Jammu & Kashmir High Court
High Court Of Jammu & Kashmir And Ladakh vs Amir Hussain And Another on 9 May, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
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AT JAMMU
FAO(WC) No.08/2021
Pronounced on 09.05.2025
M/S Copenhagen Hospitality and .... Petitioner/Appellant(s)
Retails
Through:- Mr. Aditya Gupta, Advocate &
Mr. Munish Sharma, Advocate.
V/s
Amir Hussain and another .....Respondent(s)
Through:- Mr. Jagpaul Singh, Advocate, for R-1.
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
1. This appeal is directed against an award dated 30.01.2021 passed by
the Commissioner Employees‟ Compensation Act (Assistant Labour
Commissioner), Doda (hereinafter referred to as „Commissioner‟) in
claim petition titled "Amir Hussain vs. Managing Director La
Pio's Pizza in file No.32-I, whereby an award to the tune of
Rs. 9,50,184/- alongwith interest @ 12% from the date of institution
of claim petition till date of realization has been passed in favour of
the applicant (respondent-1 herein).
2. Brief facts of the case is that the applicant-respondent no.1 filed a
claim application before the Commissioner under the Employees
Compensation Act, on 30-06-2017, whereby he claimed
compensation to the tune of Rs.28,00,000/-. It was submitted by
him that he was engaged as delivery of pizza and, while on job
for delivery of pizza with the non-applicant- La Pio‟s Pizza at Sector
67 Mohalli, Chandigarh, he met with road traffic accident and
seriously injured. The accident occurred with motorcycle.
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Thereafter he was taken to hospital and referred to Chandigarh
Government Hospital and remained admitted for two days and was
operated. There was fracture to his left shoulder, arm and leg and
Rupees three lac had been incurred for his treatment. He became
disabled even after the treatment and unable to lift any weight. It
was also submitted that the non-applicant had the knowledge of
accident but refused to be compensated, which compelled him to file
the claim application. At the time of accident his age was 23 years
and was earning wages of Rs.12000 per month.
3. The Commissioner, upon receipt of the claim application, issued
notice to the non-applicant for appearance but he failed to appear.
Thereafter he was proceeded ex-parte, after recording the statements
of witnesses, namely Farooq Ahmed, Abid Hussain, Dr. N.D.Dar,
beside own statement of the applicant. After recording the
statements, applicant‟s evidence was closed.
4. In view of the claim application and after recording the statements of
the witnesses, the Commissioner, passed the award dated 30.01.2021
by holding as under;
"(i) The applicant was in the employment of non applicant and
engaged as delivery boy and is an employee within the
meaning of the Employees Compensation Act, 1923.
(ii) The applicant met with an accident resulting into serious
bodily injuries arising out of and in the course of his
employment with opposite party.
(iii) The applicant has got treatment and remained admitted
from 20-02-2017 and operated twice.
(iv)No compensation has been paid by the employer.
(v) The applicant is entitled to the compensation due under
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provisions of Employee Compensation Act.
(vi)The non applicant is held liable for the payment of
compensation to the applicant for the disability vis-à-vis
loss of earning capacity".
5. Heard learned counsel for the parties and perused the record.
6. The appellant is aggrieved of the impugned order on the ground that
the same is bad in the eyes of law as it has been passed by
respondent no.2 without jurisdiction in terms of section 21 of
Employees Compensation Act, 1923. In this regard, it is urged that
as the accident occurred at Chandigarh and the respondent no.1also
treated at Chandigarh, as such, the Commissioner could not have
entertained the claim application of the claimant and passed the
award impugned. It is also submitted that requirement of Section
10 of the Act was also not complied with.
7. Mr. Jagpaul Singh, learned counsel appearing for respondent no.1
has raised a preliminary objection with regard to the maintainability
of the appeal in view of the fact that the memorandum of the appeal
is not accompanied with the certificate of the Commissioner to the
extent that the appellant has deposited the amount. Learned counsel
for the respondent No.1 also submits that no substantial question of
law arises in this appeal, as such, the same is not maintainable. It is
further submitted that the only ground taken by the appellant in this
appeal is that the Commissioner had no jurisdiction to award
the compensation in view of Section 21 of the Employees‟
Compensation Act. This proviso is only procedural and its non-
compliance will not prejudice the respondent No. 1‟s claim.
