Delhi High Court
Future Generali India Insurance ... vs Asha Devi & Ors. on 25 October, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.481/2016 and C.M. No.36264/2016 (stay)
% 25th October, 2017
FUTURE GENERALI INDIA INSURANCE CO. LTD. ..... Appellant
Through: Mr. Rajeev M. Roy, Advocate.
versus
ASHA DEVI & ORS. ..... Respondents
Through: Mr. Surender Chauhan,
Advocate for respondent No.3
with respondent no.3 in person.
Mr. Iftikhar Ahmed, Advocate
for respondent No.4.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal under Section 30 of the Employee's
Compensation Act, 1923 is filed by the appellant/insurance company
impugning the judgment of Employee's Compensation Commissioner
dated 28.7.2016 by which the Employee's Compensation
Commissioner reviewed its earlier judgment dated 3.6.2016. As per
the earlier judgment dated 3.6.2016 only the respondent no.1 in the
claim petition i.e M/s Ravi Tempo Transport Co., respondent no.3 in
this appeal, was held liable. In terms of the subsequent judgment
dated 28.7.2016 passed on an application for review filed under
Section 114 CPC by M/s Ravi Tempo Transport Co., the Employee's
Compensation Commissioner held the appellant/insurance company
liable jointly and severally with M/s Ravi Tempo Transport Co.
2. Learned counsel for the appellant/insurance company has
taken this Court through the provision of Rules 32 and 41 of the
Workmen's Compensation Rules, 1924 and it is argued that the
Employee's Compensation Commissioner has no power to review its
judgment on merits and powers of the Employee's Compensation
Commissioner is restricted only to corrections of clerical or
arithmetical mistakes arising from any accidental slip or omission.
Rules 32 and 41 of the Workmen's Compensation Rules read as
under:-
"32. Judgment.-(1) The Commissioner, in passing orders, shall record
concisely a judgment, his finding on each of the issues framed and his
reasons for such finding.
(2) The Commissioner, at the time of signing and dating his judgment, shall
pronounce, his decision, and thereafter no addition or alteration shall be
made to the judgment other than the correction of a clerical or arithmetical
mistake arising from any accidental slip or omission.
41. Certain provisions of Code of Civil Procedure, 1908, to apply.-Save
as otherwise expressly provided in the Act or these Rules the following
provisions of the First Schedule to the Code of Civil Procedure, 1908,
namely, those contained in Order V, Rules 9 to 13 and 15 to 30: Order IX;
Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII; and Order
XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, in
so far as they may be applicable thereto:
Provided that-
(a) for the purpose of facilitating the application of the said provisions
the Commissioner may construe them with such alterations not affecting the
substance as may be necessary or proper to adapt them to the matter before
him;
(b) the Commissioner may, for sufficient reasons, proceed otherwise
than in accordance with the said provisions if he is satisfied that the interests
of the parties will not thereby be prejudiced."
3. It is seen that Rule 41 of the Workmen's Compensation
Rules does not make applicable the provision of Order XLVII CPC
read with Section 114 CPC to the proceedings before the Employee's
Compensation Commissioner although various other provisions of
CPC have been made applicable. Power of review is a statutory
power which has to be specifically conferred and there is no inherent
power of review in face of the provisions of Rules 32 and 41 of the
Workmen's Compensation Rules. Rule 32 of the Workmen's
Compensation Rules in fact makes it clear that after signing of the
judgment, no alteration can be made in the judgment except for
correction of a clerical or arithmetical mistake arising from any
accidental slip or omission i.e no fresh judgment can be passed dealing
with the issues on merits. There is no clerical or arithmetical mistake
in this case because on merits the appellant/insurance company has
been held liable by the review judgment dated 28.7.2016, and which
judgment dated 28.7.2016 cannot fall under the heading of a clerical
or arithmetical mistake. Accordingly, it is held that Employee's
Compensation Commissioner has no power of review as such power is
not conferred by Rule 41 of the Workmen's Compensation Rules and
in fact Rule 32 of the Workmen's Compensation Rules restricts the
power after passing the judgment only to make corrections on account
of accidental slips or omissions and which thus will not include a
right/power to change the judgment already passed by passing a fresh
judgment on merits on a review petition.
4. Learned counsel for the respondent no.3 in this appeal
and which was respondent no.1 in the court below states that liberty be
granted to this respondent for now filing an appeal against the
judgment dated 3.6.2016 which had not made the appellant/insurance
company liable. It is argued that not only liberty be granted to file the
appeal, the respondent no.3 M/s Ravi Tempo Transport Co. be granted
the benefit of Section 14(1) of the Limitation Act, 1963 as this
respondent remained under a legitimate and bonafide mistake on
account of review petition being entertained and thereafter allowed in
terms of the impugned judgment dated 28.7.2016 passed by the
Employee's Compensation Commissioner.
5. Accordingly, while allowing this appeal and setting aside
the judgment of the Employee's Compensation Commissioner dated
28.7.2016, liberty is granted to the respondent no.3 herein to file an
appeal against the judgment dated 3.6.2016, of course in accordance
with law, and when such an appeal is filed, the provision of Section
14(1) of the Limitation Act be read liberally in favour of the
respondent no.3 herein. Parties are left to bear their own costs.
OCTOBER 25, 2017 VALMIKI J. MEHTA, J
Ne
