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2018 DIGILAW 1382 (HP)

Oriental Insurance Company v. Brij Lal

2018-07-25

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. Award dated 23.12.2010 passed by learned Commissioner (SDM) under Workmen Compensation Act, Sarkaghat, District Mandi, H.P. in an application under Section 22 of the Act, registered as Case No. 4/06, is under challenge in the present appeal. 2. Respondent No. 1 herein is the claimant. He was driving truck No. HID-4318 of respondent No. 2 Ramesh Chand. On 12.03.1998, the truck while on its way from Dehar to Kala Amb loaded with Khair wood met with an accident near tax barrier at Nahan, District Sirmour, H.P. The retaining wall of the road collapsed when the petitioner was giving pass to another vehicle. As a result thereof, the truck fell down and the petitioner received multiple injuries, grievous in nature on his person including head injury. He remained hospitalized at Nahan and PGI Chandigarh for about one year. In this accident, he has received 100% disability, permanent in nature. At the time of accident, he was being paid Rs. 4,000/- by way of his salary. The truck involved in the accident was admittedly insured with appellant-insurance Company, respondent No. 2 before learned Commissioner below. The petitioner, as such, has claimed the compensation to the tune of Rs. 15,00,000/-. 3. Respondent No. 2 herein owner of the truck when put to notice has contested the claim petition on the ground of maintainability and also being time barred. On merits, he has admitted that the petitioner was engaged as Driver by him with his truck No. HID-4318 and also that the truck met with an accident and the petitioner-claimant received injuries on his person. The monthly salary according to respondent-owner was Rs. 300/-. 4. Respondent No. 2, appellant herein has also raised the preliminary objections qua limitation and the petition is hit by the principle of res-judicata. The claim of the petitioner was denied by the appellant. 5. Rejoinder was also filed. 6. On the pleadings of the parties following issues were framed:- 1. Whether the present petition is within limitation? OPR. 2. Whether the petition is barred by principle of res-judicata? OPR. 3. Whether the petition has been drafted under the proforma of WC Act? OPR 4. Whether the injured was workman within the purview of W.C. Act and injury sustained during the course of his employment and incidental to employment? OPP. 5. Whether the present petition is within limitation? OPR. 2. Whether the petition is barred by principle of res-judicata? OPR. 3. Whether the petition has been drafted under the proforma of WC Act? OPR 4. Whether the injured was workman within the purview of W.C. Act and injury sustained during the course of his employment and incidental to employment? OPP. 5. Whether the sustained injury has caused loss to the earning capacity of the petitioner and to what extent? OPP. 6. Relief. 7. Learned Commissioner below after taking on record the evidence and hearing the parties on both sides has condoned the delay as occurred in filing the claim petition while answering issues No. 1 to 3 against the respondents, whereas, issues No. 4 and 5 in favour of the petitioner and has awarded a sum of Rs. 4,70,152/- as compensation to the petitioner-claimant vide impugned award dated 23.12.2010. 8. The legality and validity of the impugned award has been questioned on various grounds, however, mainly that the previously instituted petitions under the Motor Vehicles Act and under the Workmen Compensation Act having been dismissed, the claim petition filed subsequently was hit by the principle of res-judicata. Also that, the petition being time barred and there being no application filed for condonation of delay, should have not been entertained. 9. On hearing learned counsel representing the parties and going through the record, true it is that the petitioner initially instituted the claim petition before learned Motor Accident Claims Tribunal, Mandi. The same however, was dismissed in default, as is apparent from the order dated 26.03.1999 passed by learned Motor Accident Claims Tribunal (II), Mandi, certified copy whereof is available on record. Therefore, there is no adjudication on merits in the said claim petition. True it is that the wife of the petitioner-claimant Smt. Narmada has filed another application on 17.12.1999 before Commissioner (SDM), under Workmen Compensation Act, Sadar, Mandi, H.P. The same was also dismissed vide order dated 21.06.2002 on the ground of jurisdiction as in the opinion of learned Commissioner, it is the workmen Compensation Commissioner, Sarkaghat had the jurisdiction to entertain, try and decide the same. Certified copy of order whereof is also available on record. It is thus seen that there is no adjudication on merits. Certified copy of order whereof is also available on record. It is thus seen that there is no adjudication on merits. After dismissal of the claim petition filed by the wife of the petitioner on 21.06.2002, this petition was presented before learned Commissioner under Workmen Compensation Act, Sadar, Sub-Division, Mandi, H.P. on 17.04.2003. The same, however, was subsequently transferred vide order dated 24.10.2006 to the Commissioner under Workmen Compensation Act, Sarkaghat, District Mandi, H.P. vide order dated 24.10.2006. The same, therefore, came to be re- registered at Sarkaghat on 7.11.2006. It is, therefore, seen that the claim petition initially was filed in the Court of learned Motor Accident Claims Tribunal (I), Mandi, H.P. on 18.08.1998. The same was dismissed in default vide order dated 26.03.1999. The subsequent petitioner under workmen Compensation Act was filed by the wife of the petitioner on 17.12.1999. The same was dismissed for want of jurisdiction on 21.06.2012. The present petition thereafter came to be instituted on 17.04.2003. There is no question of the same being time barred. The claim petition is also not hit by the principle of res-judicata because there is no adjudication of the claim of the petitioner on merits and rather the two claim petitions earlier instituted were dismissed on technical grounds i.e. in default amendment and for want of jurisdiction. Otherwise also, by way of amendment in the amended claim petition, the explanation was given for delay as occurred and learned Commissioner below has allowed the amendment in the petition. Therefore, the point urged on behalf of insurer-respondent No.2 that the petition being time barred, should have not been entertained, has also no legs to stand. Therefore, neither the claim petition is time barred nor the same is hit by the principle of res-judicata. Learned Commissioner below has decided such questions on appreciation of the pleadings of the parties and also the material available on record in its right perspective. 10. For all the reasons discussed hereinabove, there is no merit in this appeal and the same is accordingly dismissed. Pending applications, if any, shall also stand disposed of.