Karnataka High Court
The Branch Manager vs Mohammadaziz S/O Fathemohammad Khan ... on 22 July, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 22ND DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
MISCELLANEOUS FIRST APPEAL NO.32620/2011(WC)
C/W
MISCELLANEOUS FIRST APPEAL NO.32621/2011
MISCELLANEOUS FIRST APPEAL NO.32618/2011
MISCELLANEOUS FIRST APPEAL NO.32619/2011
MFA 32620/2011
BETWEEN:
The Branch Manager
New India Assurance Company Limited,
Bijapur, represented herein by its
Divisional Manager, Sangmeshwar
Colony S.P. Temple Road, Gulbarga.
... APPELLANT
(Shri Shivanand Patil, Advocate)
AND:
1. Mohammadaziz S/o Fathemohammad Khan
Age: 33 years, Occupation: Linemen
R/o Dobele Bijapur.
2. M/s National Electricals
R/o Shop No.7 Khadde Masjid Complex
2
New Vithal Mandir Road,
Bijapur.
... RESPONDENTS
(Shri Basavaraj R. Math, Advocate for caveat/respondent-1
Respondent-2 served)
This Miscellaneous First Appeal is filed under Section 30
(1) of the Workmen's Compensation Act, 1923 against the
Judgement and Award dated 23.06.2009 passed in WCA/SR
No. 183/2008 on the file of the Labour Officer and
Commissioner for Workmen's Compensation, Sub Division
No.1, at Bijapur, partly allowing the claim petition and
awarding the compensation of Rs. 1,49,746/- with interest at
12% per annum.
MFA 32621/2011
BETWEEN:
The Branch Manager
New India Assurance Company Limited
Bijapur, represented herein by its
Divisional Manager, Sangmeshwar
Colony S.P. Temple Road,
Gulbarga.
... APPELLANT
(Shri Shivanand Patil, Advocate)
AND:
1 Anwar Ahmed S/o Hajilal Adhoni
Age:25 years, Occupation: Linemen
R/o Mathpath galli Bijapur.
3
2. M/s National Electricals
R/o Shop No.7 Khadde Masjid Complex
New Vithal Mandir Road,
Bijapur.
... RESPONDENTS
(Shri Basavaraj R. Math, Advocate for caveat/respondent-1
Respondent-2 served)
This Miscellaneous First Appeal is filed under Section 30
(1) of the Workmen's Compensation Act, 1923 against the
Judgement and Award dated 23.06.2009 passed in WCA/SR
No. 181/2008 on the file of the Labour Officer and
Commissioner for Workmen's Compensation, Sub Division
No.1, at Bijapur, partly allowing the claim petition and
awarding the compensation of Rs. 1,32,822/- with interest at
12% p.a.
MFA 32618/2011
BETWEEN:
The Branch Manager
New India Assurance Company Limited
Bijapur, Represented herein by its
Divisional Manager, Sangmeshwar
Colony S.P. Temple Road,
Gulbarga.
... APPELLANT
(Shri Shivanand Patil, Advocate)
AND:
1 Sanjeev S/o Dattu Padatara
Age:27 years,
4
Occupation: Linemen
R/o Shiralshetty Oni Bijapur.
2. M/s National Electricals
R/o Shop No.7 Khadde Masjid Complex
New Vithal Mandir Road,
Bijapur.
... RESPONDENTS
(Shri Basavaraj R. Math, Advocate for caveat/respondent-1
Respondent-2 served)
This Miscellaneous First Appeal is filed under Section 30
(1) of the Workmen's Compensation Act, 1923 against the
Judgement and Award dated 23.06.2009 passed in WCA/SR
No. 182/2008 on the file of the Labour Officer and
Commissioner for Workmen's Compensation, Sub Division
No.1, at Bijapur, partly allowing the claim petition and
awarding the compensation of Rs. 1,57,298/- with interest at
12% p.a.
MFA 32619/2011
BETWEEN:
The Branch Manager
New India Assurance Company Limited
Bijapur, Represented herein by its
Divisional Manager, Sangmeshwar
Colony S.P. Temple Road,
Gulbarga.
... APPELLANT
(Shri Shivanand Patil, Advocate)
5
AND:
1 Ismail S/o Hussainsab Nidoni
Age:29 years, Occupation: Linemen
R/o Dobalegalli Bijapur.
2. M/s National Electricals
R/o Shop No.7 Khadde Masjid Complex
New Vithal Mandir Road, Bijapur.
