Bombay High Court

Lata Dnyaneshwar Phad And Ors vs Erim A Luthara And Anr on 16 September, 2016

Bench: P.R. Bora

                                      1                               1777-16fa


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                      
                      BENCH AT AURANGABAD




                                              
                        FIRST APPEAL NO.1777 OF 2016




                                             
      1.       Lata W/o. Dnyaneshwar Phad,
               Age:25 years, Occu.: Household,




                                   
      2.       Ashwini D/o. Dnyaneshwar Phad,
               Age:9 years, Occu.:Education,
                             
      3.       Abhishek s/o. Dnyaneshwar Phad,
                            
               Age:6 years, Occu.: Education,

               Both are Minor, U/g. of their mother
               i.e. Applicant No.1
      


      4.       Tukaram S/o. Kadtuji Phad,
   



               Age:55 years, Occu.: Agril. Labour,

      5.       Lilabai w/o. Tukaram Phad,





               Age:50 years, Occu.: Agril. Labour

               All are R/o. Kanergaon-Naka,
               Tq. Sengaon, Dist. Hingoli.





                                               ... APPLICANTS


                       VERSUS

      1.       Erim A. Luthara,
               Age:45 years, Occu.: Owner-Business,
               and owner of the vehicle
               R/o. Ozar, Tq. Niphad,
               Dist. Nashik.




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      2.       The Oriental Insurance Co. Ltd.
               Divisional Office at Nashik,




                                                                            
               For the service of summons
               Dayawan Complex, Station Road,




                                                    
               Parbhani.

                                                 ...RESPONDENTS




                                                   
                              ...
      Mrs. S.B.Warma, Advocate, h/f Mr. B.R.Warma, Advocate,
      for the appellants.
      Mr.M.K.Goyanka, Advocate for respondent no.2.




                                          
                              ...
                              ig   CORAM: P.R.BORA, J.

DATE : SEPTEMBER 16th, 2016

***

ORAL JUDGMENT:

1. The present appeal is filed against the judgment

and order passed in Fatal Accident No.6/2003, on 23rd of

of September, 2005, by the Civil Judge, Senior Division,

Hingoli, and Ex Officio Commissioner under Workmens

Compensation Act. The aforesaid petition was filed by

the present appellants against the employer and the

Insurance Company, with which the tempo was insured on

the date of the accident, claiming compensation under the

provisions of Workmens Compensation Act being the legal

heirs of deceased Dnyaneshwar Phad who died in a

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vehicular accident happened on 15th May, 2003. It was

the case of the appellant that deceased Dnyaneshwar was

working as a Driver with respondent no.1 herein. It was

their further contention that during the course of his

employment, he met with an accident and suffered death.

The appellants, therefore, presented an application in the

Court at Hingoli claiming compensation. The petition was

resisted by the Insurance Company alone. The employer,

though duly served, did not enter his appearance and the

petition was proceeded ex parte against him. The learned

Workmens compensation Commissioner has dismissed the

petition holding that it was not having any jurisdiction to

entertain the said petition, and also on the point of

limitation, as well as further observed that the petitioners

have failed in establishing their claim.

2. Aggrieved thereby, the appellants have filed the

present appeal. Learned Counsel appearing for the

appellants submitted that at the relevant time the

appellants were residing at Kanergaon-Naka, taluka

Sengaon, district Hingoli and, as such, the petition was

filed by them in the Court at Hingoli. Learned trial Court

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has observed in the impugned judgment that the place of

residence was subsequently introduced by the appellant

while the petition was pending, and at the time of filing of

the petition, the places were kept blank. The trial Court

has further observed that the accident had happened

within the jurisdiction of the Court at Bhiwandi, and as

such, either the petition ought to have been filed in the

Court at Bhiwandi, or at the place wherein the respondents

are residing. The trial Court has further observed that

the appellants have not produced on record any evidence

establishing that they are residing at Kanergaon-Naka.

3. Learned Counsel appearing for the appellant,

placing her reliance on the judgment of the Honourable

Apex Court, in the case of Morgina Begum v. Managing

Director ( AIR 2008 SC 199 ) submitted that, in fact, it is

not the requirement of law that the appellants are strictly

required to prove the place of their residence. Learned

Counsel also invited my attention to Section 21 of the

Workmens Compensation Act and also to Rule 22 of the

workmens Compensation Rules. In view of the aforesaid

provisions, according to the learned Counsel, the Tribunal

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ought not have recorded a negative finding on the point of

jurisdiction. Learned Counsel further submitted that

merely because the applicant no.1 was absent on the date

fixed for hearing, and so she was not cross examined, the

entire evidence could not have been rejected by the trial

Court. Learned Counsel, taking me through the Roznama

of the case, further submitted that on the date on which

the appellant no.1 is stated to have been absent, no one

was present even from the side of the respondents and, in

the circumstances, the trial Court must have adjourned the

matter for cross examination to the next date. However,

instead of doing that, the trial Court has rejected the

entire evidence only on the sole ground that the appellant

no.1 did not present herself for cross examination.

Learned Counsel submitted that the entire approach of the

trial Court was too technical and to some extent, negative.

