Tr.P.(C)./48/2019
2021 Latest Caselaw 2046 Gua

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GAHC010142012019




                THE GAUHATI HIGH COURT
       (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

                                       Tr.P.(C) 48/2019

                          Smti Sampurna Borah Dutta
                          W/o Sri Pinak Dutta
                          R/o Ward no. 11, K.B. Road,
                          P.O. & P.S. - North Lakhimpur, Assam
                                                                          .................Petitioner
                             -Versus-

                        1)  Smti Sangita Rao Das
                          W/o Late Bubu Das
                        2) Sri Dhanvi Das
                           D/o Late Bubu Das
                        3) Smti Bimola Das
                           W/o Late Bidyadhan Das

                     Respondent nos. 1-3 are all residents of

Village-Sanatan Gaon, P.S. North Lakhimpur, District-Lakhimpur, Assam.

4) The Divisional Manager National Insurance Company, Ltd., Bongaigaon Division, District-Bongaigaon ...................Respondents

Advocates :

For the petitioner-opposite party no. 1            : Mr. P.J. Saikia, Advocate

For the respondent-claimant nos. 1-3               : Mr. S.C. Biswas, Advocate

For the respondent-opposite party no. 2            : Mr. A.J. Saikia, Advocate
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Date of Judgment & Order                    : 03.09.2021


                                        BEFORE
                        HON'BLE MR. JUSTICE MANISH CHOUDHURY

                                    JUDGMENT & ORDER

The petitioner has approached this Court by this application under Section 24, Code of Civil Procedure, 1908 (CPC) seeking transfer of E.C. Case no. 11/2019, presently pending before the Commissioner, Employee's Compensation, Abhayapuri at Bongaigaon, to the Commissioner, Employee's Compensation, North Lakhimpur at Lakhimpur.

2. The case, E.C. Case no. 11/2019 came to be registered on filing of an application in terms of the provisions of Section 22 read with Section 3 of the Employee's Compensation Act, 1923 ('the E.C. Act') by the three claimants viz. 1) Sangita Rao Das, 2) Dhanvi Das, and

3) Bimala Das. The claimant no. 2 is a minor who is represented by claimant no. 1. The claimant no. 1 is the wife and the claimant no. 3 is the mother of one late Bubu Das respectively. The claim application has been filed before the Commissioner, Employee's Compensation, Abhayapuri at Bongaigaon. By preferring the application, the claimants have sought compensation under the provisions of the E.C. Act for the death caused to late Bubu Das which, according to them, arose out of and in the course of his employment as a driver of a TATA Vista Terra vehicle bearing Registration no. AS-07/E-6304 ['the subject-vehicle', for short].

3. In the claim application, it has been asserted that late Bubu Das was employed as a driver of the subject-vehicle which is owned by the present petitioner, who has been impleaded as the opposite party no. 1 in E.C. Case no. 11/2019. It is averred that on 03.02.2019, late Bubu Das, driving the subject-vehicle, was proceeding towards Pachoni Camp Bridge on NHPC road. While so proceeding, an accident had occurred when he reached Pachoni Camp Bridge on NHPC road within the jurisdiction of Gerukamukh Police Station, District-Dhemaji. In connection with the said accident, an ejahar came to be lodged before the Officer In-Charge, Gerukamukh Police Station stating, inter alia, that the driver of the subject-vehicle i.e. late Bubu Das was killed by some unknown persons. On receipt of the said Page No.# 3/7

ejahar, the Officer In-Charge, Gerukamukh Police Station registered a case being Gerukamukh Police Station Case no. 04/2019 under Sections 302/34, Indian Penal Code (IPC). The claimants who are impleaded as party respondent nos. 1-3 in the present application, have claimed compensation from the owner and the insurer of the subject-vehicle on the ground that the death of late Bubu Das arose out of and in the course of his employment as a driver of the subject-vehicle and accordingly, they should be paid compensation in terms of the provisions of E.C. Act.

