Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 2819 (RAJ)

Oriental Insurance v. Deviram

2011-12-23

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—The non-applicant-appellant-Insurance Company has preferred this Civil Misc. Appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter to be referred as 'the Act') against the judgment and award dated 24.5.2008 passed by the Workmen's Compensation Commissioner, Alwar in Claim Case No.20/2006 whereby an award of Rs.2,21,004/- alongwith interest @ 12% per annum from the date of accident has been passed. 2. The brief relevant facts for the disposal of this Civil Misc. Appeal are that Shri Devi Ram, who was employed as a driver on the vehicle (truck) bearing registration No.RNG-2665, owned by respondent-Shri Mehar Chand received serious injuries and as a result thereof both of his legs and one of his hand were amputated. In order to claim compensation, Shri Devi Ram filed a Civil Suit under the provisions of the Fatal Accident Act before Additional District Judge, Kishangarhbas which was registered as Civil Suit No.62/2004. That suit was filed on 21.3.96 and in that suit admittedly the appellant-Insurance Company was not made a party. During the course of that suit the injured-Shri Devi Ram filed an application under Order 23 Rule 1 read with Section 151 CPC with a prayer that he may be allowed to withdraw the suit and the same was allowed by the Court vide order dated 5.10.2005 and the plaint was returned with a liberty to Shri Devi Ram to file a claim petition before a competent Court. Thereafter, Shri Devi Ram filed the present claim petition under the provisions of the Act before the learned Commissioner on 10.11.2005 claiming therein compensation as well as interest and penalty amount. The appellant and respondent No.7 filed their respective reply and the learned Commissioner after recording evidence and hearing the parties passed the impugned judgment and award. It was ordered that the appellant-Insurance Company shall pay Rs.2,21,004/- as compensation and shall also pay interest @ 12% per annum on this amount from the date of accident i.e.24.12.95 till the amount is paid to the claimants. It is to be noted that during pendency of the claim petition, the claimant-injured-Shri Devi Ram died on 14.6.2007 and in place of him his dependents respondents No.2 to 6 were substituted. Feeling aggrieved, the appellant-Insurance Company is before this Court by way of this Appeal. 3. It is to be noted that during pendency of the claim petition, the claimant-injured-Shri Devi Ram died on 14.6.2007 and in place of him his dependents respondents No.2 to 6 were substituted. Feeling aggrieved, the appellant-Insurance Company is before this Court by way of this Appeal. 3. Although, to assail the impugned judgment and award in the memo of appeal several grounds have been taken but during the course of hearing of the appeal, the learned counsel for the appellant raised only the following grounds:- (i) As during the pendency of the claim petition, the injured-claimant-Shri Devi Ram died on 14.6.2007 and as the claim was for the personal injuries sustained by him, with the death of the claimant, the claim petition abated and right to sue did not survive on his legal representatives or dependents and, therefore, the claim petition was liable to be dismissed as abated but the learned Commissioner without assigning any reasons allowed the respondents to continue the claim petition and ultimately wrongly allowed the claim petition in their favour. It was submitted that there was no previty of contract between the appellant-Insurance Company and the injured, who subsequently died during the pendency of the claim petition and the liability against the appellant being tortious liability, that liability came to an end with the death of the claimant. It was further submitted that in such matters, right to sue may survive only if the liability is contractual. (ii) the claim petition was hopelessly time barred as it was filed before the Commissioner after 10 years from the date of the occurrence of the accident whereas according to Section 10 of the Act, the claim petition is to be preferred within two years from the occurrence of the accident. The learned Commissioner did not consider the point regarding limitation although from the facts available before him, it was very much clear that the claim petition has been filed much after the prescribed period. Although, objection regarding limitation was not specifically taken by the appellant in the reply filed before the Commissioner, but this point being a purely legal in nature, it can be taken and considered at any stage of the proceedings. Although, objection regarding limitation was not specifically taken by the appellant in the reply filed before the Commissioner, but this point being a purely legal in nature, it can be taken and considered at any stage of the proceedings. It was also contended that provisions of Indian Limitation Act do not apply to the proceedings under the Act and, therefore, the delay made in preferring the claim petition was not liable to be condoned under Section 5 of the Limitation Act. Similarly, the time taken in pursuing the Civil Suit under the provisions of the Fatal Accident Act before the Civil Court cannot