New India Assurance Co. Ltd. vs Smt. Shadab And 5 Others
2017 Latest Caselaw 4235 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2670 of 2014
 

 
Appellant :- New India Assurance Co. Ltd.
 
Respondent :- Smt. Shadab And 5 Others
 
Counsel for Appellant :- S.K. Mehrotra
 
Counsel for Respondent :- Komal Mehrotra
 

 
Hon'ble Saumitra Dayal Singh,J.

This appeal has been filed by the insurer against the award dated 19.08.2014 passed by the Commissioner, Workmen's Compensation/Deputy Labour Commissioner, Lohiya Nagar, Ghaziabad (hereinafter referred to as the Commissioner) in W.C.A. Case No. 280 of 2009 arising out of the accidental death of Zafaryab @ Zafar while he was driving a truck bearing registration no. HR 38 M - 3533 insured by the present appellant. The said claim has been allowed and the Commissioner, Workmen's Compensation has awarded Rs. 3,68,340/- to the claimant-respondents. Learned counsel for the appellant has pressed this appeal on the following substantial questions of law:-

"1. Whether in the absence of any evidence in regard to relationship of employer and employee between the owner of vehicle in question and the claimant, the claim petition was maintainable before Workmen's Compensation Commissioner?

2. Whether in view of Section 21 of W.C. Act the claim petition in Ghaziabad court was maintainable?

3. Whether without framing proper issues as provided Under Rule 28 of the rules framed in the W.C. Act and without giving specific finding on the point of employment and cause of death, the impugned award is sustainable in law?

4. Whether interest on compensation amount could be awarded against appellant-insurance company?"

The first question of law does not arise in the present case inasmuch as the Commissioner has, on the second page of his order, clearly recorded the fact that in the written statement filed by the truck owner/employer, it had been stated, the deceased Zafar was engaged to drive the insured truck against payment of wages @ 4,000/- per month. In view of such specific statement made in the written statement of the owner it cannot be said, there was any evidence required to be led by the claimants to establish existence of master-servant relationship between the deceased Zafar and the owner of the truck (M/s Transline Logistic Pvt. Ltd). The appellant-insurer though denied that relationship, but it did not plead fraud or collusion (between the owner/employer and the claimants). Thus, question no. 1 does not arise in the instant case.

In respect of question no. 2, learned counsel for the appellant submits, in the written statement by means of paragraph 23 specific objection had been raised by the appellant-insurer as to jurisdiction of the Commissioner, Ghaziabad but he neither framed any issue in that regard nor decided the same.

Opposing the argument so made, learned counsel for the claimant-respondents submits, the objection raised in the paragraph 23 of the written statement filed by the appellant-insurer was only with respect to Section 20(1) of the Workmen's Compensation Act, 1923 involving issuance of notification by the State Government appointing a person Commissioner under an Act for any area as may be specified. Elaborating his submission, learned counsel for the claimant-respondents submits, there is no dispute in the present case as to the existence of notification.

Then, learned counsel for the appellant-insurer submits, the accident having occurred between Loni and Delhi and the deceased (who was an injured at that time), having been admitted to a hospital at Shahdara, the claim petition should have been filed, in the first place before the Commissioner having jurisdiction over the place where the accident occurred and not at Ghaziabad.

He would also submit, in the instant case, the claim appears to have filed with reference to the residence of the claimants and the Commissioner has adjudicated the claim without issuing any prior notice to the other Commissioner having jurisdiction over the place where the accident occurred.

First, it is clear, in the written statement, the appellant had raised objection with reference to section 20(1) of the Workmen's Compensation Act, 1923 and not section 21(1) of that Act. There is no pleading made by the present appellant in the present case that may support the objection raised in the present appeal.

Second, the objection raised under section 20(1) of the Act raised in the written statement cannot be read as an objection raised for the purpose of Ssction 21(1) of the Act. The scope, object and purpose of the two sections and consequences are entirely different. For the appellant-insurer to argue that the claim petition had been filed before the Commissioner who did not have jurisdiction over or that the same has been decided by the Commissioner having jurisdiction over the residence of the claimants, without issuing mandatory prior notice to the Commissioner having jurisdiction over the place of occurrence, neither it has been pleaded nor any objection been raised on that count.

Therefore, the second question as raised in the memo of appeal also does not arise in the present appeal.

On the third question while it first appears submission made by learned counsel for the appellant that by virtue of Rule 28 of the Workmen's Compensation Rules, 1924, it is mandatory on part of the Commissioner to first frame the issue on which the parties are at variance, is correct. Only once the issues are framed by the Commissioner that the parties can lead their evidence in support of their case. He submits, in the instant case, the Commissioner has completely failed to frame any issue and therefore, the insurer was prevented from leading any evidence specifically in respect of the objection as to lack of existence of master-servant relationship and also in respect of territorial jurisdiction of the Commissioner, Ghaziabad.

As noted above, in respect of the existence of master-servant relationship, the owner/employer, in his written statement had specifically admitted existence of such relationship. Therefore, there neither existed any occasion or requirement to frame any issue in that regard.

Similarly, in respect of objection raised during the course of argument in the present appeal based on reading of Section 21 of the Act, it is seen, no pleading had been made by the insurer, either that the Commissioner, Ghaziabad did not have territorial jurisdiction because the accident did not occur within his territorial area or that the Commissioner, Ghaziabad could not proceed with the claim petition because he had not issued any prior notice to other Commissioner. Therefore, neither there the stage nor the occasion arose to frame an issue in respect of the territorial jurisdiction of the Commissioner, Ghaziabad.

For the insurer appellant to raise such an objection, it ought to have specifically pleaded facts necessary for such issue to arise. The insurer ought to have then pleaded the facts stating what the territorial limits of jurisdiction of the Commissioner at Ghaziabad were and where the accident site was. No pleading in that regard was made.

