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2005 DIGILAW 168 (KAR)

NATIONAL INSURANCE CO. LTD v. HULIGEMMA

2005-03-02

MOHAN M.SHANTANAGOUDAR

body2005
SHANTHANAGOUDAR, J. ( 1 ) BY the impugned order Annexure A dated 29. 10. 2003, the workmen's Compensation Commissioner, koppal ('the Commissioner' for short) has rejected the miscellaneous application filed by the petitioner under Order 9, rule 13, civil Procedure Code, for setting aside the award Annexure B dated 31. 10. 2000 passed in W. C. No. 24/2001/1992. ( 2 ) THE records disclose that one Ram- anna, son of the respondent No. 1 herein, died on 6. 7. 1997 during the course and out of employment in the establishment of respondent No. 2 herein. As such, respondent no. 1 herein filed claim petition before the workmen's Compensation Commissioner, koppal in W. C. A. CWC/f. 24 of 1998, who passed an award in favour of claimant granting the compensation of Rs. 2,26,380 with interest at the rate of 9 per cent per annum from the date of application till the date of payment. The petitioner insurance company, thereafter, filed petition under order 9, rule 13, Civil Procedure Code, read with rule 41 of Workmen's Compensation Rules, 1924 (hereinafter referred to as 'the Rules' for short) praying for setting aside the said award dated 31. 10. 2000 mainly on the ground that the Divisional manager is not served with notice as he was not made party before the Commissioner and that the notices were served only on Branch Manager of the insurance company. As aforesaid, the said petition filed by the petitioner is rejected by the commissioner. ( 3 ) MR. B. C. Seetharama Rao, learned counsel appearing for petitioner strenuously submitted that the insurance company should have been represented by the Divisional Manager, who is the appropriate authority, but not the Branch Manager and as such, the notice, though served on the branch Manager is not a valid service of notice; that thus the petitioner could not represent before the Commissioner and put forth its case effectively; consequently the impugned award is passed in violation of the principles of natural justice. He further submitted that rule 41 of the Rules provides for application of Order 9 of Civil procedure Code, to the proceedings before the Workmen's Compensation Commissioner under the provisions of Workmen's compensation Act (hereinafter referred to as 'the Act' for short) and that, therefore, the Commissioner should have exercised his jurisdiction on merits; that the Commissioner is not justified in rejecting the said application filed under Order 9, rule 13 of civil Procedure Code, on the ground of want of jurisdiction. He further submitted that as no appeal is provided against the order passed on the application filed under order 9, rule 13, Civil Procedure Code, by the Commissioner, this writ petition is maintainable. ( 4 ) ON the other hand, Mr. P. G. Mogali, learned counsel appearing for respondent no. 2, by placing reliance on the Division bench decision of this court in the case of Praveen Industries v. Banawar Singh, 1990 ACJ 980 (Karnataka), submits that the writ petition is not maintainable and the only course open to the petitioner is to approach the appellate court under section 30 of the Act by challenging the award dated 31. 10. 2000. It is further submitted that since the award dated 31. 10. 2000 is passed on merits by the Commissioner, he has rightly refused to entertain the application filed by petitioner. On these grounds he prayed for dismissal of the writ petition. ( 5 ) THE bare reading of rule 41 of the rules makes it clear that the provisions of order 9, Civil Procedure Code, shall apply to the proceedings before the Workmen's compensation Commissioner. In view of the same, the Commissioner has rightly taken up the said application filed by the petitioner for consideration. The Commissioner has, however, rejected the same on merits and not on the ground of want of jurisdiction. Though the impugned order passed by the Commissioner is cryptic, the same is passed on merits of the application wherein the Commissioner has clearly observed that as the award passed by him on 31. 10. 2000 has attained finality, it cannot be withdrawn or set aside. Though the impugned order passed by the Commissioner is cryptic, the same is passed on merits of the application wherein the Commissioner has clearly observed that as the award passed by him on 31. 10. 2000 has attained finality, it cannot be withdrawn or set aside. ( 6 ) IT is true that no appeal can be filed under Order 43, rule 1 of Civil Procedure code, as against the order passed on the application filed under Order 9, rule 13 of the Civil Procedure Code, by the Commissioner in the proceedings arising out of the workmen's Compensation Act. Though the provisions of Order 9, rule 13 of Civil procedure Code are applicable to the proceedings initiated under the provisions of the Act, the provisions of Order 43, rule 1 of the Civil Procedure Code, are not made applicable to the proceedings under the workmen's Compensation Act under rule 41 of the 'rules'. Consequently, the appeal under Order 43, rule 1, Civil Procedure code, as against the order passed on the application filed under Order 9, rule 13, civil Procedure Code, is not maintainable. However, the only course open to the parties is to file an appeal under section 30 of the Act against the order of awarding compensation. The Division Bench of this court, in the decision cited supra while dealing with similar situation observed thus:" (6) The only provision regarding the appeal against the orders made by the workmen's