also be set-off. Therefore, the claim petition was liable to be dismissed being time barred. (iii) It is an admitted fact that in the Civil Suit the appellant Insurance Company was not a party and intimation regarding accident was received by the appellant only when notice of the claim petition was given to it. In such circumstances the appellant could not be held liable to pay interest from the date of accident i.e. 24.12.95to the date on which intimation of the accident was given to it but even then the learned Commissioner has ordered that the appellant shall pay interest from the date of accident till the amount is paid to the claimants. At the most the appellant can be held liable to pay interest from the date on which intimation about accident was given to it. In support of his submissions, the learned counsel for the appellant relied on the cases of Kaniji Bi vs. Mines Manager, Damua Colliery, Western Coalfields Ltd. Reported in 2010 ACJ 313 (MP High Court), Naseeban & anr. vs. Surendra Pal & ors. Reported in I (1995) ACC 537 (Raj.High Court) and M.Veerappa vs. Evelyn Sequeira & ors. Reported in AIR 1988 SC 506 . 4. vs. Surendra Pal & ors. Reported in I (1995) ACC 537 (Raj.High Court) and M.Veerappa vs. Evelyn Sequeira & ors. Reported in AIR 1988 SC 506 . 4. On the other hand, the learned counsel for the respondents by supporting the impugned order, submitted as below:- (i) The liability to pay compensation is neither tortious nor contractual but it is a statutory liability under the provisions of the Act and the liability to pay compensation arises as soon as the accident occurs and as a result of that an employee/workman is injured or death is caused and, therefore, the liability to pay compensation is a “debt payable” to the injured workman and on his death, it passes to his heirs or dependents and only due to death the claim petition does not abate. In the present case, the injured-workman-Shri Devi Ram died during pendency of the claim petition but only by that reason it cannot be said that the claim petition abated and the right to sue did not survive on the heirs or dependents of the deceased. (ii) No objection regarding limitation was taken by the appellant before the Commissioner either by filing reply or during the course of hearing and, therefore, the appellant cannot be allowed to raise this question for the first time in this appeal. The objection regarding limitation is not a pure question of law liable to be raised any stage of the proceedings, but it is a mixed question of law and fact and unless specific objection is taken about it at the first opportunity, it cannot be taken subsequently and more particularly for the first time in the appeal. Apart from that, the Commissioner has jurisdiction to condone the delay caused in preferring the claim petition if sufficient cause is shown for the same. In the present matter Shri Devi Ram was bonafidely pursuing the Civil Suit under the provisions of the Fatal Accident Act before a competent Civil Court on a legal advise received by him and subsequently on the application made by him to withdraw the suit, the plaint was returned with a liberty to file claim petition before a competent Court, he was entitled to claim condonation of delay for the period for which the suit remained pending. It is pertinent to note that the plaint was returned vide order dated 5.10.2005 and the claim petition was preferred without any unreasonable delay on 10.11.2005 before the Commissioner. It was also submitted that the provisions of the Act are beneficial in nature and, therefore, each and every provisions of the Act should be liberally interpreted. The respondents cannot be deprived from receiving the compensation amount only by the reason that the claim petition has been preferred after the lapse of prescribed period of limitation . If a party bonafidely pursue an alternative remedy to receive compensation on a wrong legal advise, in the eye of law it is a sufficient cause to condone the delay. (iii) Although, the appellant-Insurance Company was not a party to the Civil Court filed by Shri Devi Ram but the fact of accident and injuries caused to him came into the knowledge of employer soon after the accident and it was the duty of the employer to give intimation to his insurer i.e. the appellant-Insurance Company. If by any reason the employer failed to intimate the appellant-Insurance Company, only by that reason the appellant cannot escape from his liability to pay interest f rom the date of accident itself. In support of his submissions, the learned counsel for the respondents relied upon the cases of Margarida Gomes & anr. vs. Messrs Mackinnon Mackenzie & Co.Pvt.Ltd. Bombay reported in AIR 1968 Bombay 328 and M/s Manubhai Kikabhai & Co.Bombay vs. Shri Babajee Rajaram since deceased by his proposed heir: Smt.Baiyobai Rajaram reported in AIR 1970 Bombay 267. 5. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law relied upon on behalf of the parties. My findings with reasons on each of the issues raised are as follows: (i) A reading of the provisions of the Act and more particularly of Section 3 and 4-A clearly indicates that the injured-workman becomes entitled to compensation the moment he suffers personal injuries of the type contemplated by the provisions of the Act. Hon'ble Bombay High Court in the case of Margarida Gomes & anr. Hon'ble Bombay High Court in the case of Margarida Gomes & anr. vs. Messrs Mackinnon Mackenzie & Co.Pvt.Ltd. Bombay (supra) has held that “the liability to pay compensation is created immediately on the accident occurring to the workman suffering injury and must amount to a debt payable to the workman and passes on to the heirs of the workman on his death, and does not abate. Section 306 of the Succession Act, 1925 has no application to such a case.” It is well settled that the liability to pay compensation under the provisions of the Act is neither a tortious liability nor a contractual but it is a statutory one. No negligence or misconduct on the part of the employer is required to be shown or proved. It is therefore, no fault liability. The employer is bound to deposit compensation suo-moto as soon as it falls due. Compensation provided by the Act is in the nature of insurance and not a remedy for negligence. Although, in the present case the claim petition was filed for claiming compensation for the personal injuries sustained by Shri Devi Ram but the liability to pay compensation not being a tortious liability, the claim petition cannot be said to have abated on death during pendency of the claim petition. This contention of appellant is not acceptable that the liability of the appellant being tortious in nature, that liability came to an end with the death of the claimant. Therefore, the view expressed by the Hon'ble Supreme Court in the case of M.Veerappa vs. Evelyn Sequeira & ors. is not applicable to the facts of present case by the reason that according the Hon'ble Court the suit for claiming damages abates if claim is founded on torts. So far as, the decision of this Court in the case of Naseeban & anr. Surendra Pal & Ors. (supra) is concerned, the facts of that case being entirely different from the present case, the view expressed in that case also is not of any help to the appellant. That case was for claiming compensation in a motor accident in which the liability to pay compensation is a tortious liability and unless negligence on the part of the driver is proved, compensation cannot be claimed whereas in the present case the liability is wholly statutory. That case was for claiming compensation in a motor accident in which the liability to pay compensation is a tortious liability and unless negligence on the part of the driver is proved, compensation cannot be claimed whereas in the present case the liability is wholly statutory. (ii) Section 10 of the Act provides that no claim for compensation shall be entertained by a Commissioner unless the claim is preferred before him within two years of the occurrence of the accident or, in case of death within two years from the date of death. The proviso further provides that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the claim has not been preferred in due time if he is satisfied that the failure to prefer the claim was due to sufficient cause. Thus, in the light of this provision, it is correct to contend that in the present case the claim petition should have been preferred within two years from the date of accident i.e.24.12.95 and thus, it was time barred as it was filed before the Commissioner after 10 years from the date of the accident, but at the same time the proviso provides that even if the claim has not been preferred within the prescribed period, the Commissioner can entertain it if sufficient cause is shown to his satisfaction. The proviso appears to be similar to Section 5 of the Indian Limitation Act which provides that if sufficient cause is shown, the Court may condone the delay in filing an appeal or application. It is well settled that normally a matter should be decided on merit and it cannot be thrown out from consideration on technical objection like limitation unless it is found that the party was negligent and slept over his rights and no sufficient cause was shown for condoning the delay made in filing the matter before the Court. It has also been held that in these matters normally liberal view must be taken. The Act is a piece of social security welfare legislation, therefore, interpretation which would advance salutary object and intendment of the Act should be adopted. It is very much clear that if sufficient cause is shown to the satisfaction of the Commissioner, he is empowered to entertain and decide the claim petition even if it has been preferred after lapse of period of two years. It is very much clear that if sufficient cause is shown to the satisfaction of the Commissioner, he is empowered to entertain and decide the claim petition even if it has been preferred after lapse of period of two years. What is “sufficient cause” would depend upon the facts and circumstances of a particular case. In the present case, it is clear that the accident occurred on 24.12.95 and injured-Shri Devi Ram filed a Civil Suit under the provisions of the Fatal Accident Act claiming compensation perhaps upon the legal advise received by him within the time prescribed for such suit on 21.3.96. That suit remained pending for more than 9 years and when it was found by him, perhaps again on a legal advise, that the better course or only course for him is to prefer claim petition