New India Assurance Co. Ltd. vs Kishan Dei and Others

Gokal Chand Mital, J.—Ami Chand, aged 23 years was employed by Mehndiratta Transport Company (hereinafter called ''the Company''), as a driver to drive one of the Company''s truck. On 10/11th November, 1985, Ami Chand was driving truck No. DEL 427 belonging to the Company, and in the course of his employment was going from Jaipur to Kotputli. On National Highway No. 8, about 8-1/2 Kilometres before Kotputli, the truck met with an accident in which it over-turned and Ami Chand driver was crushed under the truck and died on the spot.

His widow, two minor children and parents filed a claim application under the Workmen''s Compensation Act, 1923 (for short ''the 1923 Act'') before the Commissioner, Jaipur (under the Workmen''s Compensation Act''), within whose jurisdiction the accident had taken place. The Company, the owner of the truck and the proprietor of the Company and New India Assurance Company Ltd. with whom the truck was insured, were impleaded as respondents. The Jaipur Commissioner issued notices to all the three respondents and in spite of service none of them appeared and the Court proceeded ex-parte. Ultimately, the Jaipur Commissioner transferred the application to the Commissioner at Gurgaon, and the latter after recording evidence by order dated 19-11-1986 awarded Rs. 61,586 plus penalty of 30 per cent on the awarded amount along with interest at the rate of 6 per cent per annum till realization. Since the truck was insured, the Insurance Company was made liable to pay the whole amount.

Against the aforesaid order, the Insurance Company filed appeal on 20-2-1987. Later on, on the office objection, application u/s 5 of the Limitation Act, for condensation of delay was filed on 9-3-1987. The application was ordered to be heard with the appeal.

The claimants filed reply to the applications condonation of delay.

Before considering the appeal on merits, it has to be seen whether the delay deserves to be condoned.

In the application for condonation of delay the case of the Insurance Company is that it received notice from the Commissioner under the Workmen''s Compensation Act, 1923 on 23-2-1986 by which the Insurance Company was directed to deposit the amount by 19-12-1986. The Company sent the notice to their Advocate at Ourgaon requesting him to tend the copy of the order. On 9-1-1987, the Advocate wrote back that file was not available and on inspection he would send the file. The copy was obtained on 22-1-1987 and on reading the same it was known that the order was ex-parte. It is then mentioned in the application that the Insurance Company came to know of the particulars of the award on 3-2-1987 when copy wai received. On this basis the prayer made is that the appeal is within time and in any case the delay be condoned. It is important to notice that the application is not supported by an affidavit.

In reply the claimants have pointed out that Jaipur Commissioner had issued notice by registered AD post to all the respondents for appearing in his Court on 6th September, 1986, and the AD was duly received back after service, which is at page 17 of the record and on their non-appearance, the ex-parte proceedings were taken. Thereafter, notice of the ex-parte award was sent by the Commissioner Gurgaon vide letter dated 20-11-1986 by registered AD post, copy of which is available at page 29 of the record, and the AD receipt shows that notice of the ex-parte award was received by the Insurance Company on 24-11-1986, which is at page 27 of the record. On this basis, it is pleaded that the Insurance Company had notice of the ex-parte award on 24-11-1986 and the notice referred to by the Insurance Company in the application is the second notice for payment of the amount under the ex-parte award. On these facts it is argued that the Insurance Company was aware of the proceedings as well as the ex-parte award and, therefore, the limitation has to be counted from the date of the award i.e. 19-11-1986 and the appeal filed on 20-2-1987 is barred by 33 days as limitation to file the appeal is 60 days. Even from the date of knowledge i.e. 24-11-1986, the appeal is barred by 28days. No explanation for the delay from the date of the award or from the date of knowledge has been furnished and the explanation furnished in the application, which is not supported by an affidavit, is hardly an explanation for condonation of delay, especially when the compensation payable to the heirs of the deceased workman was the subject matter of dispute. Hence, I hold that the appeal is time barred and dismiss the same as such.

Adverting to the merits, the learned Counsel for the Insurance Company, could not urge any point except technical objection that proper procedure for transfer of the case from Jaipur Court to Gurgaon Court was not followed. The deceased was getting Rs. 700/ - per month and if dependency for the wife, two minor children and parents was to be considered as Rs. 500/- per month and, if claim had been before the Motor Accident Claims Tribunal, then by applying multiplier of 20 years, the claimants would have been entitled to Rs. 1,20,000/-. Since Motor Vehicles Act, 1939 (for short ''the 1939 Act''), provides that in regard to workman, application is to be filed under the 1923 Act, the application was filed under that Act and there compensation is mentioned in the schedule, which is far below as compared to the compensation payable under the law of Torts or the Fatal Accidents Act or under the 1939 Act.

The counsel for the Insurance Company had relied on Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , for proposition that question of condonation of delay should be construed liberally and as far as possible the dispute should be decided on merits and not on technicalities. On merits, neither any argument was raised before me except the one noticed above, nor could be raised by the Insurance Company in view of Section 96(2) of the 1939 Act, except those provided in this sub-section, which are other than challenging the negligence and quantum of compensation. Therefore, the objection which is raised on behalf of the Insurance Company, about the defective transfer, if any, is a technical objection. Moreover, there is some indication on the record that permission of the State Government for transfer was sought, and probably on obtaining permission, the case was transferred from Jaipur Court to Gurgaon Court. Therefore, on merits also, the Insurance Company has no case, particularly when they allowed the proceedings to go on ex-parte, the technical objection about any irregularity in the order of transfer cannot be raised in appeal since no manifest injustice has been pleaded or proved.

For the reasons recorded above, the appeal and the application for condonation of delay are dismissed with costs, which are quantified at Rs. 500/-.