Compensation Authority is found in section 30 of the Workmen's compensation Act. Under clause (a) of section 30 (1) an appeal lies to this court from the orders of the Commissioner awarding compensation. Therefore, it is clear that if an order awarding compensation has been made by the Workmen's compensation Authority and thereafter an application was made under Order 9, rule 13, praying for setting aside that order on the ground that the appellant had been placed exparte without justification and that application is dismissed, the only course open to the party is to prefer an appeal against the order awarding compensation as provided in section 30 (1) (a) of the Act. But no appeal can be filed against an order dismissing the application for setting aside the order as there is no provision for filing such an appeal under section 30 of the Act and under rule 41, the provisions of Order 43, rule 1, Civil Procedure Code, are not made applicable. (7) If, for any reason, as has actually happened in this case, by the time the application for setting aside the ex parte decree is dismissed and the time for filing appeal against the original order is over, the only course open for the party is to file an application under section 5 of the Limitation Act praying for condonation of delay, as the said provision is expressly made applicable under section 30 (3) of the Workmen's Compensation act. " ( 7 ) IT is clear from the aforesaid dictum laid down by the Division Bench of this court that under such a situation, the only course open to the parties is to prefer an appeal against the order awarding compensation as provided under section 30 (1) (a) of the Act. Though the Division Bench did not specifically consider the question as to whether the writ lies against the order passed by the Commissioner on the application filed under Order 9, rule 13 of Civil procedure Code, it has clearly held that the only course open to the parties to the proceedings before the Commissioner is to prefer an appeal against the order awarding compensation as provided in section 30 (1) (a) of the Act. ( 8 ) THOUGH this court can exercise its extraordinary or supervisory jurisdiction under Articles 226 and 227 of the Constitution of India in such matters, I decline to entertain the writ petition in view of the aforesaid dictum laid down by the Division bench of this court cited supra which has held the field for more than fifteen years by now. The principle of 'stare decisis' has been evolved for maintaining judicial decorum, propriety, discipline and also for not unsettling well settled law by each individual view unless it is overruled by higher court or a larger Bench. The single Judge of the High Court is bound to accept as correct, the judgments of the courts of coordinate jurisdiction of Division Benches and of Full Benches of this court and of the Apex Court. The single Judge of the High Court is bound to accept as correct, the judgments of the courts of coordinate jurisdiction of Division Benches and of Full Benches of this court and of the Apex Court. The principles of 'stare decisis' and 'reference' are not contrary but complementary to each other. Taking recourse to the doctrine of 'stare decisis' would be an imperative necessity, so as to avoid uncertainty and confusion, since the basic feature of law is its certainty and in the event of any departure therefrom, the society would be in utter confusion and the resultant effect of which would be legal anarchy and judicial indiscipline-a situation which always ought to be avoided. It is true that the doctrine has no statutory sanction but it is a rule of convenience, expediency, prudence and above all the public policy. It is to be observed in its observance rather than in its breach to serve the people and subserve the ends of justice. ( 9 ) WHERE the courts follow their own judgments, they do so on the ground of judicial comity. The judgment in Praveen industries, 1990 ACJ 980 (Karnataka), is followed in a number of cases for fifteen long years in this State. Added to it, the petitioner is entitled to raise all the grounds urged in this writ petition before the appellate court under section 30 of the Act. Consequently, this court deems it just and proper to apply the principles of 'stare decisis' by following the dictum laid down in the decision cited supra which has held the field for more than 15 years by now. In view of the above, without expressing any opinion on the merits of the case, I hold that though petitioner is certainly entitled to file an application for setting aside an ex parte award by filing application under order 9, rule 13 of Civil Procedure Code, before the Workmen's Compensation authority, the provisions of Order 43, rule 1 are not made applicable to the proceedings under Workmen's Compensation Act under rule 41 of the Workmen's Compensation rules and that the only recourse open to the petitioner in this writ petition is to prefer an appeal against the order awarding compensation as provided in section 30 (1) (a) of the Workmen's Compensation Act, 1923. In this view of the matter, this writ petition is liable to be dismissed. In this view of the matter, this writ petition is liable to be dismissed. Hence, the following order is made: writ petition is dismissed. However, it is open for the petitioner to prefer an appeal against the award dated 31. 10. 2000 passed by the Commissioner for Workmen's Compensation, Koppal in W. C. No. 24/98 (24/2001/1992) before the appellate court by filing necessary application for condonation of delay, if it so chooses. Petition dismissed. --- *** --- .