Cases Referred: 1. Ramashray Singh –vs- New India Assurance Co. Ltd., AIR 2003 SC 2877 . 2. New India Assurance Company v. Satpal Singh and others, 2000(1) SCC 237 . Judgment :- 1. The respondent insurance Company in WCA.B-2.NFC.CR.18/2002 on the file of Commissioner for Workmen’s Compensation. Sub Division-II, Bangalore has come up in this appeal challenging the validity and correctness of the order dated 13.9.2004 passed in the aforesaid matter. For the sake of convenience the parties to this appeal are referred to by their respective ranking in the court below. 2. Brief facts leading to this appeal are as under: On 19.1.2002 the claimant 1st respondent in this proceedings was traveling in Mahindra Cab bearing No.AP.02/T-7594 as cleaner. The said vehicle met with accident near Microwave Station at Penukonda. Ananthapur District. In the accident claimant suffered fracture of both bones of left leg, injury to left knee and other injuries. In this behalf a claim petition was filed by him before the Government for Workmen’s compensation. Sub-Division II. Bangalore on 14.2.2002 seeking compensation in a sum of Rs.5,43,312/- along with interest at 12% p.a. The said petition was filed by him against owner of the offending Mahindra Cab and also its insurer. Incidentally, the petitioner is a permanent resident of Vaddivar Street, Puttaparthi Road, Kothacheravu Post. Ananthapur District. The owner of said vehicle 2nd respondent before Commissioner was permanent resident of Pamudi. Ananthapur District, in Andhra Pradesh State. The policy in respect of said vehicle was issued by 1st respondent in one of its branches of Ananthapur. 3. In the said proceedings Commissioner for Workmen’s compensation after appearance of respondents and after filing objections recorded evidence of claimant as PW. And of Doctor who treated him as PW.2 and marked Exs.P1 to P5 and proceeded to award compensation in a sum of Rs.2,74,176/- with interest at 12% from 19.2.2002 till date of realization payable by owner and insurer jointly and severally. The insurer of vehicle being aggrieved by the same has come up in this appeal on the following grounds. 4. Firstly on the ground that accident has taken place on 19.1.2002 in Penugonda, Ananthapur District, Andhra Pradesh State. The claimant and owner of offending vehicle are permanent residents of Ananthapur District, Andhra Pradesh. The policy covering offending vehicle was also issued in one of the branches of 1st respondent insurance company in Ananthapur who is appellant herein. 4. Firstly on the ground that accident has taken place on 19.1.2002 in Penugonda, Ananthapur District, Andhra Pradesh State. The claimant and owner of offending vehicle are permanent residents of Ananthapur District, Andhra Pradesh. The policy covering offending vehicle was also issued in one of the branches of 1st respondent insurance company in Ananthapur who is appellant herein. Therefore, under Section 21 of Workmen’s Compensation Act claimant should have filed claim petition in Andhra Pradesh within the limits of Ananthapur District. He could not have filed claim petition in Bangalore by giving a care of address for the sake of securing compensation for the injuries suffered in the accident. 5. The second ground on which the appeal was filed is admittedly policy was issued by appellant to cover passenger vehicle with 7 passengers and one driver and the said policy did not cover liability towards a cleaner. Incidentally, in the present case claimant stated that he was traveling in vehicle as cleaner at the relevant point of time. Therefore, the liability to pay compensation for the injuries suffered by him in the accident is not covered under the policy issued by it. Therefore, liability could not have been fastened on it. 6. The third ground is that in this appeal when matter was pending for service of notice the appellant insurance company has come to know that claimant has died on 4.6.2004 itself i.e., much prior to date of order passed by court below awarding compensation by its order dated 13.9.2004. Therefore, the order passed is in favour of deceased claimant and the same is required to be set aside. 7. In this proceedings, though notice was served on legal representatives of claimant they did not choose to participate, 2nd respondent owner who contested the claim petition by filing objections before the Commissioner did not enter appearance in this proceedings. 8. On appreciation of the grounds of appeal this Court find that the following substantial questions of law arise for consideration in this appeal: 1) Whether the Commissioner for Workmen’s Compensation. Bangalore had jurisdiction to consider the claim petition when admittedly the accident has taken place in Ananthapur District and the claimant as well as owner of vehicle, his employer and permanent residents of Ananthapur District? Bangalore had jurisdiction to consider the claim petition when admittedly the accident has taken place in Ananthapur District and the claimant as well as owner of vehicle, his employer and permanent residents of Ananthapur District? 2) Whether the Commissioner for Workmen’s Compensation was justified in fastening liability to pay compensation on appellant insurance company when admittedly policy did not cover liability towards cleaner? 3) Whether the order passed by the Commissioner for Workmen’s compensation subsequent to death of claimant survive in view of the fact that order is passed in favour of a dead-claimant? 