Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 419 (ALL)

Laxmi Pat Singhal v. Naseema

2009-02-06

AMTIAVA LALA, SHISHIR KUMAR

body2009
JUDGMENT Per AMITAVA LALA, J. The fact remains that the deceased was appointed as cleaner by the owner of the truck No. H.R.38 F 201. He was going by the said truck to Anjar, Gujarat and when the truck reached to Sojat City near Parihar hotel, the truck met with accident with truck no. R.J. 142 G- 7869 and the deceased died on the spot. The insurance of the truck was valid at the time of accident. He was aged about 23 years. The claimant/respondent, mother of the deceased, had stated in the Court of Commissioner of Workmens Compensation that the deceased was getting salary about Rs.4000/- per month from the owner. But the owner of the truck had said therein that he was paying Rs.1,800/- per month to the deceased. The claimant did not submit any document as evidence in support of the salary. However, the Commissioner fixed the compensation of Rs.3,04,560/-. The Commissioner also held that the owner of the truck caused delay in paying the compensation to the claimant, therefore, he is liable to pay simple interest @ 10% per year and further held that the owner of the truck for the period of nine months will pay interest of Rs. 22, 842/-. For the interest the notice was issued to the owner under Section 4-A(3) of Workmens Compensation Act, 1923 (hereinafter called as the Act, 1923). 2. All the appeals are arising out of selfsame claim of compensation. At first F.A.F.O. No. 293/2008 had been preferred by the owner when he was fastened with the liability of paying interest. A single Judge of this Court by an order dated January 31, 2008 was pleased to stay the order on certain conditions. Subsequently the insurance company had preferred the appeal being F.A.F.O. No. 335/2008 taking the plea that the judgment and. award passed by the Commissioner is without jurisdiction, from which a Division Bench of this High Court upon being satisfied with the proviso to Section 21 (1) of the Act, 1923, was pleased to direct that the entire awarded amount deposited by the insurance company will not be released without the leave of the Court. award passed by the Commissioner is without jurisdiction, from which a Division Bench of this High Court upon being satisfied with the proviso to Section 21 (1) of the Act, 1923, was pleased to direct that the entire awarded amount deposited by the insurance company will not be released without the leave of the Court. Lastly, when inspite of the order of the learned single Judge passed on January 31, 2008 in F.A.F.O. No. 293/2008 staying the operation of the order on certain conditions, the Commissioner did pass an order imposing penalty for non payment of compensation, the same was also challenged by the owner in F.A.F.O. No. 938/2008. 3. All the appeals were directed for analogous hearing when the parties agreed for the same on informal papers. It is pertinent to mention sitting in this jurisdiction that on numerous occasions we find several orders were passed by the Commissioner apparently de hors the law when we came to know that in the State of U.P. the posts of the Commissioner of Workmens Compensation is being filled up by the executive officers but not by the Judicial Officers either sitting or retired or calling upon from the lawyers or the persons accustomed with the law. In Surendra Kumar Sharma v. State of U.P. and Others 2002-II-LLJ-1119 (All) a Division Bench of this High Court has already held to that extent but the State Government has not found any opportunity to follow the same. Relevant portion of the judgment of the Division Bench of this High Court is as follows at p. 1120: "4. These provisions clearly indicate that the Commissioner is a Tribunal exercising judicial powers. Hence, in view of in Article 50 of the Constitution he must be a person of a legal background like a lawyer or a retired Judge so that the public confidence may be maintained and proper judicial verdicts be delivered which can only be done by a trained judicial mind." 4. We were compelled to call upon the o learned Standing counsel of the State to give an appropriate explanation on behalf of the Commissioner having been present since the propriety and judicial discipline appear to be 5 infringed. However, good sense prevailed, I when order imposing penalty passed by the Commissioner is withdrawn. 5. We were compelled to call upon the o learned Standing counsel of the State to give an appropriate explanation on behalf of the Commissioner having been present since the propriety and judicial discipline appear to be 5 infringed. However, good sense prevailed, I when order imposing penalty passed by the Commissioner is withdrawn. 5. Hence, no further order is needed to be passed in the F.A.F.O. No. 938/2008 and with such observation the appeal is treated to be disposed of, however, without imposing any cost. Personal presence of the Commissioner, as prayed for, is dispensed with conveying displeasure of the Court to the State Government for not doing the needful as per the direction of the Division Bench of the Court as yet. 6. Now let us go back to the original cause fastening the insurance company with regard to liability of payment of principal sum of compensation and the owner with regard to payment of interest. Although the appeal of the insurance company is subsequent to the appeal of the owner but since it has been made out of the principal sum of compensation the same has been dealt herewith at first. Mr. Amit Manohar, learned counsel appearing for the insurance company, contended before the Court that the accident did not take place within the territory of State of Uttar Pradesh but within the territory of State of Gujarat, therefore, passing of the order by the Commissioner without any notice or intimation to the respective Commissioner in the State of Gujarat is contravention of Section 21 of the Act, 1923, thereby without jurisdiction. 7 . We have gone through Section 21 (1) of the Act, 1923. First proviso under this Section is relevant for the purpose, which is quoted hereunder: "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." 