M/S Delhi Transport Corporation vs Smt. Santra Devi & Anr.
2011 Latest Caselaw 3431 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 19th July, 2011
+                              W.P.(C) 9107/2008

         M/S DELHI TRANSPORT CORPORATION ..... Petitioner
                      Through: Mr. Anand Nandan, Adv.

                                      Versus

         SMT. SANTRA DEVI & ANR.                 ..... Respondents
                      Through: Mr. Prashant Katara, Adv. for R-1

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                       No
         be allowed to see the judgment?

2.       To be referred to the reporter or not?               No

3.       Whether the judgment should be reported              No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The challenge in this petition is to the order dated 24 th July, 2008 of

the Commissioner under the Workmen's Compensation Act, 1923. The

order records, that there is no dispute about the employment death of late

Sh. Om Prakash (i.e. the husband of the respondent No.1) employed as a

Fitter with the petitioner DTC and computes the compensation under the

Act at `72,288/- and directs payments thereof together with interest @12%

per annum with effect from the date of filing of the claim i.e. 31 st August,

2006.

2. The challenge by the petitioner to the said order is only on the

ground that the responsibility for payment of the said compensation was of

the respondent No.2 M/s Life Insurance Corporation of India (LIC) and not

of the petitioner. On the said plea of the petitioner, notice of the petition

was issued and the operation of the order stayed.

3. The respondent No.1 being the wife / widow of the workman has

filed a counter affidavit denying any knowledge of insurance and pleading

that in view of the availability of alternative remedy of appeal under

Section 30 of the Act, this petition is not maintainable.

4. The petitioner has been unable to serve the respondent No.2 LIC in

the last nearly three years and today also time is sought to serve the

respondent No.2 LIC.

5. On the last date of hearing i.e. 8th April, 2011, the argument of the

counsel for the respondent No.1 of the petition being not maintainable

owing to the availability of alternative remedy of appeal was noted and the

matter is listed today for arguments on the aspect of maintainability.

6. The counsel for the respondent No.1 relies on the judgment of the

Division Bench of the Punjab and Haryana High Court in Piara Singh Vs.

Commissioner, Workmen Compensation 1987 LAB.I.C. 818 to contend

that owing to the availability of remedy of appeal, the writ would not be

maintainable.

7. I have enquired from the counsel for the petitioner as to how the

petitioner can contend that the liability is of the respondent No.2 LIC and

not of the petitioner. A perusal of Section 3 of the Act shows that it creates

the liability of the employer only and not of insurance company from

which the employer may have obtained insurance. The counsel for the

petitioner contends that there are resolutions of the petitioner to the said

effect and seeks time to produce the same. However, the resolutions even

if any of the petitioner (which ought to have been relied upon in the writ

petition and of which there is no mention in the writ petition) cannot be

contrary to the Act. Section 17 of the Act makes any contract or

agreement, whereby a workman relinquishes any right of compensation

from the employer, as null and void.

8. The counsel for the petitioner has then referred to Section 12 of the

Act to contend that the petitioner could have contracted out the liability to

the insurance company. There is no merit in the said contention also of the

counsel for the petitioner. Section 12 envisages the position of a contractor

and a principal employer and can by no means be said to be relatable to

contract of insurance. The Supreme Court in P.J. Narayan Vs. UOI

(2006) 5 SCC 200 has held that there is no statutory liability on the

insurance company; the statutory liability under the Act is on the employer

and in the absence of any statute to that effect, insurance companies cannot

be forced by Courts to take on the liability. Thus the sole ground on which

the order has been challenged has no merit.

9. The counsel for the petitioner has also argued that once notice has

been issued and one of the respondents remains unserved, arguments ought

not to be heard. Such dilatory argument on the basis of litigant's own

default in effecting service cannot come in the way of hearing of the

petition which is still at the stage of show cause and when no merit is

found in the challenge made to the impugned order.

10. The counsel for the petitioner seeks liberty to avail of the remedy of

appeal. The only ground on which the order was challenged was as

aforesaid and which has not found favour and no liberty can be granted to

now take up the same ground in appeal. The counsel for the petitioner

however states that if the petitioner desires to challenge the order on other

grounds, liberty to avail of the alternative remedy on those ground(s) be

given. If at all any other ground of challenge is made out, the petitioner

shall have liberty in accordance with law.

11. The petition is therefore dismissed. Cost of litigation has already

been paid.

RAJIV SAHAI ENDLAW (JUDGE) JULY 19, 2011 'gsr'