The Section Officer vs Smt Parawwa on 21 April, 2011

[Cites 29, Cited by 1]

Karnataka High Court

The Section Officer vs Smt Parawwa on 21 April, 2011

Bench: Aravind Kumar

1

 

IN THE HIGH COURT 01:' KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 2131' DAY 01+' APR1L:_,2f_j(§1   _

BEFORE

THE HON'BLE MR. JUsTIcEVEARAwiN I3.Kiii»:A1§R
REGULAR FIRST  ~,N-0O"30V:0>1-'~ 'QI9%V1%%£éQ'19Eii? 55;} 
BETWEEN: .  i%   .... 

1 THE SECTION OFFICER, 
HESCOM LTD.,   :
MAMDAPUF;----»5913G''7;'''*Q " »   :.v
TALUK:  D=IS'If;: BELGA"U_E»'!-.."'f

2 THE A;   
0     
H73sC'c)MiLTD;;';'"  '- . 
GQKAK---59713Q7;T' _  --
DIST: BELGALTM. "  

3 THE EXECU.T1jVE~--.ENG1NEER (ELECL),
A HESCOM "Lf1_'Ij.,
V. 'O ;3:,1\»I..A_I)IVIS10--N; *
V ~ ,_ 'GHA§T_APRABHA~59 1321,
  ,' ''TAl.,UK:''GOKAK, DIST: BELGAUM.

. . APPELLANT S

 'Sri. BS. Kamate, Adv. ,)

  //RM/W mmmw



AND:

33,9

SMT. PARAWWA W/O HANAMATH SoNTANNAVg\Rg"*R._V

AGE: 41 YEARS, OCC: NIL,
R/O KALLOLI~591307,
TAL: GOKAK, DISTI«BELGAUM.

KUMARRAVINDRA,  jjjj  ._
S/O HANAMATH SONTANNAVAR,  j; 
AGE: 23 YEARS, occ: SERVICE, j "
R/Q KALLOLI~591307,  ._  "
TAL: GOKAK, DIST: BELGAUM. S

KUMARVIJAY,   _ 
S /0 HANAMATH SQNTADENAVAR, , 
AGE: 21 YEARS, occ: S.TU_D1ENT,"  ' _
R/O KALLOLI-591307,"-_  i 
TAL: G0KAK,'-D1ST;~'BELCQAUM;_ » =

   .

D/O I~IANAL"LéxTH~--SO1'»i'.i7, '**N¢w;xR; AGE;__2 1 1 V OCC; 'S'1'U._1:}EN?1', R/:0 K'ALL]0L1-Sj9'13otZ;' TAL: msﬂrz' ,_GAUM.

MUTT'E15PA4 S R S /0 KALIAPPA--.KU_LL~UR, AGE1:.33 YEARS, OCC: AGRI, 2 ._' R4/Q.,VNALLANATTE~591307, v. 3 'FAL:-QQKAK, DIST: BELGAUM. »' MALLAPPA KULLUR, " .. AGE: 51':'YEARS, occ: AGRI, ""R/<ég'NAL;LANAT11~5913o7, TAL: ' DIST: BELGAUM.

...RESPQNDENTS (By Sriyuths Sriharsh A Neelopant and SM. I-Iiremath, Advocates) /ﬂ %ﬂW /W for Rsg 4' claimed by Legal heirs of a deceased employee whoadied due to electrocution. Court. " _ ""l.l;ernployed as a lineman in Hubli Electricity Supply 017 This appeal is filed under Section 96 of CPC., against the Judgment and decree dated 10.9.3009 passed in O.S.No.269/2006 on the file of thei- Civil Judge (Sr.Dn.), Gokak, dismissing the suit _ damages. J" ' J This appeal having been judgment on 25-2-2011 coming on for Aproiniouncemeniiii1 of judgment, this day the Court delivered thepif0llo'w°ing:

J U _D G M_E;f;rp This is a defendants defendants 1 to 3 in o.s.No;2§ecs/2006p}; the:'i'i'lev.o1:;:lthe 1 Additional Civil Judge .c[ue'sti'onling the correctness and legzility of and decree passed in the said suitllonl lt.pO--l9v:2ClO9:_lldecieeing the suit for damages ' are referred to as per their rank in trial

