection would have been raised before the Commissioner while the matter was pending, the defect in the procedure could have been easily rectified by the Commissioner by issuing an appropriate notice to the State Government of Bihar. The defect pointed out does not go to the root of the jurisdiction of the Commissioner to deal with the matter, but pertains to manner of exercise of jurisdiction. In the present case, admittedly notice had been issued to the appellant and it does not appear that any prejudice has been caused to the appellant merely because, the case had been taken up at Cuttack, without issuing notice to the State Government of Bihar. The counsel for the appellant has not been able to point out any advantage which the Insurance Company would have derived if any notice would have been issued to the State Government of Bihar, nor he has been able to show any disadvantage caused to the appellant by non-issuance of such notice to the State Govern¬ment of Bihar. The provisions regarding issuance of notice par¬ticularly to the State Government concerned appears to be for the purpose of proper regulation of cases in order to avoid multi¬plicity of proceedings. In the present case in appeal, respondent No. 1 has filed an affidavit indicating that no other case has been filed before any other Commissioner. Having regard to the facts and circumstances of the case and the object of the provi¬sions contained in Section 21 (1), (1-A) and (2), since no preju¬dice has been caused to the appellant, the contention now raised for the first time cannot be accepted. Having regard to the facts and circumstances of the case and the object of the provi¬sions contained in Section 21 (1), (1-A) and (2), since no preju¬dice has been caused to the appellant, the contention now raised for the first time cannot be accepted. The view taken by me receives support from the decision of the Andhra Pradesh High Court reported in 1998 (2) TAC 511 (A.P.) (Oriental Insurance Co. Ltd. v. Waheed Khan and another). 8. The learned counsel for the appellant then contended that though the appellant had received notice, the officer who was looking after the case had suffered from severe heart disease and as such could not take steps and thereafter the other officers lost track of the matter as a result of which no steps could be taken in the matter. It has been contended that the question as to whether there was valid driving licence or not has not been determined and the questions relating to the extent of injury and monthly income of the claimant are required to be determined only after giving opportunity to the appellant. The learned counsel appearing for the claimant-respondent, on the other hand, submit¬ted that the claimant has suffered much anguish due to prolonga¬tion of the proceeding and if the matter is remanded at this stage, the claimant-respondent is likely to suffer more. 9. There is no doubt that if the matter is remanded, claimant-respondent No. 1 is to face further harassment as the proceeding is likely to continue for some time. However, this inconvenience can be compensated by directing payment of interim compensation. The appellant has deposited the entire awarded amount in this Court which has been invested in fixed deposit. It is directed that without prejudice to the contentions of all parties, a sum of Rs. 50,000/- (Fifty thousand) shall be paid to claimant-respondent No. 1 by way of interim compensation and the matter should be re-determined by the Commissioner after giving opportunity of hearing to the present appellant. The other par¬ties shall also be given opportunity of adducing further evidence if they so like. 50,000/- (Fifty thousand) shall be paid to claimant-respondent No. 1 by way of interim compensation and the matter should be re-determined by the Commissioner after giving opportunity of hearing to the present appellant. The other par¬ties shall also be given opportunity of adducing further evidence if they so like. At the time of final decision, the Commissioner can make appropriate order regarding payment of further amount to the claimant or regarding reimbursement of the amount by the claimant or the owner if it is found that claimant is not enti¬tled to the amount paid or the Insurer is not liable to pay, as the case may be. The balance amount lying in this Court shall continue to be kept in fixed deposit till disposal of the matter before the Commissioner and shall thereafter be disbursed in accordance with the final decision of the Commissioner. The parties are directed to appear before the Commissioner on 25th January, 2000, for receiving further instruction in the matter. The Commissioner shall thereafter proceed to decide the matter in accordance with law as expeditiously as possible preferably within a period of four months from the date of receipt of the order. The amount as per the direction contained in this judgment shall be disbursed by the registry by account payee cheque/pay order in the name of claimant-respondent No. 1 within ten days of the present order. The question relating to jurisdiction of the Commissioner is finalised. The other matters are to be re-determined by the Commissioner. 10. The Misc. Appeal is accordingly allowed. There will be no order as to costs. Misc. Appeal allowed.