8. Admittedly the place of accident is in the province of Gujarat but the claimants, as residents of district Saharanpur, Uttar Pradesh, filed the claim petition before the Commissioner dealing with the cases of district Saharanpur. Law prescribes, as incorporated in New India Assurance Co. Admittedly the place of accident is in the province of Gujarat but the claimants, as residents of district Saharanpur, Uttar Pradesh, filed the claim petition before the Commissioner dealing with the cases of district Saharanpur. Law prescribes, as incorporated in New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya and Another AIR 2006 SC 1926 : (2006) 5 SCC 192 : 2006-II-LLJ-782, that the liability of the insurance companies to pay the compensation as per the Act, 1923 is contractual in nature unlike the statutory one under the Motor Vehicles Act, 1988 (hereinafter called as Act, 1988). So far as the question of jurisdiction is concerned, Section 166(2) of the Act, 1988 clearly speaks that the claim petition can be filed before the Claims Tribunal having jurisdiction over the area in which the accident occurred or within the local limits of whose jurisdiction the claimant resides or carries on business or within the limits of whose jurisdiction the defendant resides. Apparently the Act, 1988 is not only exhaustive in nature but also protection of the claimants through an insurance company is statutory in nature. On the other hand, claim against the insurance company is contractual in nature, therefore, the Commissioner has to adjudicate the matter under the Act, 1923 in strict compliance thereof. Therefore, it is mandatory for the Commissioner, who proceeds with the claim petition, having no jurisdiction over the area where the accident took place but on the basis of the residence of the claimants to give notice to the Commissioner having jurisdiction over the area where the accident took place to avoid the fraudulent practice, if any. But this has not happened here. Therefore, the order of the Commissioner can not be held to be sustainable. This may also happen due to lack adequate skill in the judicial side. The case before us appears to be either incidental slip or omission or ignorance of law. 9. Therefore, we are of the view that the order impugned in F.A.F.O. No. 335/2008 will be set aside and is, accordingly, set aside with a direction upon the Commissioner to withhold the amount till the due compliance of the order hereunder and release to the respective party or parties subject to the result of the proceeding. 9. Therefore, we are of the view that the order impugned in F.A.F.O. No. 335/2008 will be set aside and is, accordingly, set aside with a direction upon the Commissioner to withhold the amount till the due compliance of the order hereunder and release to the respective party or parties subject to the result of the proceeding. A notice is required to be given to the Commissioner in whose jurisdiction the accident took place urgently i.e. within a period of seven days from the date of receipt of a certified copy of this order and upon receiving the intimation of such notice proceed with the case as expeditiously as possible on merit upon giving day to day hearing in case of necessity. Accordingly, the F.A.F.O. No. 335/2008 is allowed, however, without imposing any cost. 10. So far as the payment of interest by the employer in F.A.F.O. No. 293/2008 is concerned, we required to discuss the provision of Section 4-A of the Act, 1923, but before the same the factual aspect of the matter is required to be discussed hereunder. It appears that the date of accident is March 25, 2007. The claim form was forwarded by the employer to the insurance company on April 6, 2007, which was received by them on April 9, 2007 and the same was filed before the Commissioner. Therefore, according to us, what is required to be done by the owner was made within the time period fixed under the law i.e. Section 4-A of the Act, 1923. Relevant part of such Section is quoted hereunder: "(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall- (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve percent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due." 11. As we have already discussed above that the insurance company is not statutorily liable unlike Act, 1988 but contractually liable, it can not be compelled generally other than strict contractual and statutory compliance. There is no delay in taking action by the employer. As we have already discussed above that the insurance company is not statutorily liable unlike Act, 1988 but contractually liable, it can not be compelled generally other than strict contractual and statutory compliance. There is no delay in taking action by the employer. There is not even any discussion about the alleged delay or laches on the part of the employer in the order impugned. When the payment of compensation is to be made by the insurance company delay, if any, is to be ascertained from the action on the part of the employer in informing the insurance company. Mere apprehension of delay is not a ground for imposing any interest. That apart, even when the appeal has been preferred by the employer on January 29, 2008 within the period of one month from the date of passing the award i. e. December 31, 2007 yet the learned single Judge at the time of admitting the appeal passed an interim order on condition of deposit of 50% of the awarded amount. Ultimately when we find that the order impugned has been passed without statutory compliance as indicated above and there is no apparent delay on the part of the appellant factually and also after the order impugned is passed without any explanation merely on the basis of the apprehension, we hold that imposition of interest upon the employer is totally illegal in nature. Therefore, the order is set aside. The appeal is allowed, however, without imposing any cost. The deposited amount will be refunded to the employer. 12. We repeat and say that all such situations seem to be created by the whims of the Court as a result whereof Courts valuable time is misused. We have no hesitation to say that the State Government is responsible for mockery of judiciary. Therefore, it is expected that the State Government will do the needful as expeditiously as possible. 30 A copy of the order will be given to the learned Advocate General/learned Addl. advocate General/earned Chief Standing counsel for the purpose of taking necessary steps. Orders accordingly.