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2015 DIGILAW 1808 (PNJ)

National Insurance Company Limited v. Abhay Ram

2015-09-28

AUGUSTINE GEORGE MASIH

body2015
JUDGMENT : AUGUSTINE GEORGE MASIH, J. C.M. No. 20370-CII of 2015 1. Prayer in this application id for condonation of delay of 120 days in filing the appeal. For the reasons mentioned in the application, which is duly supported by the affidavit of the Administrative Officer, National Insurance Company Ltd., Chandigarh, the same is allowed. Delay of 120 days in filing the appeal stands condoned. FAO No. 6497 of 2015 2. Challenge in this appeal is to the order passed by the Commissioner under The Employee's Compensation Act, 1923, Jind, whereby the claim application preferred by the parents of the deceased Rajesh Kumar, Truck Driver, has been accepted and total compensation amounting to Rs. 9,10,835/- including interest and expenses has been ordered to be deposited within 60 days from the date of the order i.e. 24.02.2015, failing which the respondent No. 2 (appellant herein) has been held liable to pay interest at the rate of 12% per annum from the date of the order till the date of actual payment. 3. It is the contention of the learned counsel for the appellant that the claim application was not maintainable as the same had been filed after more than two years from the date of death of Rajesh Kumar deceased. He asserts that as per Section 10 of The Employees Compensation Act, 1923 (hereinafter referred to as 1923 Act'), the petition could not have been maintained beyond a period of two years and there is no application moved by the respondents for condoning the delay. That apart, he asserts that there is no evidence on record except for the bald statement of the respondents that they were dependent upon the deceased and further, there is no evidence on record that he was actually employed as a Driver with respondent No. 3 (herein). He, thus, contends that the impugned order cannot sustain and deserves to be set aside. 4. I have considered the submissions made by the counsel for the appellant and with his assistance, have gone through the impugned order as also the pleadings and the evidence brought on record, which is available with him. 5. He, thus, contends that the impugned order cannot sustain and deserves to be set aside. 4. I have considered the submissions made by the counsel for the appellant and with his assistance, have gone through the impugned order as also the pleadings and the evidence brought on record, which is available with him. 5. A perusal of the application and the evidence would show that earlier the claim application under Section 22 of the 1923 Act being case No. 40 WC/2003 was preferred by the respondents-claimants in the year 2003 itself before the Commissioner under the Workmen's Compensation Act, Kaithal, which was dismissed on the ground that the Court did not have jurisdiction to try and decide the claim and it was not maintainable before that Court. The said order is dated 05.12.2005 (Ex. R-I). This clearly would indicate that the Commissioner, Kaithal had not accepted the claim application on the ground that he did not have the jurisdiction to decide the same as the respondents-claimants were residents of Jind and had preferred the application in District Kaithal. The assertion of the counsel for the appellant, thus, that the claim application has been filed after a period of two years cannot be accepted as it is thereafter that the present claim application has been filed before the Commissioner, Jind. The Commissioner, in the impugned order, has dealt with this aspect and in the opinion of this Court rightly so keeping in view the fact that they had earlier approached by way of an application under Section 22 of the 1923 Act, which has not been entertained because the Commissioner, Kaithal, did not have the jurisdiction to entertain the same. The assertion of the counsel for the appellant, in this regard, that the claim application is barred under Section 10 of the 1923 Act, thus cannot be sustained. 6. The next contention, which has been raised by the counsel for the appellant, that in the pleadings, it has not been asserted that the respondents were dependents upon the deceased and, therefore, the requirement of Section 2(d)(i) & (iii) of the 1923 Act, which defines 'dependent', is not fulfilled and, therefore, no compensation could have been awarded to them. 7. This contention again cannot be accepted as in the pleadings, it has been stated that the respondents are dependents upon the deceased although the quantum of dependence is not specifically mentioned. 7. This contention again cannot be accepted as in the pleadings, it has been stated that the respondents are dependents upon the deceased although the quantum of dependence is not specifically mentioned. It has not been disputed that in their statements before the Commissioner, they have specifically stated that they were fully dependent upon the deceased Rajesh Kumar. 8. The assertion of the counsel for the appellant that there is no evidence on record that Rajesh Kumar was working as a Driver with respondent No. 3 (herein), the owner of the truck, suffice it to state that no appointment letters are issued where persons are appointed by the owners of the trucks especially where only one or two trucks are owned by the owner. It has come on record in the pleadings and in the statements of the respondents-claimants that their son Rajesh Kumar was employed as a Driver on monthly salary of Rs. 4,000/- per month by respondent No. 3-Harjeet Kaur on her truck No. HR-55B-2125, which met with an accident on the Highway Road near Railway Station, Chittorgarh in the area of Police Station Ganga Rai, District Chittorgarh (Rajasthan) where he unfortunately died. 9. The findings, thus, recorded by the Commissioner under the Employee's Compensation Act, 1923, Jind in his impugned Award dated 24.02.2005 do not suffer from any illegality, which call for any interference by this Court in the present appeal. 10. In view of the above, finding no merit in the present appeal, the same stands dismissed. C.M. No. 20371-CII of 2015 In the light of the dismissal of the main appeal, the present application withholding the amount deposited stands dismissed.