3 One Sri.I-ianamanth Sontanavar, was g out cuttirrg third joint he is said to have and fell down from the pole after het' is said to have suffered severed grievous _i1ijurie5s over the entire body and had become unconscious after falling down and was shifted to the it Company (hereinafter referred to as HESCOM for brevity) and had been appointed on 1-44984. The Hanumanth Sontannavar while on duty on . at about 9.30 am. along with "

two others by name R.Y.Dyamakkago1, lineman hadgone areal to the land of one Sri.Karigar joint and to reconnect it to a engaging in the said work it no electrical POW" Supply fé'--:3i(1».€1illll\l7illage area from Gokak confirmation said Hanuma'nth.l_ said to have climbed the electric _pole"inV'i:he]_la11d'of Karigar and got two joints receiyingd~seiz'eral electrical shocks and on account of gift 'writteri' st-atevmentﬂami' also denied the plaint averments. ttradopted the statement filed by the 431 3""«.__a'ecident,__in question occurred on account of the negligent act of defendants 4 and 5 and it was 'tconétended that police had investigated into the alleged Hospital of Dr.M.G.Umarani in Gokak in a jeep and later on shifted to K.L.E.Hospia1, Belgaum for treatment and after three days i.e., _ to have succumbed to the said injuries. Q1" .,.. the death of the said Hanumanth :;Son.ftann'avarrT1./.:

sons and daughter filed seeking damages against defen.dants;"p' 2.2. On 1jeg:i'st.erin'gw summons was issued 3,. their written statemeVn'I':;"'e' to it of admitting the employefqand averments made in the plaint ca'me"to_be Defendant filed separate defendant...':t':Defendants Nos. 1 to 3 contended that 4%/"

é overt acts of defendants 4 and 5 and had submitted a charge sheet against them in the Criminal Court. '4 also contended that compassionate appointment _ given to the son of the deceased. ltwas crjntenldedwthat on account of illegal connection taken and 5 death was caused and.d'e.fendants ll from being absolved. Dzefendantsf and h'den.ied.i§all the averrnents made in the contended that suit is barred l V i it i of the parties, trial Cotiiit issties for its consideration:

(i) _ VWhrethe1'f--. plaintiffs prove that Hanarnanth has to electrocution and due to the .a4,a,..4V:n4e'gligenCe of all the defendants? lit) Whether the defendants No.1 to 3 prove that, the death of Hanamanth is due to the negligent act of defendants Nos.4 and 5'?

(§// for a sum of Rs. 15,51,379/-- and held that sum "% (1111) Whether the defendants No.4 and 5 pmve that, the suit is barred by Iimitation"?M__':4~ ~

(iv) Whether the plaintiffs are %¢riﬁt1eaesadddjef$r compensation of interest at 18% pe1fannum,"'a,s c1aj.;5;1ed'?' (V) What decreeor 0rde--1-*5? _ .... 2.4. The first d of the deceased and she also examined" Shankarayya and got marked -ljexgendants Nos. 1 to 3 examined :.':?~_1fi.~ Basai':.a1'aj.""--SLBadiger as D.W.1 and 4:13 defendiahta. got V'hf_:V1:1vse1f: examined as D.W.2 and one A'~._wi_t'11es's byhanae Shivaji R.Arabhavi was examined as a of defendants 4 and 5. On the basis d {of the44'1pzIe'a:diﬁvgs and evidence of the parties, trial Court dubjqui1ts,judgment and decree dated 10~9--2009 decreed W %/%//WWW/ IW/wm of Rs.3,38,880/-- deposited by defendants 1 to 3 before jurisdictional Workrnen Compensation COII1II1iSSi_Q}1:€3ITr1S to be deducted from the said amount of Rs. . and held that plaintiffs are _en.1:_1'_t1ed_--'"{;(§,----::/_a V"

compensation of Rs. 12,12,499/~ with interest at 6% p.a. frorhV._:t:i:.e deite. of the suit til} the date Of:'*S_fc?.i(\4%'LiT1()3.J.1\£[, The amount decreed also between the defendante 4 and 5 came to be and decree which , jappeal by defendants 1t03.

A ifleard Sri.'B';'S§Kamate, learned counsel for the Sri. Sriharsh A. Neelopant for res;$ei1de:r:teV"___§*' ie 3 and Sri.Ravi S.Baiikai for defendants

4. It is the contention of Mr.B.S.Ka1nate, counsel for the appellant that suit ~ maintainable and there was no dispute 'Au Hanumanth Sontannavar was an';en1_pioyee- _un_tier"

Corporation and thus there,:Vp:'p"was Ca, of "employer" and "employee" Abetufe-eln-»defendants} l to 3 on the one hand and and as such provisions of 1923 was applicable on account of the death of 'pSCoén_"tannavar, the employer was liablefor under Section 3 3 of the_Workinen.C'oInpei1sation Act,' 1923. He would thVat"-under"s'uh--section (2) of Section l9 Civil Courts = to try a dispute of a Workman whieitr it to be tried by the Workmerfs ""-Tiyj'"Cornpensvation Commissioner as per; Workmen's Conipeznsation Act. 1923 is barred and as such he 'subhiits that suit ought to have been dismissed rnaintainabie. He would also submit that certified (LC:

particularly when the plaintiffs have received the compensation deposited before the Commissioner_:bjf-the_ employer.