4. On receipt of the said claim application by the learned Commissioner, the same has been registered and numbered as E.C. Case no. 11/2019. After such registration of the claim application as E.C. Case no. 11/2019, notices were issued by the learned Commissioner on 08.03.2019 to the opposite parties asking for their appearance before the learned Commissioner on 27.06.2019 and to file written statement/objection, if any. The insurer of the subject-vehicle has been impleaded as the opposite party no. 2. Upon receipt of the said notice, the petitioner who is the owner of the subject-vehicle and who has been impleaded as the opposite party no. 1 in E.C. Case no. 11/2019, has approached this Court by this application seeking transfer.

5. Heard Mr. P.J. Saikia, learned counsel for the petitioner-opposite party no. 1; Mr. S.C. Biswas learned counsel for the respondent-claimants nos. 1-3; and Mr. A.J. Saikia, learned counsel for the respondent no. 4-opposite no. 2.

6. Mr. P.J. Saikia, learned counsel for the petitioner has made his submissions on three aspects. Firstly, the employee, namely, late Bubu Das had met his death in an accident that occurred within the jurisdiction of Gerukamukh Police Station, District - Dhemaji and as such, the learned Commissioner, Employee's Compensation, Dhemaji has the jurisdiction to decide about the claim made by the claimants-respondent nos. 1-3; Secondly, the procedure laid down in the first proviso to sub-section (1) of Section 21 of the E.C. Act has not been followed in the case in hand and as such, the learned Commissioner, Employee's Compensation, Abhayapuri at Bongaigaon could not have assumed the jurisdiction to decide the claim application; and thirdly, the claimants-respondent nos. 1-3 do not ordinarily reside Page No.# 4/7

at the place where the claim application has been preferred. To buttress his submission, he has placed reliance on a certificate issued by the Gaonbura of the concerned locality in Dhemaji district.

7. Mr. Biswas, learned counsel appearing for the respondent claimant nos. 1-3 has submitted that at the time of the accident resulting into the death of late Bubu Das, the claimants were residing within the jurisdiction of Lakhimpur Police Station, District-Lakhimpur. After the death of late Bubu Das who was the sole breadwinner, the claimants who were the dependants, have shifted to the district of Bongaigaon and since then, they have been residing in the district of Bongaigaon. As such, the learned Commissioner, Employee's Compensation, Abhayapuri at Bongaigaon has the jurisdiction to decide the claim application in view of sub-clause (b) of Section 21(1) of the E.C. Act.

8. Mr. A.J. Saikia, learned counsel for the respondent no. 4-opposite party no. 2 who is the insurer of the subject-vehicle, has submitted that the respondent no. 4 has to contest the claim application, be it before the learned Commissioner, Employee's Compensation, Lakhimpur at North Lakhimpur or the learned Commissioner, Abhayapuri at Bongaigaon.

9. I have considered the submissions of the learned counsel for the parties and also perused the materials on record.

10. Before proceeding to appreciate the contentions raised on behalf of the petitioner, it would be apposite to refer to the relevant provisions of the E.C. Act. Section 21 of the E.C. Act has provided for venue of proceedings and transfer. The relevant parts of sub-section (1) of Section 21 of the E.C. Act reads as under :-

"Section 21 :Venue of proceedings and transfer.- (1) Where any matter under this Act is to be done by or before a Commissioner, the same shall, subject to the provisions of this Act and to any rules made hereunder, be done by or before the Commissioner for the area in which-

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(a) the accident took place which resulted in the injury; or

(b) the employee or in case of his death, the dependant claiming the compensation ordinarily resides; or

(c) the employer has his registered office:

Provided that no matter shall be processed before or by a Commissioner, other than the Commissioner having jurisdiction over the area in which the accident took place, without his giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned:

11. In so far as the contentions regarding jurisdiction of the Commissioner, Employee's Compensation is concerned, Clause (a) of Section 21(1) of the E.C. Act has provided that the Commissioner for the area in which the accident took place which resulted in the injury of the employee which also includes death, has the jurisdiction to decide the claim application. Clause (b) of Section 21(1) of the E.C. Act has provided that the Commissioner of the area also in which the employee or in case of his death, the dependant claiming the compensation ordinarily resides also has the jurisdiction to decide the claim application. Thus, in case of the death of an employee in an accident which arose out of and in the course of his employment, if the dependant claiming compensation files an application before the Commissioner of the area in which he/she ordinarily resides, will have the jurisdiction provided the procedure laid down in the first proviso to sub-section (1) of Section 21 of the E.C. Act is followed.