under the provisions of the Act, he moved an application under Order 23 Rule 1 CPC with a prayer that he may be allowed to withdraw that suit and the concerned Civil Court allowed that prayer vide order dated 5.10.2005 and the plaint was returned to him with a liberty to file a claim petition before a competent Court. After that without any undue delay Shri Devi Ram preferred the present claim petition on 10.11.2005 before the Commissioner. It is thus, clear that a long period of more than 9 years was wasted in bonafidely pursuing an alternative remedy on a wrong legal advise. In my view it was a sufficient cause to condone the delay in preferring the claim petition. It is also clear that an application was also filed to condone the delay alongwith the claim petition on 10.11.2005. Although, a separate application for condoning the delay was filed by the claimant, but no order either allowing or disallowing that application has been passed by the learned Commissioner. It also appears that no objection regarding limitation was taken either by the appellant or the respondent-employer. In the facts and circumstances of the case, even if the Commissioner failed to consider the issue regarding limitation, I am of the view that this appellate Court can go into it for the first time in this appeal. It also appears that no objection regarding limitation was taken either by the appellant or the respondent-employer. In the facts and circumstances of the case, even if the Commissioner failed to consider the issue regarding limitation, I am of the view that this appellate Court can go into it for the first time in this appeal. Looking to the relevant facts, which are almost undisputed and also the prevalent legal position, I am of the view that the delay made in preferring the claim is liable to be condoned as the claimant has been able to show that a sufficient cause prevented him in preferring the claim within the prescribed period of two years. In the facts and circumstances of the case, it cannot be said that the claimant was negligent or inactive in pursuing the remedy available to him for claiming compensation or he slept over his rights. (iii) It is an admitted fact that in the Civil Suit filed by the claimant under the provisions of Fatal Accident Act, the appellant-Insurance Company was not a party and soon after the accident, the respondent-employer did not inform the appellant regarding the accident and injuries received by the claimant and the intimation regarding it was received by the appellant only when notice issued by the Commissioner was served upon it. A perusal of provisions of the Act reveals that it is the primary duty of the employer either to deposit the compensation amount within one month from the date of accident or to inform the Insurance Company about its liability soon after the accident. I am in agreement with the contention made on behalf of the appellant that in the present case as the respondent-employer failed to intimate the appellant-Insurance Company about accident and the resultant injuries received by the claimant, the appellant cannot be held liable to pay interest from the date of accident i.e. 24.12.95 to the date on which intimation of the accident was given to it. I am also of the view that the appellant can be held liable to pay interest only from the date on which intimation regarding accident was received by it till the payment is made by it to the claimants. The learned Commissioner has wrongly awarded interest to be paid by the appellant for the whole period. I am also of the view that the appellant can be held liable to pay interest only from the date on which intimation regarding accident was received by it till the payment is made by it to the claimants. The learned Commissioner has wrongly awarded interest to be paid by the appellant for the whole period. I am of the view that for the period from the date of accident to the date on which intimation of the accident was received by the appellant the respondent-employer is liable to pay interest. Therefore, that part of the award is liable to be modified accordingly. 6. To assail the impugned judgment and award, no other submissions were made on behalf of the appellant. As discussed above, the contention of the appellant to that extent is liable to be accepted that the appellant-Insurance Company is not liable to pay interest for the period from the date of the accident i.e. 24.12.95 to the date on which the intimation regarding accident was received by it. The rest of the contentions are liable to be rejected. Consequently, the appeal is partly allowed and that part of the judgment and award dated 24.5.2008 passed in Claim Case No.20/2006 is set aside by which interest @ 12% per annum was ordered to be paid by the appellant-Insurance Company for the period from the date of accident i.e. 24.12.95 and it is modified in the terms that from the date of accident i.e. 24.12.95 to the date of intimation received by the appellant-Insurance Company, the interest @ 12% per annum shall be paid by the respondent-employer. The appellant is liable to pay interest only from the date of intimation till the date the compensation amount is paid by it to the claimants. The rest of the judgment and award is affirmed and maintained. No order as to costs.