5. He would further 2 contending that pursuant to thepd'eposit,'v-iinade defendants 1 to 3 before jurisdictional by giving notice, the "for Compensation called of the deceased to and notice came to be issued" the plaintiffs and on receipt have appeared before the Cornmissionerrr for .Vp'V'Joi'},in1en's Compensation by submiiting an aprplicatien and thereafter an award came on 30~€««2004 for payment of EX_.D.4 which was in full and final d*sett1en1eri'tVofxfall claims pertaining to the deceased. As a trrould submit that suit subsequently filed was a W%ﬂ%WW%/WWW "adjud.ieate»d the elairriand as such claim for damages in maintainable.

lproeeeded' to decree the suit by considering the claim of plaintiffs as though it is a claim under Motor 11 copy of the application produced along with a memo before this Court on 2-2-2011 would go to show application had been made by the first ' 22-6~2004 to the Workmen's nu Division-I, Belgaum and she statement on the same materials as well as plaintiff that Commissioner for Belgaum passed award clearly go to show that themselves to the jurisdietioii for Workmen Compen:s'atio_nV the powers under provisions of V"Woi'k1'1*1eri'"s Compensation Act and He would further contend that trial Court has &,/ 13 .M.w,_'wﬁ , K. by contending that such a bar would be applicable only when there is a claim instituted either by the or the legal heirs of the deceased Workmen' * when they have instituted a ciairo; petitiuonvydébefore jurisdictional Workmen's Comperisation their suit for damages would bedajnd not otherwise. He Wouid__conte'nd':_in'the abse'nce"}of their instituting a claim Section 3(5) would not submit that agreement of Sub--section (5) of Section memorandum of «Section 28 of the Workmen Compe-nsatiori1Q2f3""and it is not the case of the it appellants herein ormdefendants 1 to 3 before the Court below th.at...ti1ere.:~*was any such agreement entered into i betyve.en,.__'dcceased workmen and the Corporation and submitstiiat said agreement if any had to be drawn as 'Forms 'K', 'L' and 'M' as provided under Rule 48 of it Workmen's Compensation Rules, 1924 and air it itieplositing the amount by defendants l to 3 before the %$/.

14 admittedly there was no such agreement entered "into between the employer and deceased employee the absence of any such agreement en..tered:T'. ' between them, the said provision: rnamelyél it Sub-section (5) of Section 3 would"'not.A_lg"et as such he would contend that__:co_ntention t_he*-illelarned counsel for appellant vregardi1'ig--A.i.jon'¢ maintaiiiability of the suit is liable to be rejlectede.

8. He 'his submissions by contendinlglthat made by defendants l to 3 the before Commissioner for Workm.e,n's is only to absolve themselves "or their liability underllthe Workmen's Compensation Act penal consequences and contends it that "thisV___v'dep~olsit does not prevent the plaintiffs' from :7'.i"rprospeeuting their claim in a Civil! Court against i defendants and he would also contend that this act of it ﬁ7v70rk1;}fleri.,"i3aV€; not instituted a claimzpetition before the from fi_ling~ Suit and seek darnaxges against the defendants :1 to 8 Corporation. He would also contend 'under Section 9 of the Code of Civil Procedure all rights of the parties are required to be adjudicated 15 Workmen's Compensation Commissi:oner would to show that they have admitted their lihbility. He' also contend that it is only on the notice * Commissioner for Workmen's of the deceased Workmen Commissioner and have which would Clearly go show' have not filed a claim petition either they sought for payment of "oﬂly in those circumstances gclaim petition and simultaneloiislyiiffiles:a for ages the jurisdiction of the Cittil Court sueholaim for damages would Abe and legal heirs of the deceased jn.ri'sdietioiial" Commissioner, it does not prohibit them Viyhat is claimed byithe plaintiffs. He the attention of the? Court to the if filed by defendants l to 3 to contend is no whisper made by the defendant as to of compensation to the plaintiffs was under the if nldworlnnen Compensation Act and would also draw the 16 v-».o-ma, é by a Civil Court and jurisdiction of Civil Court being Vast and expansive there is no prohibitionito try tlie_'jsui--t' for damages unless there is any express ' under any statute to adjudicate anysuoh

