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Himachal Pradesh High Court · body

2017 DIGILAW 1244 (HP)

Oriental Insurance Company v. Santosh Devi

2017-11-10

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. Claimants No. 1 to 4, namely, Smt Santosh Devi, Master Naveen Thakur, Master Shubham Thakur and Master Mohit Thakur, were, in the initially instituted claim petition before the learned Commissioner, therein described to be respectively the widow and the minor sons of deceased employee Inder Singh, who therein was described to be begotten from the loins of one Surat Singh. Co-claimant No.5 was described to be the widow of one Surat Singh, son of Uday Singh, whereas, co-claimant No.6 was described therein to be the father of the deceased employee. 2. The aforesaid deceased Inder Singh, during the course of his holding employment under respondent No.1, suffered his demise, in an accident involving the ill fated vehicle, whereon, he stood engaged as a driver. Obviously, his demise occurred, during the course of his performing, employment under respondent No.1. Consequently, upon demise of deceased employee Inder Singh hence occurring, during the course of his performing employment under respondent No.1. (i) Thereupon, the claimants, instituted a claim petition, before the learned Commissioner concerned, wherein, they claimed compensation against the respondents impleaded therein, on anvil of theirs being jointly and severally liable, for liquidating the compensation amounts, as may, come to be determined by the Commissioner concerned. However, (ii) after adduction of evidence by the contesting parties upon the relevant issues, an application cast under the provisions of Order 6, Rule 17 of the Code of Civil Procedure (hereinafter referred to as the CPC), (iii) was instituted, before the Commissioner concerned, wherein, its leave was sought for incorporating in the claim petition, the hereinafter extracted averments:- “1(A) That the deceased late Sh. Inder Singh was natural son of Sh. Heera Singh, son of Sh. Uday Ram, who was given in adoption by Sh. Heera Singh to his brother Sh. Inder Singh was natural son of Sh. Heera Singh, son of Sh. Uday Ram, who was given in adoption by Sh. Heera Singh to his brother Sh. Surat Singh and his wife Smt. Jalmo Devi (the petitioners No.5 and 6, who were issueless), as such, the deceased Inder Singh was an adopted son of the petitioners No.5 and 6, to this effect Adoption deed was executed and registered on 03.04.1991 in the Office of Sub Registrar (Tehsildar), Tehsil Renuka ji at Sangrah, District Sirmour, H.P.” It was averred in the aforesaid application, that, the necessity of its institution being a sequel to (i) reflections occurring in the driving licence of deceased employee Inder Singh, qua his being fathered by Heera Singh, whereas, in the initially instituted claim petition, the name of the father, of, deceased Inder Singh being displayed as one Surat Singh. The application was contested by the Insurance Company, by its filing a detailed reply thereto. It was vigorously contended in the reply filed, to the application by the counsel for the Insurance Company, of the application being not maintainable, it being instituted belatedly also despite the aforesaid factum being within the knowledge, of the petitioner at the stage of theirs instituting the claim petition, (ii) thereupon, their omission to disclose the facts, as sought to, with the leave of the Court, hence, introduced in the claim petition, attracting the rigor of the mandate of the proviso, to Order 6 Rule 17 of the CPC, provisions whereof stand extracted hereinafter:- “17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” In the aforesaid proviso to Order 6, Rule 17 of the CPC, it is mandated that where “in spite of due diligence”, the facts in respect of whose incorporation, the leave of the Court, is sought, were yet thereat undiscoverable, thereupon, alone the apposite leave, for their incorporation being meted vis-a-vis the applicant concerned, (iii) whereas, with visible displays occurring in the application, of deceased employee Inder Singh, being given in adoption by his natural father, Heera Singh, vis-a-vis, his brother Surat Singh, thereupon, with the aforesaid reflections, being hence initially within the knowledge of the claimants, hence, warranted their inclusion in the initially instituted claim petition, (iii) whereas, the learned Commissioner, upon, considering the rival contentions of the parties at contest, allowing the application, has hence committed an illegality. The Insurance Company/petitioner herein, is aggrieved therefrom, hence, it has instituted the instant petition before this Court. 3. The learned Senior Counsel appearing for the petitioner herein, contended, of the application, cast under the provisions of Order 6, Rule 17 of the CPC, before the learned Commissioner, being, neither institutable nor maintainable before him, (i) given Rule 41 of the Workmen's Compensation Rules, 1924, provisions whereof stand extracted hereinafter:- “41. 