Vidya Nan Tiwari vs Smt. Prem Bai Markam
2023 Latest Caselaw 6019 MP

                                                      1
                          IN    THE     HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                  BEFORE
                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                            ON THE 13 th OF APRIL, 2023
                                         REVIEW PETITION No. 259 of 2023

                         BETWEEN:-
                         VIDYA NAN TIWARI S/O LATE SHRI RAJKISHORE
                         TIWARI, AGED ABOUT 53 YEARS, R/O 633 BAPU NAGAR
                         RANJHI DISTRICT JABALPUR (MADHYA PRADESH)

                                                                            .....PETITIONER
                         (BY SHRI SANJEEV MISHRA - ADVOCATE)

                         AND
                         1.    SMT. PREM BAI MARKAM S/O LATE SHRI SUKAL
                               SINGH MARKAM, AGED ABOUT 30 YEARS, R/O
                               VILLAGE PIPARIYA MAGRADHA P.O. BUDARA
                               PIPARIYA DISTRICT MANDLA M.P. PRESENT
                               ADDRESS NARETI, B.T.I. COLONY BARELA
                               DISTRICT JABALPUR (MADHYA PRADESH)

                         2.    ANJANA MARKAM D/O LATE SHRI SUKAL SINGH,
                               AGED ABOUT 10 YEARS, R/O VILLAGE PIPARIYA
                               MAGRADHA P.O. BUDARA PIPARIYA DISTRICT
                               MANDLA M.P. PRESENT ADDRESS NARETI, B.T.I.
                               COLONY BARELA DISTRICT JABALPUR (MADHYA
                               PRADESH)

                         3.    AJAY MARKAM S/O LATE SHRI SUKAL SINGH,
                               AGED ABOUT 8 YEARS, R/O VILLAGE PIPARIYA
                               MAGRADHA P.O. BUDARA PIPARIYA DISTRICT
                               MANDLA M.P. PRESENT ADDRESS NARETI, B.T.I.
                               COLONY BARELA DISTRICT JABALPUR (MADHYA
                               PRADESH)

                         4.    WESTERN CENTRAL RAILWAY THROUGH ITS
                               GENERAL   MANGAER JABALPUR (MADHYA
                               PRADESH)

                         5.    SUMER SINGH S/O LATE SHRI RAMPRASAD
                               THAKUR, AGED ABOUT 51 YEARS, R/O VILLAGE
                               KURRE PIPARIYA P.S SIHORA (MADHYA
                               PRADESH)
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
4/13/2023 6:49:23 PM
                                                              2
                                                                                          .....RESPONDENTS
                         (RESPONDENT NOS.1 TO 3 BY SHRI DEEPAK TIWARI - ADVOCATE)
                         (RESPONDENT NO.4 BY SHRI DEVESH BHOJNE - ADVOCATE)
                         (RESPONDENT NO.5 BY SHRI SHANKAR PRASAD SINGH - ADVOCATE)

                               This petition coming on for admission this day, th e court passed the
                         following:
                                                              ORDER

Heard on I.A.No.5115/2023, which is an application under Section 5 of the Limitation Act for condonation of delay in filing of this Review Petition.

Review Petitioner Vidya Nand Tiwari has preferred S.L.P (C) Diary No. (S) 40037/2022 (Vidya Nand Tiwari versus Prem Bai Markam & Others), which was decided by the Apex Court vide order dated 6.2.2023

reserving liberty in favour of the Review Petitioner to raise the issue in regard to payment of interest for the period starting from 10.1.2010 to 7.8.2013 when the claimants were prosecuting their rights before the Motor Accident Claims Tribunal.

None of the respondents have filed reply though they are appearing on advance notice nor they are seeking any time for filing reply.

There is delay of about 143 days in fling of this Review Petition. For the reasons stated in the application, I.A.No.5115/2023 is allowed and the delay in filing of this Review Petition is condoned.

Review Petitioner Vidya Nand Tiwari has filed this Review Petition under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 seeking review of impugned order passed on 22.9.2022 in Miscellaneous Appeal No.5773/2018.

Shri Sanjeev Mishra, learned counsel for the Review Petitioner submits that the date of accident is 10.1.2010. On 31.3.2010, copy of Challan in Criminal Case was received by the claimants. On 12.4.2010, the claimants filed Signature Not Verified Signed by: AMIT JAIN Signing time:

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their claim under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal. The Contractor (Review Petitioner Herein) was not a party before the Motor Accident Claims Tribunal. On 7.8.2013, the claim was withdrawn for filing it before the competent authority. On 22.8.2013, the claim was filed before the Commissioner under Workmen's Compensation Act, 1923. The High Court of Judicature at Allahabad in United India Insurance Company Limited versus Jiyalal & One Another 2020 (4) A.C.C.D 157 6 (Allahabad) decided that no party can claim interest for its own fault, delay and latches and placing reliance on the above-referred judgment, it is submitted by Shri Sanjeev Mishra that he is only pressing a limited ground for review that the interest be waived from 10.1.2010 to 7.8.2013 when the claim was filed before the Commissioner under Workmen's Compensation Act, 1923.

