Oriental Insurance Co. Ltd. vs Takshashila and Others

N.K. Mody, J.—Being aggrieved by the order dated 25/11/2011 passed by Commissioner for Workmen''s Compensation Cum Labour Court, Jabalpur in case No. 128/2006 whereby claim petition filed by the respondents No. 1 to 4 was allowed and compensation of Rs. 3,98,800/- was awarded alongwith interest @ 12% p.a. w.e.f. 20/02/2005, present appeal has been filed. This appeal was admitted on the following substantial questions of law:- (1) Whether in the facts and circumstances of the case, learned Court below was justified in holding the appellant liable for payment of compensation while deceased was driving the vehicle for which neither offending vehicle was having the valid permit nor the deceased was having the valid license?

(2) Whether in the facts and circumstances of the case, learned Court below was justified in passing the award against the appellant while learned Court below was having no territorial jurisdiction?

Short facts of the case are that respondents No. 1 to 4 file a claim petition before the learned Court below alleging that deceased/Nirpat Singh was driver on a truck bearing registration No. M.P.-23/DA/9185 which was owned by respondent No. 5 and insured with the appellant. It was alleged that when the deceased was in the said truck at Nepal he was murdered by terrorist. It was alleged that since deceased was in the employment of respondent No. 5 and death took place during course of the employment, therefore, claim petition be allowed and compensation be awarded. The claim petition was contested by the appellant on various grounds including on the ground that offending vehicle was having no permit on the date of incident and also deceased was having no valid license on the date when the incident took place to drive the offending vehicle at Nepal. It was alleged, that since the accident took place out of India, therefore, Court at Jabalpur is having no jurisdiction to decide the claim petition. It was prayed that claim petition be dismissed. After framing of issues and recording of evidence, learned Court below allowed the claim petition filed by the respondents No. 1 to 4 and awarded the compensation against which the present appeal has been filed.

Learned counsel for the appellant argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set-aside. It is submitted that as per proviso to Section 21 of Workmen''s Compensation Act, 1923 learned Court below was not justified in allowing the claim petition filed by the respondents No. 1 to 4. It is submitted that undisputedly incident took place at Nepal. It is submitted that since the incident took place during the course of employment, therefore, liability to pay the compensation is on the employer as the offending vehicle was being driven in violation of terms of policy. It is submitted that appeal filed by the appellant be allowed and the impugned order passed by the learned Court below be set-aside.

Learned counsel for the respondents No. 1 to 4 submit that ordinarily claimants are residing at Seoni, therefore, claim petition was filed at Jabalpur and the Court at Jabalpur is having the jurisdiction to decide the same. For this contention reliance is placed on a decision in the matter of Morgina Begum Vs. Managing Director, Hanuman Plantation Ltd., wherein Hon''ble Apex Court had an occasion to dealt with the Section 21(1)(b) of Workmen''s Compensation Act, 1923 and it was held that application for compensation could be filed at location where the claimant parents had moved after death of their son. It was also held that Section 21(1)(b) permits filing of claim petition in case of death where the dependent ordinarily resides. It is submitted that learned Court below committed no error in allowing the claim petition filed by the respondents No. 1 to 4 and awarding compensation. It is submitted that appeal filed by the appellant has no merits and the same be dismissed.

From perusal of record, it appears that to prove the case respondents No. 1 to 4 has filed the documents which are Ex. P/1 to P/6. Apart from this, appellant has filed the documents Ex. D/1 and D/2. Respondents No. 1 to 4 has examined Takshashila as AW/1. Appellant has examined P. Nagarajan NAW/1, Babulal Arya NAW/2 and Paramjeet Singh NAW/3.

Section 21 of Workmen''s Compensation Act deals with venue of proceedings and transfer, which reads as under:

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-

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

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

(c) the employer has his registered office:

Provided that no matter shall be proceeded 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:

Provided further that, where the workman, being the master of a ship or a seaman or the captain or a member of the crew of an aircraft or a workman in a motor vehicle or a company, meets with the accident outside India any such matter may be done by or before a Commissioner for the area in which the owner or agent of the ship, aircraft or motor vehicle resides or carries on business or the registered office of the company is situated, as the case may be.

(1A) If a commissioner, other than the Commissioner with whom any money has been deposited u/s 8, proceeds with a matter under this Act, the former may for the proper disposal of the matter call for transfer of any records or moneys remaining with the latter and on receipt of such a request, he shall comply with the same.

(2) If a commissioner is satisfied [that any matter arising out of any proceedings pending before him] can be more conveniently dealt with by any other Commissioner, whether in the same State or not, he may, subject to rules made under this Act, order such matter to be transferred to such other Commissioner either for report or for disposal, and, if he does so, shall forthwith transmit to such other Commissioner all documents relevant for the decision of such matter and, where the matter is transferred for disposal, shall also transmit in the prescribed manner any money remaining in his hands or invested by him for the benefit of any party to the proceedings:

[Provided that the Commissioner shall not, where any party to the proceedings has appeared before him, make any order of transfer relating to the distribution among dependents of a lump sum without giving such party an opportunity of being heard:]

(3) The Commissioner to whom any matter is so transferred shall, subject to rules made under this Act, inquire there into any, if the matter was transferred for report, return his report thereon or, if the matter was transferred for disposal, continue the proceedings as if they had originally commenced before him.