9. Heard the Counsel for appellant perused the findings of the Commissioner for Workmen’s Compensation and as well as the oral and documentary evidence available on record. This Court answer the aforesaid three substantial questions of law in the negative for the following: REASONS 10. Section 21 of the Workmen’s Compensation Act, 1923 deals with the jurisdiction within which claim petitions will have to be filed by the injured employee, which reads as under:- 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 in which – (a) the accident book place which resulted in the injury; or (b) the employee or in case of his death, the dependent claiming 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 that, where the employee, being the master of a ship or a seaman or the captain or a member of the crew of an aircraft or an employee in a motor vehicle or a company, meets with the accident outside India any such matter may be done by or before a Commissioner for the area to which the owner or agent of the ship, aircraft or motor vehicle resides or carries on business or the registered office of the company is situate, as the case may be. (1A) If a Commissioner, other than the Commissioner with whom any money has been deposited under section 8, proceeds with a matter under this Act, the former may for the proper disposal of the matter call for transfer of any records or moneys remaining with the latter and on receipt of such a request, he shall comply with the same. (2) If a Commissioner is satisfied that any matter arising out of any proceedings pending before him can be more conveniently dealt with by any other Commissioner, whether in the same State or not, he may, subject to rules made under this Act. order such matter to be transferred to such other Commissioner either for report or for disposal, and, if he does so, shall forthwith transmit to such other Commissioner all documents relevant for the decision of such matter and, where the matter is transferred for disposal, shall also transmit in the prescribed manner any money remaining in his hands or invested by him for the benefit of any party of the proceedings: Provided that the Commissioner shall not, where any party to the proceedings has appeared before him, make any order of transfer relating to the distribution among dependants of a lump sum without giving such party an opportunity of being heard: (3) The Commissioner to whom any matter is so transferred shall, subject to rules made under this Act, inquire thereinto and, if the matter was transferred for report, return his report thereon or. If the matter was transferred for disposal, continue the proceedings as if they had originally commenced before him. (4) On receipt of a report from a Commissioner to whom any matter has been transferred for report under sub-section(2), the commissioner by whom it was transferred shall decide the matter referred in conformity with such report. (5) The State Government may transfer any matter from any Commissioner appointed by it to any other Commissioner appointed by it. 11. Admittedly, the accidentally has taken place in Penugonda within Ananthapur District. As could be seen from the cause title for claim petition permanent residential address of claimant and as well his employer who is owner of the offending vehicle is in Kothacheruvu, Ananthapur District. Incidentally, insurance policy is also issued by appellant from one of its branches at Ananthapur. 11. Admittedly, the accidentally has taken place in Penugonda within Ananthapur District. As could be seen from the cause title for claim petition permanent residential address of claimant and as well his employer who is owner of the offending vehicle is in Kothacheruvu, Ananthapur District. Incidentally, insurance policy is also issued by appellant from one of its branches at Ananthapur. Therefore, none of the provisions of Section 21 of the Act empowers claimant to file claim petition before Commissioner for Workmen’s Compensation, Bangalore. Therefore, inception of claim petition itself is bad in law. The Commissioner for Workmen’s Compensation who is duty bound to ascertain place of accident, place of residence of claimant and that of his employer before receiving claim petition for consideration has erred in accepting the same without there being jurisdiction for him to entertain the claim. 12. At this juncture before proceeding further, this Court would like to place on record, time and again it is seen that Commissioners for Workmen’s Compensation are in the habit of receiving claim petitions to respect of accidents which have taken place outside their territorial jurisdiction where admittedly neither claimant nor his employer are ordinary residents within its territorial jurisdiction with respect to which they have right to exercise their power under the Act. This clearly indicate the unholy nexus between claimants and Commissioner for Workmen’s Compensation in entertaining petitions which does not arise within their jurisdiction. In this behalf this Court and several other High Courts of the Country have time and again observed that respective State Governments should make necessary arrangements to see that jurisdiction of Commissioner for Workmen’s Compensation to try the claim petitions should be withdrawn and the same is either entrusted to Courts or to special Tribunals to be constituted to try and adjudicate such claims. Now in view of the amendment to Workmen’s Compensation Act which has come into force by Act 45/2009, wherein the Workmen’s Compensation is substituted by Employer’s Compensation Act by substantially amending Section 20, which deals with appointment of Commissioner, wherein the legislators in their wisdom have included the following class of persons or authorities to be appointed as Commissioner for Workmen’s Compensation, which reads as under: Section 20. Appointment of Commissioners:- (1) The State Government may, by notification in the Official Gazette, appoint any person (who is or has been a member of a State judicial Service for a period of not less than five years on advocate or a pleader or is or has been a Gazetted officer for not less than five years have having educational qualifications and experience is personnel management, human resource development and industrial relations) to be a Commissioner for employees Compensation for such area as may be specified in the notification. (2) Where more than one Commissioner has been appointed for any area, the State Government may, by general or special order, regulate the distribution of business between them. (3) Any Commissioner may, for the purpose of deciding any matter referred to him for decision under this Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under inquiry to assist him in holding the enquiry. (4) Every Commissioner shall be deemed to be a public servant within the meaning of the India Penal Code (45 of 1860). 