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Judgment
A.V. Chandrashekara, J.—Heard learned Counsel for the appellant and perused the records Appeal is admitted..
The Insurer of the Luxury bus bearing registration No. MP-22/B-7096 has filed this appeal as the Insurer is aggrieved by the final order dated 21.12.2010 under which the learned Workmen''s Compensation Commissioner, Udupi has granted in all a sum of Rs. 1,99,400/- as compensation to respondents 1 to 3 who were the claimants before him.
The facts leading to the filing of the claim petition by respondents 1 to 3 hereunder before the Workmen''s Compensation Commissioner, Udupi, in CR-11/FC/2003 are as follows:
"A person by name Ramesh Anup Sherigar was the husband of the respondent No. 1 and father of respondents 2 and 3 herein. He was stated to be driving the vehicle in question which belonged to one lady named Jyothi Ramesh Chellam, a resident of Ullhan Nagar, Kalyan District, Maharashtra. The case of the claimants is that Mrs. Ramesh Anup Sherigar, husband of the first claimant and father of respondents 2 and 3 had been appointed as driver by Smt. Jyoti Ramesh Chellani to driver her luxury bus bearing registration No. MP-22/B-7096. On 15.1.1999, said Ramesh Anup Shengar was stated to be driving the said bus fro Ullhan Nagar to Dhoole. On 14.1.1999 at about 10 pm, the bus started its journey from Ullhan Nagar to Dhoole and had 13 passengers. The bus in question was stopped on the request of passengers for taking tea. The bus was stated to be moving on Mumbai-Agra Road towards Dhoole. The first driver of the bus who was resident of Kalyan Tisgaon was driving the said bus and the bus was stopped near Harihar Dhaba. He opened the doors and passengers were getting down. At that time, the first driver Ramesh got down and was crossing the road in order to attend nature call. At about 4 am in the early morning, the jeep coming from Nasik side in a great speed dashed against the driver Ramesh, did not stop and sped away from the spot. Nobody could notice the number of the jeep. The second driver saw the accident and told the informant Mr. Pandurang Dhyanoba Javare who chose to file a complaint before the jurisdictional Police." 4. The claimants chose to file claim petition in Udupi on the ground that they were residing within the jurisdiction of Udupi Workmen''s Compensation Commissioner as on the date of filing of the petition and that the accident had taken place when Mr. Ramesh was discharging his duties as driver under the Respondent No. 1.
Respondent No. 1-owner did not appear before the Workmen''s Compensation Commissioner. The time limit for filing the petition was two years. It ought to have been filed on or before 14.1.2001, but the petition was filed on 19.8.2003. On accepting the reasons assigned by the claimants, the learned Workmen''s Compensation Commissioner has condoned the delay and has come to the conclusion that there existed relationship of employer and employee between the Respondent No. 1 and deceased and that his death took place during the course of employment. Accordingly, a sum of Rs. 1,99,400/- has been awarded as compensation.
Sri. O. Mahesh, learned Counsel for the appellant-Insurer has vehemently argued that the claimants have not have given any valid reasons for condonation of such huge delay and the delay could not have been condoned mechanically. The claimants have not discharged the initial burden cast upon them to prove existence of relationship of employer and employee and death of husband of the Respondent No. 1 during such employment. The claim petition should have been filed before the jurisdictional Workmen''s Compensation Commissioner in Maharashtra and not in Udupi.
After perusing the records, it is evident that Ramesh the deceased husband of first claimant was a driver. It is true that she has not placed any documentary evidence in regard to the fact that her husband was a driver. Ex. P7 - is the Post mortem report submitted by the concerned Doctor who conducted autopsy on the dead body of husband of the first respondent, Ex. P4 is the statement given by one Pandurang Dhyanoba Javare who was very much present in the said bus at the time of the accident. His statement was recorded by the Police on 15.1.1999. He has specifically stated before the Police that he was the Manager of Vaibhav Travels for the past four months and they had one luxury bus bearing registration No. MP-22/B-7096 which was usually plying from Ullhan Nagar in Bombay to Dhoole. On 14.1.1999, at that time there were 13 passengers. The bus was stopped at the request of passengers for taking tea. The bus was stated to be moving on Mumbai-Agra Road towards Dhoole. The first driver of the bus who was a resident of Kalyan Tisgaon was driving the said bus and the bus was stopped near Harihar Dhaba. He opened the doors and passengers were getting down. At that time, the first driver Ramesh got down and was crossing the road in order to attend nature call. At about 4 am in the early morning, the jeep coming from Nasik side in a very great speed dashed against the driver Ramesh, did not stop and sped away from the spot. Nobody could notice the number of the jeep. What is submitted by learned Counsel for the appellant is that the Workmen''s Compensation Commissioner could not have entertained the petition, in view of the prohibition found in section 21 of the Workmen''s Compensation Act, 1923. For better understanding Section 21 of WC act is reproduced below:
Venue of proceedings and transfer.-
(1) Where any matter is under this Act 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 a Commissioner] for the area in which the accident took place which resulted in the injury: Provided that, where the workman is the master of a ship or a seaman, any such matter may be done by or before a Commissioner] for the area in which the owner or agent of the ship resides or carries on business.