... RESPONDENTS
(Shri Basavaraj R. Math, Advocate for caveat/respondent-1
Respondent-2 served)
This Miscellaneous First Appeal is filed under Section 30
(1) of the Workmen's Compensation Act, 1923 against the
Judgement and Award dated 23.06.2009 passed in WCA/SR
No. 180/2008 on the file of the Labour Officer and
Commissioner for Workmen's Compensation, Sub Division
No.1, at Bijapur, partly allowing the claim petition and
awarding the compensation of Rs. 1,29,168/- with interest at
12% per annum.
These appeals coming on for Orders this day, the Court
delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the respondent.
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2. The appeals are preferred after a delay of 838 days. The applications in IA No.3/2011 in MFA Nos.32620/2011, 32618/2011, 32621/2011 and IA No.2/2011 in MFA No.32619/2011 are filed seeking condonation of delay in each of these appeals. The application is supported by an affidavit, which reads as follows;
3. That the deponent is a Divisional Manager of the appellant-company and that he is conversant with the facts of the case. The impugned judgment was rendered on 26.03.2009. In explaining the delay in filing this appeal, the deponent further states that the office of the appellant was attached to the Gulbarga Divisional Office. With the establishment of a Divisional Office at Bijapur, there were new staff recruited and appointed. As the office was new, there was confusion in handling matters and the staff was under the impression that the file pertaining to the present appeals, was with the counsel attending to the case and the appellant-company and its men 7 were blissfully unaware of the judgment and award till November 2011. It is only in November 2011, i.e., one and half years after the judgment was rendered that when the claimants sought to execute the award, that the appellant-company woke up to the situation and after making a desperate enquiry and securing certified copies of the judgment as on 28.11.2011, it was submitted to their counsel for further processing and preparation of appeals, it is thereafter that the present appeals are filed as on 08.12.2011.
4. The above explanation cannot be accepted, on the face of it. Notwithstanding that an office at Bijapur was newly established and that the officers of the company had remained unaware of the judgment and award and that they could take steps only after coming to know the award sought to be executed against the company, is indication of casual approach of the appellant-company and since the award is passed in a proceeding under a social beneficial legislation and the 8 entertainment of the present appeals at this remote point of time, even though they have been filed in the year 2011, the matters having come up for consideration of condonation of delay and other reliefs sought for only in the year 2014, it would result in a travesty of justice if this application is entertained and the claimants are deprived of the benefit.
5. The learned counsel for the appellant would contend that while exercising the discretion of the Court in the present appeals, this Court would have to keep in view the merit of the case and would assert that the primary ground urged in the present appeals is the limited liability of the appellant-company under the policy of insurance under which appellant-company has been held liable. The limited liability was limited to Rs.2,48,000/- in respect of risk of eight employees only. Therefore, the award being far in excess of the limit of liability and the same having been fastened on the appellant company results in a miscarriage of justice and that this specific 9 contention was urged before the Commissioner for Workmen's Compensation by way of statement of objections as well as in evidence. Therefore, it would require this Court to consider the grounds urged in the appeal as well, in the present delay applications.
6. However, it is pointed out by the learned counsel for the respondent-claimants, who have entered caveat that the so- called objections taken before the Commissioner for Workmen's Compensation are routine objections viz., that there was an insurance policy and the insurance policy was in respect of a certain amount of money. There is no further statement that the insurer was not bound to satisfy any other liability. In any event, the award having been passed fastening the liability, albeit beyond the limited liability, it was incumbent on the appellant to challenge the same at the appropriate point of time. The inordinate delay being sought to be condoned, the explanation is with reference to establishment of a new 10 Divisional Office at Bijapur, as if would absolve the officers of Bijapur Divisional Office from their responsibility and duties, would not be available to appellant-company to urge and therefore, would submit that the applications seeking condonation of delay be rejected and that appeals also be rejected.
7. In the above facts and circumstances, in so far as the explanation offered for the delay is concerned, as already stated, the same is not tenable and cannot be accepted. In so far as the further contention that on merits, the appellant-company has a valid defence even if the liability had been mulcted on the appellant without reference to the actual terms and conditions of the policy and if the appellant were to make an attempt to seek recovery of the moneys, as contribution due from the insured, the same was time barred, by that token of reasoning, it cannot be said that the present appeals can be maintained. The Law of Limitation is not prescribed in order to be routinely 11 overlooked on the basis of the application such as the present. The reason assigned should be cogent and should appeal to the discretion of the Court. As already stated, the reasons asserted are not accepted. Accordingly, the applications are rejected. Consequently, the appeals fail and stand dismissed.
The respondent-claimants are permitted to withdraw the amount in deposit.
Sd/-
JUDGE nsp