Smt. Urmila and Another vs Workmen''s Compensation Commissioner and Others

Sibghat Ullah Khan, J.—Heard Sri. Lalit Kumar, learned Counsel for the petitioners and Sri. Saral Srivastava, learned Counsel for respondent No. 2, Insurance Company. Petitioners-claimants filed claim petition before Workmen''s Compensation Commissioner/Deputy Labour Commissioner, Ghaziabad against M/s. Sri Veer Singh, respondent No. 3 in this writ petition and National Insurance Company, respondent No. 2 in this writ petition. The case set up was that late Sri Hari Kishan, husband of petitioner No. 1 and father of petitioner No. 2 was a driver of M/s. Sri Vir Singh on his motor vehicle and he died on 31.5.1999 during the course of his employment in an accident in which three other persons had also died. It was also asserted that at the time of accident, the vehicle of the owner was insured with the insurance company, the respondent No. 2. The insurance company pleaded that even though for the relevant time the vehicle (Matador) was insured with it (from 15.2.1999 to 16.2.2002), however as claimants had not sent any notice to it u/s 8 of the Act, hence the claim against it must be rejected. The vehicle owner did not appear in spite of notice, hence claim was directed to proceed ex parte against him on 19.9.2003. However, insurance company, opposite party No. 2 had appeared.

The Commissioner allowed the claim petition on 18.10.2003 and directed Vir Singh, the vehicle owner to pay Rs. 216910/- to the claimants along with interest. In the said order, it was mentioned that in the written statement filed by the insurance company, it was admitted that the vehicle was insured with it however as vehicle owner had not appeared in spite of service, hence liability to pay the compensation was to be fastened upon him.

Thereafter, claimants-petitioners filed review petition before the Workmen''s Compensation Commissioner on 5.11.2003 praying that the liability to pay Compensation must be fastened upon the insurance company. The review petition was dismissed on 12.5.2005, which order has been challenged through this writ petition by the claimants.

The Commissioner held that it had no power of review. I fully agree with the learned Counsel for the petitioners that in the first order dated 18.10.2003, there was a patent error of law. Even in spite of admission of the insurance company regarding insurance of the vehicle in question liability had not been fastened upon the insurance company. However, I also agree with the view taken by the Workmen Compensation Commissioner that he had no power of review. u/s 6 of Workmen''s Compensation Act, 1923, a specific power of review which is quite limited regarding half monthly payment has been provided. Accordingly, by necessary implication all ether types of review are prohibited. Moreover, by virtue of section 23 of the Act certain powers exercisable by civil Court under C.P.C. have been conferred upon the Commissioner while hearing the matters. The powers are taking evidence on oath enforcing the attendance of witnesses and compelling the production of documents and material objects. The power of review of Civil Court has not been mentioned in the said section. In this regard reference may be made to Nanak Chand Shadiram Vs. Mahabir and Another, and 1998 Labour and Industrial Cases 34, wherein it has been held that under the Act there is no general power of review available to the Commissioner.

It may be mentioned that power of review would have been available to the Commissioner in case some fraud had been shown to have been played by the insurance company. However, absolutely no fraud was committed by the insurance company. It was purely a case of patently erroneous order passed by the Workmen Compensation Commissioner on 10.10.2003. Accordingly, the authority of the Supreme Court in United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, cited by learned Counsel for petitioners is not applicable to the facts of the case.

This writ petition has been filed on 22.10.2006 (against order dated 09/12.5.2005) i.e. after 19 months. In the entire writ petition not a single word has been stated about the latches.

In case writ petition had been filed within 60 days the period of limitation prescribed for appeal u/s 30(2) of Workmen Compensation Act, then this writ petition could be treated to be an appeal and would have been allowed. Accordingly, even after holding that the order sought to be reviewed was utterly illegal, this writ petition directed against the order refusing to review the judgment is dismissed on the ground that Workmen''s Compensation Commissioner has no jurisdiction to review its order.