The trial Court did not consider that the Workmens

Compensation Act is a beneficial legislation and no strict

Rules of Code of Civil Procedure and / or Evidence Act can

be made applicable to such proceedings. Learned Counsel

further submitted that the observations made by the trial

Court as about verification of the pleadings are also not in

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conformity with the legal provisions. Learned Counsel

submitted that, as provided under Section 24 of the

Workmens Compensation Act, read with Order 6 Rules 14

and 15 of the Code of Civil Procedure, the pleadings can

be signed by the Advocate of the party and it is not

mandatory that they must be signed by the applicants or

the plaintiffs. Learned Counsel submitted that, moreover,

all these defects were curable defects and the appellants

ought to have been given an opportunity to cure the

defects. For all these reasons, learned Counsel prayed

for setting aside the impugned judgment and award and

prayed for allowing the application so filed by the

appellants before the trial Court.

4. Shri Goyanka, learned Counsel appearing for

respondent no.2, opposed the submissions advanced on

behalf of the appellants. Learned Counsel supported the

impugned judgment. In the alternative, learned Counsel

submitted that if at all this Court finds it appropriate to

remit back the matter to the trial Court for its fresh

hearing, the delay which has been caused in preferring the

First Appeal by the present appellants shall be considered

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and the burden of interest of the said period shall not be

saddled on the Insurance Company.

5. After having considred the submissions

advanced by the learned Counsel for the respective parties

and on perusal of the impugned judgment, apparently, it

appears to me that the learned trial Court has manifestly

erred in recording a negative finding on the point of

jurisdiction as well as in rejecting the claim petition for the

reasons assigned in the said judgment.

6. A query was made by this Court to the Counsel

for respondent no.2 Insurance Company as to whether the

copy which was received to the Insurance Company of the

petition filed by the present appellants in the Court at

Hingoli, the place of their residence was mentioned or not.

Learned Counsel was fair enough to state that in the copy

which was received, the place of residence was mentioned

though it was not typed but was in ink. It indicates that

before notices were issued and summonses were served

on the respondent, the necessary particulars were

provided by the appellants as about their residence.

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Section 21 of the Workmens Compensation Act provides

for the venue of the proceedings and also as about the

transfer of the proceedings. Clauses (1) (a) and (b) of

the said Section provide that such proceedings can be filed

and can be adjudicated by the Court having jurisdiction in

the area in which the accident took place which resulted in

the injury, or in case of death, at the place where the

dependent, claiming the compensation, ordinarily resides.

It is the specific case of the present appellants that in an

effort of securing job, the appellants have shifted to

Kanergaon- Naka. There was no reason to disbelieve the

said statement. As has been observed by the Honourable

Supreme Court in the judgment cited supra, unless a

contrary evidence is brought on record, in normal course,

such averments need not be disbelieved. The finding

recorded by the trial Court on point of jurisdiction is

apparently untenable and deserves to be set aside. In

view of the fact that the appellants, at the relevant time,

were residing within the jurisdiction of Court at Hingoli,

the said Court has jurisdiction to try and entertain the

petition so filed by the appellants.

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7. In so far as the other objections which are

raised as regards the pleadings not signed by the

appellants are concerned, the provisions of code of Civil

Procedure and Workmens Compensation Act are clear and

no further discussion is required in that regard.

Admittedly, the pleadings are signed by the Advocate.

Thus, on that ground also the Tribunal could not have

recorded a negative finding.

8. It is further revealed from the discussion made

in the impugned judgment that only on one date i.e.

19.9.2005, the appellant no.1 was absent and did not

present herself for cross examination. The trial Court has

observed that appellants have failed in proving their case

since averments in the examination in chief of Appellant

No.1 are not tested by cross examination. The trial Court

should not have adopted such technical approach.

Moreover, as has been pointed out by the learned Counsel

for the appellant, Roznama of 19-9-2005 indicates that,

not only the appellant was absent on that day but, no one

was present even on behalf of the Respondents. The

record of the case nowhere reflects that the trial Court has

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mandated presence of appellant no.1 for cross

examination and inspite of that she remained absent.

Absence, merely on one day, should not have resulted in

dismissal of the petition.

9. In so far as the contention raised by the learned

Counsel appearing for the Insurance Company as about

the burden of interest on the Insurance Company, it will

be open for the respondent Insurance Company to raise

the said issue before the trial Court and the trial Court

may decide the same on its own merits and pass the

necessary orders.

10. In view of the above, the impugned judgment

cannot be sustained and deserves to be quashed and set

aside. In view of the fact that the trial Court has not

considered the matter on merits, the only course open is

to remit the matter back to the trial Court for its fresh

decision. For the reasons stated above, the following

order is passed:

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                                       ORDER




                                                                               
                                                       
      1.               The Appeal is allowed.          The impugned order is

      quashed and set aside.              It is held that the Court at Hingoli

is competent to try and entertain the petition filed by the

present appellants. The Civil Judge, Senior Division, and

Ex Officio Commissioner under Workmens Compensation

Act, Hingoli, is directed to hear and decide the matter on

its own merits by giving an opportunity to appellant No.1

to present herself for cross examination by the

respondents.

2. Needless to state that it will be open for the

respondents to adduce the evidence, if any, in rebuttal of

the contentions raised in the petition.

3. In view of the fact that the alleged accident had

occurred in the year 2003, the trial Court shall expedite