13. In view of the aforesaid amendment, it is open for the State Government to appoint either judicial officers with experience of not less than five years of Advocates or Pleaders having practice of more than five years as Commissioner for Workmen’s Compensation as it is done in the case of Motor Vehicle Accidents Claims Tribunal. Industrial Tribunal and Consumer Disputes Redressal Form to prevent the abuse of process of law by Government employees who are neither trained to conduct judicial proceedings nor sufficiently equipped to decide the rights and liabilities of parties arising in claim petitions. Therefore, now time is ripe for the State Government to implement the amended provision of Workmen’s Compensation Act, 1923 which has come into force from 18.1.2010 to avoid abuse of the judicial process by these authorities. 14. Coming to second point for consideration, the policy issued by appellant insurance company which is produced and marked in evidence clearly discloses that liability of appellant under the said policy is covered to an extent of 7 passengers and one employee, which obviously means driver. The contention of counsel for appellant is that in view of the ratio laid down by the Apex Court in the matter of Ramashray Singh –vs-New India Assurance Co. The contention of counsel for appellant is that in view of the ratio laid down by the Apex Court in the matter of Ramashray Singh –vs-New India Assurance Co. Ltd., reported in AIR 2003 SC 2877 , in a passenger vehicle the Act provides for coverage of one employee i.e., either the driver or the conductor or person authorized to examine the tickets. Other than these persons no other person including kalasi will be entitled to the covered under the policy issued by insurance company. Therefore, in the instant case question of awarding compensation to a kalasi or cleaner for injuries suffered in the vehicle while discharging duty as cleaner does not arise. The finding of the Commissioner for Workmen’s Compensation accepting the claimant in the proceedings as cleaner traveling in the vehicle in the course of his employment and the injuries suffered by him as injuries suffered in the course of employment, for which he is entitled to compensation and the same is liable to be paid by the insurance company is contrary to the ratio laid down in the aforesaid judgment. 15. The relevant portion in the aforesaid judgment at paragraph 10 reads as under: The appellant’s first submission was that Shashi Bhushan Singh was a passenger The appellant’s submission that the phrases ‘any person’ and “any passenger” in Cls.(i) a (ii) of sub-section (b) to S. 147(1) are of wide amplitude, is correct. (See New India Assurance Company v. Satpal Singh and others, 2000(1) SCC 237 . However, the proviso to the sub-section carves out an exception in respect of one class of persons and passengers namely, employees of the insured, in other words, if the “person” or “passenger” is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to S.147(1)(b), it is clear that for the purposes of S.146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless; first; the liability of the insured arises under the Workmen’s Compensation Act, 1923 and second. If the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of “any person” or “passenger”. If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word “cleaner” while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmen’s Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger. 16. On appreciation of the arguments and the ratio laid down in the aforesaid judgment this Court find that in the instant caser claimant, 1st respondent herein has not established that under the policy which is issued by the appellant risk of the cleaner/kalasi was covered under the insurance policy as such insurance company is also liable to pay compensation awarded by Commissioner for Workmen’s Compensation. Therefore, the finding of Commissioner for Workmen’s Compensation so far as it pertains to fastening liability to pay compensation to claimant on insurance company is required to be set aside. Accordingly, the order so far as it pertains to fastening liability on insurance company is set aside. 17. Now coming to the third point for consideration, during pendency of this appeal at the time of service of notice to claimant/1st respondent herein it has come to the knowledge of this Court that claimant has died on 4.6.2004 i.e., much before the date on which the order was passed by the Commissioner awarding compensation to him. Therefore, the said order is passed in favour of deceased claimant. Therefore, the said judgment and order is non-est. Therefore, the said order is passed in favour of deceased claimant. Therefore, the said judgment and order is non-est. The same is required to be set aside and the matter is required to be remanded back to the Commissioner for Workmen’s compensation with a direction to issue notice to the legal representatives of deceased claimant and thereafter after service of notice shall transfer the claim petition to the jurisdictional Commissioner for Workmen’s Compensation to be decided in accordance with law. 18. With the above observations, the appeal filed by the appellant insurance company is allowed. The order passed by the Commissioner for Workmen’s Compensation WCA.B-2.NFC.CR.18/2002 dated 13.9.2004 is set aside. 19. The registry is directed to mark a copy of this judgment to the Secretary, to the Labour Department to take appropriate steps to ensure that the amended provisions of Workmen’s Compensation Act, 1923 resulted in substitution of Employee’s Compensation Act, 1923 to be implemented so far as it pertains to Section 20 in appointment of Commissioners to decide the claim petition filed by the Employees under the Act at the earliest. The amount in deposit be refunded to the appellant.