12. The petitioner has relied on a certificate issued by the Gaonbura of Lat No. 19, Ward No. 5, Lakhimpur Mouza which was issued on 15.06.2019. In the said certificate, the Gaonbura mentioned that the respondent no. 1 was the wife of late Bubu Das and she is a permanent resident within the jurisdiction of Lakhimpur Police Station. He had further certified that the respondent no. 1 had no other place of residence. The respondent nos. 1-3 have filed an objection by way of an affidavit on 10.12.2020 wherein they have averred that after the death of late Bubu Das, they had left their village in the district of Lakhimpur and since then, they are residing in the district of Bongaigaon as they have no near ones at Lakhimpur to take care of them. They have further denied the veracity of the certificate Page No.# 6/7

issued by the Gaonbura dated 10.12.2020 by asserting that the said certificate has been fraudulently obtained by the petitioner and was issued by the Gaonbura without verifying the present residential status of the respondents. It has been asserted that the respondents have continuously been residing at Bongaigaon since after the death of the deceased on 03.02.2019. The said assertion of the respondent has not been traversed by the petitioner in any manner.

13. Mr. Saikia has submitted that the respondent no. 3 has a fair price shop in the district of Lakhimpur which goes to show that she is a permanent resident in the district of Lakhimpur. But, nothing has been brought on record to substantiate such submission by the petitioner. In the absence of any convincing material before the Court, it is not possible to record a finding that the respondents are still residing in the district of Lakhimpur. In this connection, a reference to the observations made by the Hon'ble Supreme Court of India in the case of Morgina Begum vs. Md. Manuman Plantation Ltd. reported in (2007) 11 SCC 616 can be made. The Hon'ble Supreme Court in Morgina Begum (supra) has observed that the expression "ordinarily resides" means where the person claiming compensation normally resides at the time of filing the claim application. Other than the assertion that the respondents are permanent residents of Lakhimpur district no material has been brought on record by the petitioner to rebut the assertion made by the respondents that after the death of late Bubu Das on 02.03.2019, they are not ordinarily residing in the district of Bongaigaon and as such, the said contention advanced on behalf of the petitioner does not deserve acceptance.

14. It has been urged that while entertaining the claim application in E.C. Case no. 11/2019, the learned Commissioner did not follow the procedure laid down in the first proviso to sub-section (1) of Section 21 of the E.C. Act. To urge the same, no foundational fact has been brought on record by the petitioner. A ground taken must be based on a factual foundation and necessary facts are required to be pleaded. In the absence of such factual foundation having been pleaded, this Court is of the opinion that no case has been made out by the petitioner to urge that point.

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15. It has been urged that as the employee was killed by some unknown person in an incident on 02.03.2019 and in that connection, a police case has been registered under Sections 302/34, IPC. As the incident is of murder, no compensation is payable to the claimants of the claim application. On the other hand, the claim application has been preferred on the ground that the death of the employee who was the driver of the subject- vehicle, met his death and the death arose out of and in the course of his employment. The issues as to whether the employee met his death in accident or was murdered and whether such death or murder arose out of and in the course of his employment or not are to be decided in the proceeding before the learned Commissioner on the basis of the evidence led by the parties. Such a question cannot be decided in an application seeking transfer of the proceeding from one venue to another and as such, it is not necessary for this Court to make any observation in that regard. In such view of the matter, the said contention advanced on behalf of the petitioner cannot be accepted in an application seeking transfer.

16. In view of the above discussion, this Court does not find any merits in the instant application seeking transfer and consequently, the same is dismissed. No cost.

JUDGE

Comparing Assistant