(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 dependants of a lump sum without giving such party an opportunity of being heard:] Provided further] that no matter other than a matter relating to the actual payment to a workman or the distribution among dependants of a lump sum shall be transferred for disposal under this sub-section to a Commissioner in the same State save with the previous sanction of the State Government or to a Commissioner in another State save with the previous sanction of the State Government of that State], unless all the parties to the proceedings agree to the transfer.
(3) The commissioner to whom any matter is so transferred shall, subject to rules made under this Act, inquire thereinto and, 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."
The fact that deceased Ramesh was a permanent resident of Ullhan Nagar is not in dispute. What is deposed by PW-1 is that she was living with her husband in Ullahan Nagar when the accident took place. Nowhere in the cross examination it is suggested to her that she was residing in Ullhan Nagar even as on the date of filing claim petition or subsequent to it. It is to be seen that Sugandhi was a permanent resident of Udupi District and Ramesh started his career as driver and therefore, she was expected to live with her family at Thane. In the light of unfortunate and untimely death of Ramesh, his wife and child had to come back to their village to earn their livelihood. The fact that Suguna was doing Beedi rolling work for her livelihood is not disputed. Liberal meaning has to be given to Sub section 2 of Section 21 of WC Act when the dependents had to come back to their native place to file claim petition of this nature claiming compensation from the Workmen Compensation Commission within whose jurisdiction they were living, Therefore, the aspect of jurisdiction cannot blown out of proportion in the present case.
The learned Judge has adopted a liberal approach while condoning the delay in filing the claim petition. In the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , the Hon''ble Apex Court has laid down 7 guidelines and has held that delay must be liberally construed and no pedantic approach should be adopted while considering the question of delay. When a semi literate lady has lost her husband and she has to look after two children who are depending on her, the learned Commissioner has rightly condoned the delay and no perversity is found in the approach adopted by the Commissioner.
So far as relationship of employer and employee is concerned, PW-1 is not been able to produce any document other than Ex. P-2 FIR lodged by Han Balawant Rakibe and Panchanama drawn by the Police vide Ex. P-3 and statement of Pandurang Dhyanoba Javare. These police records have been prepared by the police while discharging their official duties such statements recorded under Section 161 of Cr.P.C. are clearly admissible in evidence. Statement of Pandurang Dhyanoba Javare discloses that first respondent was the owner of the bus in question and Ramesh was the driver of the bus since bus was plied between Ullahan Nagar to Dhoole and driver on the night of 14.1.1999. There is no reason to disbelieve the contents of Ex. P-4 and Ex. P-2 FIR lodged by Han Balawant Rakibe, who was the Assistant Police Inspector of the jurisdiction, Oozar Police station where the accident took place.
On looking into the totality of the circumstances of the case and materials placed on record, the learned Commissioner has adopted right approach to the real state of affairs and has exercised his discretion in a judicious manner. There is no good ground to interfere with the order of the learned Commissioner. Hence, the appeal is liable to be dismissed.
ORDER
The appeal is dismissed as unfit for admission.
The learned counsel for the insurer has requested this Court not to grant any interest from the date on which the claim petition was dismissed for default before the Commissioner and the same being restored by this Court in MFA 469/2006 on 24.10.2008.
Since, no order has been passed in MFA 469/2006 about the inability of claimants for any interest for the said period, request of the learned counsel for the insurer is rejected.
Parties to bear their own costs.
Amount, if any, deposited by the insurer before this Court be transmitted to MACT, Udupi at the earliest.