Shri Deepak Tiwari, learned counsel for respondent Nos.1 to 3, Shri Devesh Bhojne, learned counsel for respondent No.4 and Shri Shankar Prasad Singh, learned ocunsel for respondent No.5 support the impugned order.

After hearing learned counsel for the parties and going through the material available on record, few things are as clear as day light. The Review Petitioner was a Contractor for construction of a retaining wall for the Indian Railways. The deceased was engaged to load/unload Muram used for the purpose of said construction. On the spot, a Tractor had turned turtle, as a

result of which, the deceased related to the claimant had come under the Muram and sustained grievous injuries. Admittedly, the present Review Petitioner was present at the place of incident and as submitted by Shri Sanjeev Mishra, learned counsel for the Review Petitioner that the Review Petitioner had taken the injured to the Hospital for treatment etc. Thus, it is evident that when the accident took place near Kurrey Phatak, Signature Not Verified Signed by: AMIT JAIN Signing time:

4/13/2023 6:49:23 PM

the Review Petitioner was aware of two things, namely, the employment of deceased Sukal Singh and the injuries sustained by Sukal Singh due to the accident taking place when the Tractor used for the purpose of carrying the goods for construction, which was contracted to the Review Petitioner had turned turtle. Though Shri Sanjeev Mishra, learned counsel for the Review Petitioner has disputed this finding but now this finding has attained finality by virtue of two orders, one passed by the learned Commissioner under Workmen's Compensation Act, 1923 on 27.11.2018 and then by this High Court.

Thus, it is no more open to the Review Petitioner to challenge this finding because the limited liberty was granted by the Apex Court vide order dated 6.2.2023 to raise the issue in regard to admissibility of interest for the period between 10.1.2010 to 7.8.2013 when the claimants were prosecuting their case before the Motor Accident Claims Tribunal i.e. before an inappropriate forum.

Thus, once it is an admitted fact which now cannot be disputed in this Review Petition in terms of the limited liberty granted by the Apex Court, the only issue which arises for consideration is that when the Contractor/Employer had knowledge of the factum of accident then what was his duty and responsibility under the provisions of the Workmen's Compensation Act, 1923. Was he not liable to make payment of compensation within thirty days irrespective of the fact whether the claim was prosecuted before the Motor Accident Claims Tribunal or some other forum?.

When answer to this question framed above is that the Review Petitioner was the Employer and he had knowledge of the accident because he had himself admittedly taken the deceased to the Hospital for treatment and had

Signature Not Verified Signed by: AMIT JAIN Signing time:

4/13/2023 6:49:23 PM

looked after the deceased during the period of treatment then he was required to discharge his liability, which admittedly he failed to discharge, therefore, the decision of United India Insurance Company Limited versus Jiyalal & One Another (supra), being distinguishable on their own facts will not be applicable to the facts of the present case. In United India Insurance Company Limited versus Jiyalal & One Another (supra), for an accident, which took place on 1.10.2010, the claim was filed in the year 2019 and, therefore, the High Court of Judicature at Allahabad held that the interest will be payable from the date of filing of the claim petition and not from the date of the accident taking place but in the present case, there are statutory provisions contained in Workmen's Compensation Act, 1923 requiring the Employer to make payment of compensation in favour of the deceased/injured within a period of thirty days of receiving the intimation of the accident.

As there is a mandatory and statutory provision contained in Section 4 of the Employee's Compensation Act, 1923 and admittedly the Employer had knowledge about the accident and, therefore, in view of the said mandatory and statutory provision, the Employer was required to deposit the amount of compensation within thirty days but he failed to do so, the interest has rightly been awarded from expiry of thirty days of the date of accident till the date of the actual payment. There is no infirmity in the impugned order passed on 22.9.2022 in Miscellaneous Appeal No.5773/2018 calling for any interference in this Review Petition.

Accordingly, this Review Petition fails and is dismissed.

(VIVEK AGARWAL) JUDGE Signature Not Verified Signed by: AMIT JAIN Signing time:

4/13/2023 6:49:23 PM

amit

Signature Not Verified Signed by: AMIT JAIN Signing time:

4/13/2023 6:49:23 PM