9. Mr.Sriharsh Neelopjianthglhx lea'rnet_l ioounsel appearing for respondents lgto also elaborate his submissions by Court was justified in applying liability and deoreeing the that trial Court can moiuldl'therv5relie'fJand.,:even'..tholugh the plaintiffs had claimed prohibition for the Civil Court to the and gran'? a judgment and aw 17 attention of the Court to the evidence 0% D.W.1 wherein the witness examined by the Corporation that plaintiffs had not filed a claim petition:;4"ti5efd1fe.a:'tii:e"' V' Commissioner for Workmen Compeiisatio-in" V' he would contend that trial decreeing the suit. On sdfor defendants 1 to 4 would.'seek...f0'1=.disti1issa1deftheéappeal and prays for affirming decree passed by the trial Cotirt; fln ofsgjbhnission he has relied upon V 1 %'(;_9*7'6)iV";4;[sj;= .13e1§)I3}AY LAW REPQRTERS 337 Nepalese Fefnettides vs The Unicfn of India [($091) ACJ 253 E ' and others vs', Gtgarat Electricity _ and another (1988)ACJ 251 'A Managing Director, Karnatakag Power Corpn. Ltd., us Geetha and others ' er"

{L8 (2004) II ACC 332 New India Assurance Co. Ltd., 3 Sinha and Ors.

(2001)ACJ 253 V J _ Jasuben Wid./O {).e1{¢'h:;fzd_bhai" 'PQ;ITIT."§lClI" us Gngarat EleCtr.z'ki'ity 'Bo.:jtrd" '*- .. ' ' % "

(14589) % J _Vi_rnal vs. Mansharam Sharma cifzdvOth€_a.?ré*--._ (3g966) AIR PATNA 130 India vs Satyabati and others (2007) (2) AIR KAR 6 H Borawwa w/0 Mallappo: Guggari & Am'. Vs Kamataka Power Transmission Corporation Ltd. & Ors. , %r/ /ﬂ!!' mwm:9 10 11 12 43 (2009) P 3.: H 27 Paranyit Kaur & Ors. US State of Ors.

(2oo3)(1)KLJ5o1j f~.% % S Vyayalqkshmi... '=._dn_d "'Ofher,.§ vs BhashkaraVc:hcVii*c1r'&;:¢l AIR (2903) SC; 674= f% x % Singh and Others ,_I\?ew'India.A's.§iLr:ince Company vs Rattu Devi Eznders-. X 1966 so 1861 ..Bié:i;i§&t Singh and others vs Jaswant Singh 16 AIR 198'? SC 2179 Vzinod KLUTICU' Arora vs Sm: Swjziz': Kaur AIR 1993 KAR 29 22/ W mﬂm% /////2///mmr the judgment and decree passed and would contend that trial Court _Vwas"j'ustified:"'in applying the principle of strict liability event of there being no institution of a claim as contemplated under Section 10 read with "Section 22 of the Workmen Compensation Act the trial go K Shivalingaiah vs B.V. Chandrashekara Gowda and others 17 AIR 2009 RAJ 122 Deen Dayal vs Saryeev Kurnar " ' 18 AIR 1995P&H29oo*sio p J Gurunanak ;..Educqii9n"pv-Trust .(Regd. 1,, E Model Town, Ludh'id§"1a ._vs Sh. Balbir SiI19h,C1r1d0tA7ll.eff§_V 1 ' it 19 A .... LR's.

appearing on behalf of defendants 6 namely respondents 5 and 6 in this %/ 253, Court was justified in decreeing the suit as prayed for. Accordingly, he would submit that trial Coutt..VVwias_ Correct in dismissing the suit against defendarts' _ 5 and prays for confirmation of thehjsaxiie. 'V ' 1 1. Having heard the 1earned:.«ad§oeates :;__:

for the parties following would consideration. ....

(1) Whether Citiil _not have jurisdiction to ';i1d:"'qi1estion filed by' ingéiewi 'oﬁvsection 19(2) of the i57c;fkﬁi:.e:i§"s;'.s;eeiziperisation Act, 1 923?

. . ' . ~. . .

