The United India Insurance Co Ltd vs Prasannkuvarba Jasvantsinh ...

     C/FA/350/2023                                 JUDGMENT DATED: 20/02/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 350 of 2023
                                     With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                       In R/FIRST APPEAL NO. 350 of 2023

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                             Sd/-

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1    Whether Reporters of Local Papers may be allowed to see             NO
     the judgment ?

2    To be referred to the Reporter or not ?                             NO

3    Whether their Lordships wish to see the fair copy of the            NO
     judgment ?

4    Whether this case involves a substantial question of law as         NO
     to the interpretation of the Constitution of India or any
     order made thereunder ?

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                 THE UNITED INDIA INSURANCE CO LTD
                               Versus
           PRASANNKUVARBA JASVANTSINH ALIAS JASUBHA ZALA
=============================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
for the Defendant(s) No. 6
MR AJAY L PANDAV(3660) for the Defendant(s) No. 5
MR. NIMIT Y. SHUKLA for ROHANKUMAR H RAVAL(8337) for the
Defendant(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 20/02/2023

                              ORAL JUDGMENT

C/FA/350/2023 JUDGMENT DATED: 20/02/2023

1. Admit. Learned Advocate Mr. Nimit Y. Shukla for learned Advocate Rohankumar H Raval waives service of notice of admission on behalf of the respondent Nos.1 to 4. With the consent of learned Advocate appearing for the both the sides, First Appeal is taken up for final disposal.

2. This First Appeal is preferred against the judgment and award passed by the Workman Compensation Commissioner, Surendranagar in WC (Fatal) Case No.5 of 2013 dated 31-08-2019.

3. By the impugned judgment and award, amount of Rs.5,00,000/- was ordered to be paid with 6% interest to the claimants and penalty of Rs.2,50,000/- was ordered to be paid by the respondent No.5 and 6 herein.

4. At the outset, it is submitted by learned Advocate appearing on behalf of the Appellant-Insurance Company (Original Opponent No.3) and learned Advocate representing original claimants that on certain conditions, the matter may be remanded back to the Workman Compensation Commissioner for afresh proceedings. This submission is made primarily because of stand of the Appellant-Insurance Company that on account of the miscommunication between the Insurance Company and its Advocate before the Workman Compensation Commissioner, entire proceedings had gone unattended.

5. Learned Advocate for the appellant has submitted that as there was sufficient interest of the Insurance Company involved and they had right to oppose the proceedings under the compensation in so far as their liability is concerned, they ought to have been provided with sufficient opportunity to make out their case. It is only on account of miscommunication that they were prevented in doing so and therefore, learned Advocate has cited several instances, where this Court has adopted modalities while remanding the matter back to the Workman Compensation Commissioner/Tribunal and while doing so, has Page 2 of 5 Downloaded on : Tue Feb 21 20:53:24 IST 2023 C/FA/350/2023 JUDGMENT DATED: 20/02/2023 permitted proportionate disbursement in favour of the claimants.

6. Learned Advocate for the appellant has submitted that already amount as ordered by the Workman Compensation Commissioner, has been deposited and is lying as such with the Labour Court at Surendranagar and would not object to proportionate disbursement of amount thus deposited, if the matter is remanded back.

7. As against this, learned Advocate appearing for the claimant has submitted that the Insurance Company was very much in know of the proceedings. Learned Advocate has drawn attention of this Court particularly to Para-2 of the impugned judgment and award to indicate that the Workman Compensation Commissioner has recorded the fact of effecting of service upon the Insurance Company and other respondents, despite there does not appear to be any efforts being made by either of the respondents to remain present in the proceedings.

8. The Court has observed that in so far as the private respondents are concerned, qua them also the matter had proceeded ex-parte and they have chosen not to appear before the Workman Compensation Commissioner as well.

9. Today, learned Advocate, who appears on behalf of the private respondents, has filed sick note. However, considering the aforesaid fact of the respondent not remaining present before the Workman Compensation Commissioner and the fact that they are today for consideration is only to remand the matter back, the Court deems it fit to proceed further with the matter with the consent of learned Advocate appearing for the both the sides before this Court.

10. The Court has perused the impugned judgment and award and the discussion therein clearly indicates that upon recording of the evidence on the part of the claimant, there is complete lack out with regard to the evidence or any pleadings on behalf of the Insurance Company or the private respondents.

C/FA/350/2023 JUDGMENT DATED: 20/02/2023

11. At this stage, the Court has also considered the decision of the Division Bench of this Court of-course in the case of Motor Accident Claim, wherein also the Insurance Company was faced with the similar situation, where the Advocate inadvertently fail to represent interest of the Insurance Company in the proceedings before the Tribunal. The Division Bench had adopted procedure by which the matter was remitted back to the concerned Tribunal with the directions to permit the part disbursement of 30% of the compensation lying with the Tribunal immediately in favour of the claimants. Additionally, learned Advocate has submitted that regardless of the outcome of such compensation petition, the Insurance Company will not claim refund of the amount thus disbursed under this Order.

12. Having considered the rival submissions of the parties and particularly the concession offered by the Insurance Company, the Court deems it fit to quash and set aside the judgment and award passed by the Workman Compensation Commissioner, Surendranagar in WC (Fatal) Case No.5 of 2013 dated 31-08-2019 and the case is remitted back to the same Authority namely the Workman Compensation Commissioner, Surendranagar for afresh proceedings to be conducted as expeditiously as possible preferably within a period of one year from today.

13. All the parties are directed to cooperate with the proceedings and all the parties are directed to remain present before the Workman Compensation Commissioner, Surendranagar on 15-03-2023, so as to prevent confusion regarding issuance of notice and remaining present before the the Workman Compensation Commissioner. The Workman Compensation Commissioner / the Labour Court is directed to disburse 30% of the amount, which is lying as deposit under the order dated 31- 08-2019 in WC (Fatal) Case No.5 of 2013 within a period of three weeks from today, after due verification of the claimants. 70% of the amount thus deposited is ordered to be deposited in cumulative Fixed Page 4 of 5 Downloaded on : Tue Feb 21 20:53:24 IST 2023 C/FA/350/2023 JUDGMENT DATED: 20/02/2023 Deposit with the Nationalized Bank with the Fixed Deposit Receipts with the Nazir of the Labour Court.

14. In view of the aforesaid,the First Appeal stands allowed.

15. In view of the order passed in the First Appeal, the Civil Application does not survive and stands disposed of accordingly.

Direct service is permitted.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA Page 5 of 5 Downloaded on : Tue Feb 21 20:53:24 IST 2023