In this regard, learned counsel for the claimant-respondents has made a statement at bar that the claimants had not preferred any claim petition either before any other Commissioner under the Workmen's Compensation Act, 1923 or before any Tribunal under the Motor Vehicles Act, 1988. In this regard, he has further elaborated, upon any claim being filed either under the Motor Vehicles Act or under the Workmen's Compensation Act, upon notice to the insurer, intimation is made to the divisional office or the regional office of the insurance company under which the insurance of the offending vehicle had been issued. In that event the fact of two claim petitions arising from one accident would be discovered.

He therefore, submits, the objection raised by learned counsel for the appellant as to lack of issues being framed is wholly technical in the given facts of the present case. He relies on a judgment of Division Bench of this Court in the case of M/s. I.C.I.C.I. Lombard General Insurance Co. Ltd. Vs. Sitaram and Others reported in 2013 (2) T.A.C. 754 (All.), in this regard it had noted as below:-

"4. After hearing the counsel for the appellant and on perusal of the record we find that Rule 28 requires the Commissioner to frame issues upon which the disputed questions require a decision, whereas Rule 32 states that the Commissioner shall record his finding on each of the issues framed and the reasons for such finding. According to counsel for the appellant when Act and Rules provide for a thing to be done in a particular manner but this aspect of the matter had been overlooked by him and the Commissioner has decided the petition without framing any issues.

5. On query made by the Court the counsel for the appellant has fairly submitted that he has not filed copy of the written statement whereby the appellant had contested the claim before the Workmen's Compensation Commissioner, therefore, it cannot be ascertained that there was any dispute of any point between the parties. Moreover, it is apparent from the judgment placed before us by counsel for the appellant that there was only one point of contest by the insurance company that accident had not taken place at all with the vehicle in question and that Om Prakash had not died during the course of the employment in the alleged accident on 30.10.2011. This bald contention denying the claim is rebutted by the claimant by saying that accident had taken place by the aforesaid mini bus on 30.10.2011 in which Om Prakash died during the course of employment. There is an interesting over tone to this context to the effect that owner of the bus had admitted the factum that his bus was involved in the said accident in which Om Prakash died on 03.11.2011 due to injuries sustained by him on 30.10.2011. The insurance company has insured the vehicle in question in the context of accident. The insurance company steps into shoes of the owner who had admitted the accident, therefore, there was no dispute before the Commissioner in so far as the accident by the said bus in the manner stated by the claimant was concerned. As regards the other question regarding amount of salary etc is concerned the insurance company did not file any documentary evidence or led any oral evidence to contest the claim petition; that owner of the bus accepted the claim of the dependents of the deceased and the insurance company in a mere formalities denied the same. In the peculiar facts and circumstances the claim have not been admitted by the insurance company cannot defeat claim stating it to be a question in issue. The next contention of learned counsel for the appellant regarding Rule 28 and 32 is concerned that this question was not raised before the Employee's Compensation Commissioner. The appellant company also did not bring this fact to the notice of the Commissioner during the course of argument before him, therefore, it cannot be permitted for the first time to raise this question in appeal which was not raised by the appellant before the Commissioner and in any case since there was any material question addressed by the appellant regarding maintainability of the claim application on the ground that bus in question was not involved in the accident have not been admitted by the insurer the appellant."

(Emphasis supplied)

In my view while framing of issues is a mandatory requirement under the Act and the Rules framed there under, however, it is an issue may be framed on relevant facts on which parties are at variance. If in a given case either a party admits to one set of facts or the second party does not dispute the narration made by the other, it would not be obligatory on part of the Commissioner to engage in fishing and roving enquiry into each and every aspect and thereby result in prolonging the life of the litigation and the agony of the claimant by delaying the award of money which law has made such claimants entitled to.

In the present facts, there was no dispute as to existence of master-servant relationship inasmuch as noted by Commissioner, the owner did not dispute the existence of master-servant relationship. In that view of the matter, the Commissioner was not required to frame any issue in absence of any allegation of collusion between the owner/employer and the claimants being made by the insurer.

Then, the Commissioner further recorded a finding that the accident occurred between Loni and Delhi in Uttar Pradesh. The insurer also did not plead the exact location of the accident site. The Commissioner noted merely because the deceased who was then injured had been admitted at Shahdara Hospital by the Delhi police authorities cannot lead to the conclusion, the accident did not occur within the territorial jurisdiction of the Commissioner at Ghaziabad.

In view of discussions made above, I do not find any error in the findings of the Commissioner, principally because the insurer had not made a set up a counter case that the accident occurred at a place that fell outside the territorial jurisdiction of Commissioner at Ghaziabad.

Thus, the question raised by the appellant as to infirmity in the award on account of framing of issues is ruled to be hyper-technical in the facts of the present case.

In face of the facts of the case and the findings of fact recorded by the Commissioner consistent with the pleading and evidence on record, it would be an academic exercise in futility to remit the matter to the Commissioner to frame the issues and to decide the same so as to exactly align the award with the language of the Act. The Commissioner has dealt with and decided the issues on merits.

As to the award of interest, the same is statutory both in terms of liability to pay and also as to the rate of interest. The award of the Commissioner on that count therefore cannot be faulted as admittedly, the compensation amount was not paid within the statutory period and the same has been deposited only upon the award having made.

In view of the above, the instant appeal lacks merit and is according dismissed. No order as to costs. The amount deposited by the appellant-insurer which is lying before the Commissioner, Ghaziabad may now be released in favour of the claimant-respondents together interest that may have accrued, expeditiously, preferably within a period of one month from today.

Order Date :- 12.9.2017

A. Singh