WtiVetf1é;».'L'a "damages in tort filed by 1ega1"iieirs"'--Qf the deceased workman was ' * maintairiabile . after receiving the eeinpeiisatidon amount deposited by the before the jurisdictional workmen 'V ' 'd--e_oii::15ensation in View of Section 3 (5) of the ' W':C.Act?

it Whether the judgment and decree passed by the traii Court is contrary to evidence on are W %/ ﬂ2'!' /m9mm-

was stopped and after ensuring the same said 43/ 2:142 record and calls for interference in this appeal .

(iii) What order?

BRIEF BACKGROUND OF THE ;;

12. Parties are referred,»to.___e1s ;$e.{};1a.¢1r ttgieii. Court. Plaintiff No.1 is the 4 are the children of Sontannavar. 'IftV:.e' said ":Sontannava:r was appointedii. at on 1-4-1984. On : V a.m. abovesaid Sri.Han'u manth"'V'= along with Sriyuths H.B . HUSSE1tiﬂ kh.aﬁ ; it Rffotiavekar, R.Y.Dyamakkago1 to E§e'eragadi area wherein the land of one iet.&:"s'itf;1ated to disconnect the cut-point and to.';eeonnee3:t'j_».it to a new line. In order to execute the 'said wofk Sriﬁanamanth Sontanavar and others L " that Electric power supply from Gokak Section mmmm~mmm/ 'd V. "on vgfiifted for iiirtiier treatment to KLE Hospital, he is said to have succumbed to the e514. On Verification by the other linemen it was ~~f<iund that cause of accident was on account of @325 Sri.Hanamanth Soritanavar is said to have claimed the pole and other three persons were standing ori ground watching the Work being executed'_;''by«' '4 Sri.Har1urnarith sontarinavar. It hixyas "

Sri.Har1umar1th Sontannavar had'-, eu i5'«vo'ea . 'V :;_ it while he was cutting a screamed aloud and fell to 'tori: of receiving several e1ectrioai.*si::ove{k:ésh hand and he had suffered grievous body and became d V it was shifted to Dr.M._G_.Uniarani. Hospitaiddd at Gokak in a jeep and later injdu~r_iesV_ my 3-2004.

%// A?§T1ClV'i2Vas"'in the process of lifting Wvater and feeded from the Starter box of the ._ ﬂelectiiilcalav~:noi:or installed in the lands of defendants 4 sitiiated within an Nallanatti area was having J'ele_ctricity on account of which it ﬂowed to the pole T ..'_4"w-lrere the said Sriﬁanumanth Sontanavar was 9%' electrical motor functioning in the lands of defendants 4 and 5 which was engaged in the process of lifting' from Ghataprabha river. The electric . said electrical motor was taken from_anothe'r '4 motor installed in other land of situated within Melevanki andl'it:.th;atv defendants 4 and 5 has thronghliphase service wire illegally It was contended in Sontanavar was reconnection of the line in pole in question is situated ix'-.an«d,' motor installed in the Nal121T1a,'§ti area_Vi.e(V,Kin"vthe"llands of defendants 4 and 5 €25'?//' 25 working. Defendants 4 and 5 were prosecuted C.C.No.282/2005 by the Additional JMFC, Gok they were convicted for an offence . Section 304A {PC and were directed a.to,__1;nd_e'r"g'o' period of six months. The said judgme'f1t~"dand. ::jf and sentence came to be " 4 and 5 in Criminal Aopeal Fast Track Court I and Belgaum who by order the appeal and set asideéddttte. and sentence passed _' 145, Inxordero'5-tolexamine point 1 it would be Vrrecess»_-£33;--. {Q extract relevant provisions of the Vv?or&;rtier1E-:.,_AC§or;n;;§kr:nsation Act, Rules framed thereunder ' prese'-ed irrto_¥e§.erviee as also Section 9 of Civil Procedure 29 SECTION 9 OF CIVIL PROCEDURE CODE

9. Courts to try all civil suits un1ess{r'»r. barred.- The Courts shall (subject provisions herein Contained) have jurisdietior§%'.":hr:""= to try all suits of a civil nature.,re::cepiih'g'* of which their cognizance is eithoeprv expre'ss1y.'»'vw-.__ .' or impliedly barred.