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8. This appeal is not accompanied by the certificate of deposit issued by
the Commissioner to the extent that the appellant has deposited the
award amount.
9. The provision of appeal is provided under Section 30 of the
Employees‟ Compensation Act. For facility of reference, same is
reproduced as under;
"30.Appeals-(1) An appeal shall lie to the High Court from the
following order of a Commissioner, namely-
(a) ---------------------------------------------------------------------
(b) ---------------------------------------------------------------------
(c) ---------------------------------------------------------------------
(d) ---------------------------------------------------------------------
(e) an order refusing to register a memorandum of agreement or
registering the same or providing for the registration of the same
subject to conditions:
Provided that no appeal shall lie against any order unless a
substantial question of law is involved in the appeal, and in the case
of an order other than an order such as is referred to in clause (b),
unless the amount in dispute in the appeal is not less than three
hundred rupees;
Provided further that no appeal shall lie in any case in which the
parties have agreed to abide by the decision of the Commissioner, or
in which the order of the Commissioner gives effect to an agreement
come to by the parties:
[Provided further that no appeal by an employer under clause (a)
shall lie unless the memorandum of appeal is accompanied by a
certificate by the Commissioner to the effect that the appellant has
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deposited with him the amount payable under the order appealed
against---------------."
10. From the perusal of section 30 of the Act, it is apparent that no
appeal by an employer under clause (e) shall lie unless the
memorandum of appeal is accompanied by a certificate by the
Commissioner to the effect that the appellant has deposited with the
Commissioner an amount payable under the order appealed against.
11. A perusal of the record reveals that the appeal was presented on
29.03.2021 and the same was not accompanied by a certificate of
deposit.
12. In this regard, reliance has been placed upon cases reported as
Oriental Insurance Co. Ltd. vs. Jatinder Sharma & ors., 2017 (1)
JKJ [HC]91 and Oriental Insurance Co. Ltd. vs. Ishwar Lal &
ors., 2008 (1) JKJ (HC) 339.
13. In view of the fact that since the awarded amount has not been
deposited with the Commissioner by virtue of which the appeal is
also not accompanied by the certificate of deposit, therefore, the
present appeal is not maintainable.
14. The question of jurisdiction has already been answered by the Punjab
and Haryana High Court in case reported as Bajaj Allianz General
Insurance Company Ltd. vs. Suman Devi, AIRONLINE 2021 P
AND H 688. In the said case, it has been held that it is only
procedural to ensure that the Commissioner of the concerned
jurisdiction has also notice of the cognizance taken by another
Commissioner and if the same is not followed, the claimant cannot
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be prejudiced for the irregularity. Relevant portion of the judgment
reads as under:-
"7. Therefore, it cannot be said that the Commissioner at Nuh had no
jurisdiction as such, if the claimants-dependents are ordinarily
residing in the area of Nuh. The only argument available with the
appellant is that since the proviso to Section 21(1) of the Act provides
that if the Commissioner, other than the Commissioner having
jurisdiction over the area in which the accident took place, has to give
a notice in the manner prescribed by the Central Government to the
Commissioner having jurisdiction over the area and to the State
Government concerned.
8. It is pleaded that no notice was given by the Commissioner at
Nuh to the Commissioner having jurisdiction over the area in which
the accident took place. The said proviso is only procedural to ensure
that the Commissioner of the concerned jurisdiction has also notice
that the another Commissioner has taken cognizance of the issue and
if the Commissioner at Nuh has not followed the aforesaid procedure,
the claimants cannot be prejudiced for any such irregularity, which
has taken place."
15. The appellant having failed to satisfy the requirement of third
proviso to Sub-Section 30(1) of the Act, this appeal is not
maintainable in view of the failure of the appellant to deposit entire
awarded amount.
16. In view of the facts and circumstances as narrated above, this appeal
is found without any merit and the same is dismissed.
17. Let the record of the authority be returned forthwith.
(Sindhu Sharma)
Judge
JAMMU
Ved-Secy.
09.05.2025
Whether the order is speaking : Yes
Whether the order is reportable : Yes/No
