Allahabad High Court
Smt. Kela Devi And Others vs Deepak Malhotra And Another on 6 July, 2021
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 487 of 2005
Appellant :- Smt. Kela Devi And Others
Respondent :- Deepak Malhotra And Another
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Counsel for the appellant has been elevated to this Bench for which notice was issued which has not been returned back.
By way of this appeal the appellants has felt aggrieved by the order dated 21.12.2004 passed by Commissioner, Workmen's Compensation Act, 1923 whereby it had allowed the appeal.
The claimants are the legal heirs of the deceased. Learned Commissioner dismissed the case. As according to him the deceased died out of vehicular accident. The deceased has right to chose under Section 67 of Motor Vehicle Act, 1988 and, therefore this is question of law decided in favour of the claimants.
The order of Commissioner is illegal as the deceased had sustained injuries. He died during the pendency of litigation. The claimants had filed the claim petition being No.5 of 2003 before the Commissioner under the Workmen's Compensation Act. His income was also fixed. The law is now settled that the principle of maxim "Actio Personalis Moritur Cum Persona" will not apply to the beneficiary of legislation. Directing the parties under Workmen's Compensation Act or Motor Vehicle Act to move the Motor Vehicle Tribunal is bad in eye of law. The widow would be the dependant during the period of substitution.
Learned Judge has misdirected himself as there is no provision of substitution under the Act. The provision of the Act categorically shows that the citations will not apply. On the contrary the decision reported in AIR 1994, 1176 cited before the Tribunal would apply. The Insurance Company cannot now raise this issue. The law of torts is not applicable to such Acts which are not notified under the law. Thus, the judgment is bad in eye of law. This question of law also is decided in favour of the claimant. The claim could not have been dismissed as having been abated.
The appeal is allowed. The judgment on which the Commissioner has relied is not applicable to the facts of this case.
The questions of law is answered in favour of the claimants and against the Insurance Company.
In that view of the matter, the application for substitution is deemed to be allowed. The order dated 21.12.2004 is set aside. The appeal is allowed. The Application is restored to file being WCA No.5 of 2003.
Order Date :- 6.7.2021/Mukesh
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 487 of 2005
Appellant :- Smt. Kela Devi And Others
Respondent :- Deepak Malhotra And Another
Hon'ble Dr. Kaushal Jayendra Thaker,J.
(Ref: Civil Misc. Delay Condonation Application)
This is an application seeking condonation of delay in filing appeal.
Cause shown is sufficient.
The delay in filing the appeal is hereby condoned.
This application, accordingly, stands allowed.
Order Date :- 6.7.2021/Mukesh