(4) On receipt of a report from a Commissioner to whom any matter has been transferred for report under sub-section (2), the Commissioner by whom it was referred shall decide the matter referred in conformity with such report.

(5) The State Government may transfer any matter from any Commissioner appointed by it to any other Commissioner appointed by it.

From perusal of the record it is evident that earlier also claim petition was filed by respondent Nos. 1 to 4 for compensation under the provisions of Motor Vehicles Act as is alleged by respondent No. 2 in its written statement, of which copy is not on record. In the written statement the plea which has been raised by appellant for avoiding the liability is that MACT, Seoni has already held that death of Nirpat Singh was not during course of employment, therefore, claim petition is not maintainable. The other ground which was taken was that the deceased Nirpat Singh was not possessing valid driving license to drive the offending vehicle at Nepal. The permit which is filed by the appellant is valid to ply the vehicle within the territory of India and there was no permit to take the vehicle abroad. It was alleged that since the vehicle was without permit, fitness certificate and deceased was not possessing valid license, therefore, the vehicle was being driven in violation of terms of policy. So far as jurisdiction is concerned, it is alleged that since the accident occurred at Kathmandu and respondent Nos. 1 to 4 are not resident of Jabalpur, therefore, Jabalpur Court is having no jurisdiction. It was also alleged that if the claim petition would have been filed at Nagpur, then full facts could have been brought on record by respondent No. 5 who is having the office at Nagpur.

No issue was framed by the learned Court below relating to territorial jurisdiction of the Court. No effort was made by appellant by moving an appropriate application to frame additional issue relating to jurisdiction. To prove the case respondent Nos. 1 to 4 have examined respondent No. 1. In cross-examination on behalf of appellant, respondent No. 1 has stated that she is resident of Seoni. Appellant has examined P. Nagrajan Administrative Officer of Insurance Company, who has stated that as per policy Ex. D/1 driver should have possess the license of the place where he is driving the vehicle and also the vehicle must be having a permit of the place where accident occurred. He has further stated that the deceased was having license to drive the vehicle in India and the offending vehicle was also having a permit of four States, while accident took place at Nepal, therefore, there was violation of terms of policy, hence appellant is not liable for payment of compensation.

Thus, neither any issue was framed in this regard that the tribunal has no jurisdiction to hear and decide the claim petition, nor any evidence was led in that regard. Even respondent No. 1 was not cross-examined in connection to territorial jurisdiction.

As per Section 21 of Workmen''s Compensation Act the claim petition is maintainable where the accident took place which resulted in injury or in case of death the dependent claiming the compensation ordinarily resides or employer has his registered office. As per second proviso of Section 21 if a workman in a motor vehicle meets with the accident outside India, the matter can be dealt with before Commissioner for the area in which owner of motor vehicle resides or carries on business, but as per Clause (2) of the proviso of Section 21 of the Act if the Commissioner before whom the claim petition is filed, is satisfied that the matter can be dealt with more conveniently by any other Commissioner he may transfer the matter to Commissioner either for report or for disposal. Keeping in view the amendment in Section 21 of Workmen''s Compensation Act and the law laid down by the Hon''ble Apex Court in the matter of Morgina Begum (Supra) wherein it was observed that the idea behind introduction of this amendment is that migrant labourers all over the country often go elsewhere to earn their livelihood. When an accident takes place then in order to facilitate the claimants they may make their claim not necessarily at the place where the accident took place but also at the place where they ordinarily reside. This amendment was introduced in the Act in 1995. This was done with a very laudable object, otherwise it could cause hardship to the claimant to claim compensation under the Act. It is not possible for poor workmen or their dependents who reside in one part of the country and shift from one place to another for their livelihood to necessarily go to the place of the accident for filing a claim petition. Labour statutes are for the welfare of the workmen.

In the present case since no issue was framed in that regard and appellant also did not bring it to the notice of Commissioner that it has no territorial jurisdiction to hear and decide the claim petition, on the contrary appellant submitted the jurisdiction of the learned Court below by submitting the written statement and by cross-examining AW/1, who was examined by appellant and also adduced the evidence, this Court finds that at this stage the order passed in favour of respondent Nos. 1 to 4 cannot be defeated only on the ground that learned Court below was having no territorial jurisdiction. Since the appellant has led the evidence, therefore, it appears that no prejudice has caused to the appellant.

So far as other ground which has been raised by the appellant that the deceased was not possessing valid driving license to drive the vehicle at Nepal is concerned, undoubtedly policy was issued for India and for Nepal as well, while at the time of issuance of policy the offending vehicle was having permit of all the four States in India and not for Nepal. No evidence has been adduced by the appellant to prove that the deceased was having no license to drive the vehicle at Nepal. Since the plea was raised by the appellant that the deceased was not having license to drive the vehicle at Nepal, therefore, heavy burden was on the appellant to prove this fact. No effort was made by the appellant by issuing notices to the employer who is respondent No. 5 to produce the license of deceased. Though the fact that the deceased was not having license to drive the offending vehicle at Nepal, was not proved by the appellant, then too, if for the sake of arguments it is assumed that the deceased was not having license to drive the vehicle at Nepal, then too, it makes no difference in the present case as the incident is not outcome of negligent driving of deceased, but the incident took place when the deceased was killed by terrorist. In the facts and circumstances of the case claim petition filed by respondent Nos. 1 to 4 cannot be defeated on this ground also. In view of this, appeal filed by the appellant has no merits and the same stands dismissed.

No order as to costs.