3. The learned Senior Counsel appearing for the petitioner herein, contended, of the application, cast under the provisions of Order 6, Rule 17 of the CPC, before the learned Commissioner, being, neither institutable nor maintainable before him, (i) given Rule 41 of the Workmen's Compensation Rules, 1924, provisions whereof stand extracted hereinafter:- “41. Certain provisions of Code of Civil Procedure, 1908 to apply.-- Save as otherwise expressly provided in the Act or these rules the following provisions of the first Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rule 9 to 13 and 15 to 30; Order IX; Order XII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII, and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, in so far as they may be applicable thereto: Provided that: - (a) for the purpose of facilitating the application of the said provisions the Commissioner may construct them with such alternations not affecting the substance as may be necessary or proper to adapt them to the matter before him; (b) the commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provision, if he is satisfied that the interests of the parties will not thereby be prejudiced.” moreso, substantive provisions thereof expressly, (i) excepting the apposite provisions of the CPC specifically engrafted therein, hence, excluding other provisions thereof, vis-a-vis proceedings launched under the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act), AND also their diktat and vigor, (ii) where amongst, the unincluded provisions therein, of, the Code of Civil Procedure, are the ones borne in Order 6, Rule 17 CPC, (iii) thereupon, with express inclusion therein, of, the enumerated therein provisions of the Code of Civil Procedure, excepting the bones borne in Order 6, Rule 17 of the CPC, (iv) renders the provisions of Order 6, Rule 17 of the CPC, being construable, to, theirs being statutorily excluded from the ambit of apposite Rule 41, thereupon, the Commissioner holding, no, jurisdiction to pronounce the orders, impugned before this Court, (v) especially when they stood rendered, upon, an application cast under the provisions of Order 6, Rule 17 of the CPC, application whereof, was reiteratedly, not maintainable before him. 4. 4. The aforesaid submission addressed by the learned Senior Counsel appearing, for the petitioner/Insurance Company, has immense vigour, thereupon, inevitable corollary thereof, is (a) of the further submission addressed by him, before this Court, of, the mandate of the proviso occurring below Order 6, Rule 17 of the CPC, for reasons aforestated, remaining unaccomplished, thereupon, the affirmative impugned pronouncement, made, by the learned Commissioner upon Misc. Appl. No. 310/6 of 2011 on 9.11.2011, warranting interference, also not acquiring any formidable weight; (b) given for attracting clout thereof, it was imperative for the petitioner, for hence, excluding vis-a-vis claimants, the rigor of the mandate of proviso to Order 6, Rule, 17, CPC, to unveil emanations, from the substantive provision, of, apposite Rule 41 of the Workmen's Compensation Rules, of occurrence of inclusion therein, of, the provisions of Order 6, Rule 17 of the CPC, (b) whereas, contrarily with the apposite Rule, of the Workmen's Compensation Rules, rather for reasons aforestated. hence excluding, from its domain, the provisions of Order 6, Rule 17 CPC, also renders unattractable both the substantive provisions of 6, Rule 17 AND also the mandate of the proviso appended there underneath. Even if, this Court, forms the aforesaid inference, yet before recording any clinching pronouncement with respect to the validity or invalidity of the impugned pronouncement recorded by the learned Commissioner, it is also imperative to bear in mind clause (b) of the proviso appended underneath, the apposite Rule 41 of the Workmen's Compensation Rule, clause whereof reads as under: “(b) the commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provision, if he is satisfied that the interests of the parties will not thereby be prejudiced.” 5. The aforesaid clause, of, the apposite proviso, occurring underneath Rule 41, of, the Workmen's Compensation Rules, enables the Commissioner concerned, to, for sufficient reasons, proceed otherwise than in accordance with the substantive provisions occurring in Rule 41, of the Apposite Rules, 'only' upon his being satisfied that the interest of the parties will not thereby be prejudiced. The aforesaid clause, of, the apposite proviso, occurring underneath Rule 41, of, the Workmen's Compensation Rules, enables the Commissioner concerned, to, for sufficient reasons, proceed otherwise than in accordance with the substantive provisions occurring in Rule 41, of the Apposite Rules, 'only' upon his being satisfied that the interest of the parties will not thereby be prejudiced. Upon deep delvings into the innate nuance of the apposite clause, of the apposite proviso appended underneath Rule 41, of the apposite Rules, for hence uncovering its intrinsic spirit, it stands disinterred (i) that the words “proceed otherwise than in accordance with the said provision” being amenable, to, a construction of (i) theirs being carved as an exception vis-a-vis the mandate of the substantive provisions occurring in Rule 41 of the apposite Rules, (ii) thereupon, the effect of the substantive provisions of Rule 41, of, the apposite Rules, not including therein, the provisions borne in Order 6, Rule 17, CPC, non inclusion thereof, not restricting the Commissioner concerned, to upon his being satisfied that the interest of the parties will not thereby be prejudiced, hence, proceed to render a verdict (iii) without stricto senu, meteing reverence to the provisions of Order 6, Rule 17 of the CPC, rather for recorded sufficient reasons, only for safeguarding the interests of justice, (iv) besides for ensuring that unless a valid judicious pronouncement, is made upon the apposite application preferred before him, hence, grave prejudice would accrue to the parties at contest. (iii) Reiteratedly, dehors non inclusion of Order 6, Rule 17 of the CPC in the substantive provisions, of, the Rule 41, of the apposite Rules, to without making any strict compliance with the rigors of the provisions borne in Order 6, Rule 17 of the CPC, record an appropriate judicious pronouncements upon the relevant application, cast before him. Consequently, even if, the claimants inappropriately nomenclatured, their apposite application preferred before the learned Commissioner, to be, one under the mandate of Order 6, Rule 17 of the CPC, yet any misdenomination therein of the apposite provisions, cannot, for aforesaid reasons, per se, render construable the orders recorded thereon, to be infirm, nor per se thereupon, the apposite application is rendered not maintainable. 6. 6. Be that as it may, the aforesaid determination would not per se obtain any formidability, unless, all the ingredients stipulated in clause (b) of the proviso occurring underneath Rule 41 of the apposite Rules, comprised in (a) there being sufficient reasons; (b) in his making the pronouncement; (c) his ensuring justice being done and (d) the interest of the parties to lis, hence, being precluded, to beget any prejudice, beget evident satiation. For determining whether deference, was, meted vis-a-vis the ingredients borne in clause (b) of the proviso occurring underneath Rule 41 of the apposite Rules, “dehors”, the Commissioner making the pronouncement, within the purported domain of the provisions borne in Order 6, Rule 17 of the CPC, the imperative factum of (i) the apposite post postmortem report, carrying, the parentage of the deceased, as one Surat Ram; (ii) the apposite abstracts of the Parivar Register, displaying, of adoption of the deceased employee, being made by the brother of his putative father, (iii) whereupon, with identity of the deceased employee being prima facie established, (iv) whereas, the Insurance Company not adducing any evidence or material personificatory, of the deceased employee's identity, not, bearing any affinity with all the reflections, occurring, in the postmortem report or in the apposite abstracts, of the pariwar register, especially qua his adoptive father, being not Surat Ram, (v) whereas, the aforesaid factum being also displayed in the memo of parties occurring in the earlier instituted claim petition, corollary whereof, is of (vi) unless the aforesaid clarificatory factum was permitted to be incorporated in the claim petition, thereupon, contradictory thereto, reflections occurring in the driving licence of deceased employee Inder Singh, especially his being reflected therein to be fathered by his putative father, Heera Singh, would sequel befallment, of grave injustice besides imperative prejudice, upon the claimants, comprised in theirs being deprived to upon his demise, hence canvass a claim for compensation vis-a-vis them. Fakeness, if any, of the driving licence, spurring from the reflections occurring therein, specifically with respect to his being fathered by his putative father, may not, subject to an appropriate appraisal being meted thereto vis-a-vis verdicts of the Hon'ble Apex Court, wherein, it is expostulated, that, meteings of satiation vis-a-vis the mandate of Section 3 of the Act, being a sine qua non for awarding of compensation, upon an application preferred within its domain, (vii) In aftermath, the factum of the deceased employee, not, at the time contemporaneous to the ill fated mishap involving the vehicle whereon he was engaged as driver, hence, not purportedly possessing any valid driving licence to drive it, may not be a relevant factum for resting the fate of the apposite application. 7. For all the foregoing reasons, the instant petition is dismissed and the impugned order is maintained and affirmed. However, the insurance company is at liberty, to yet delink the identity of the deceased vis-a-vis the one reflected in the memo of parties, by adducing cogent evidence. No order as to costs. All pending applications also stand disposed of.