Explanation 1.-- A »-in to property or to an office.-is::Cor1t.ester1"is.a,,s?ait of a civil nature; that such right may dependpA_A.eIrt_ireljr_V o>r1*:VV.ClVe{:ision of questions; religioirs rites or .l3§femonies. purposes of this seeti.on__y";;j;mma:eVria}.._whether or not any fees office referred to in Exp'lar1atpioi1.'_.l' or not such office is attached to-appartzieular place.) "

5I'_Worlir:oeil's:'Con1pensation Act 1923:

" .33; Employer's liability for pcoxlaaiaensation. (1) If personal injury is v.l:pe}:1used {an employee} by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation are /J5!' mWWm EFF in accordance with the provisions of this Chapter:

Provided that the employer shall not be ~ H (2) XXXX (2A)XXXX ,,,, (3) xxxx (4) xxxx (5) Nothing herein contained:

to confer any righi to ppcemperisiation' employee) in respecrof:-_ if he has instituted in_a Civil 'i'o_1:.._§1amages in respect :i._nju>1-*y: employer or for damages by -.(.an. employee) in any Co1._1rt._ of 'iﬁes any injury hula} _ instituted a claim to eoriipensation in respect of the __ V __ A'irijr,1ry«"before a Commissioner; or if an agreement has been come to Z ' v)V.l'V:'v~-bzetween the (employee) and his T employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act. a/3) W/WW/W/ﬂ' ﬂ Q8

19. Reference to Commissioners.___(1) If any question arises in any proceedings underfr'»l.

this Act as to the liability of any person compensation (including any question--as whether a person injured i_s....,o__r employee) or as to the amount f compensation (including_anyl'q.iiestion»"..1:,aslto " l the nature or extent question shall, in. default»"'a.green1en,t,,_.l)e settled by (a Comn'1izs'sioi3.er{3';it > (2) No CiVi1As»_»Court...sshall to settle, deeide. which is by to be settled, decided dea,_lt_ _C_O§fI1II1iSSiOI1€I' or to enforoe.any1iabilit3r_ine"urred under this Act. Re"gistrat~ioi;._ agreements._(l) 'Where __:'an_1ount' «o_f__i.any lump sum payable as edonipensation has been settled by agreement way of redemption of a half--

A' i-..tnon'thIy:-bpayinent or otherwise, or where any compensation has been so settled as being °'3oayable (to a Woman, or a person under a legal disability) a memorandum thereof shall be sent by the employer to the Commissioner, 7 2'?

who shall, on being satisfied as to its genuineness, record the memorandum in a{ register in the prescribed manner:

Provided that--

(a) no such memorandum shall be.'re(:or_ded. _ before seven days after eo.mrjni1nieation:' f by the Commissioner of notice the parties concerned; p T' K (C) the Commissioner_....rr1ay 'gat .aI'1y.__A_Aptirbe rectify the ' " 'T _

(d) where__it appears» thc3'~~.C'on;-nxissioner that 'aaiagreernent 'payment of

3.; by way of .... payment _ agreement as to the Aofddeorripdensation payable, (to a or,» person under a legal _ d_isab'ﬂity_)___.ought not to be registered by of the inadequacy of the sum or or by reason of the agreement S been obtained by fraud or undue 2 inﬂuence or other improper means, he may refuse to record the memorandum of the agreement (and may make such order), including an order as to any sum %K J???' W7 :r')C:'» already paid under the agreement, as he thinks just in the circumstances.

(2) An agreement for the compensation which has been reg-'ii:s'teVred'r-ll') under sub--section (1) sha_l_l....b_e under this Act notwithstanding contained in the Indian Contra_ct~Aot,_ (9 of 1872), or in any other"l.aW, for vtli-e_lt1m_"e in force.

29. Effect' l ---- register agreement;;.~ of any agreeméent-.V of which is req11.ired..(:Vby'1~1sectioniyl289.18.»; not sent to the by that section, the employer to pay the full amount of cornpensat-ion which he is liable to pay the" «provisions of this Act, and jvnotwithistanding anything contained in the to."'sub~section (1) of section4, shall A»..(not,~_t1j'n1ess the Commissioner otherwise dirpeets, be entitled to deduct more than half of it "any amount paid to the (employee) by way of compensation whether under the agreement or otherwise.

§ Workmen's Compensation Rules, 1924:

48. Form of Memorandum: Memorandunl agreement sent to the Commissioner-zf:under'~it sub-section (1) of section 28 shall, eun1eeeisC Commissioner otherwise direr:ztis,'--ee, b.e"= C duplicate,, and shall be in as'elo'se conl.orrni'ty as the circumstances oiitlie case 'admit Form K or Form Igor FQI-'l'~I)_lV.f., as the 'ease niay be.

16. Seeti_on::19' of Court to try all suits of suits, the cognizance of which areii ie§<'pV1'«e_:ssly'«ofimpliedly barred. Civil Court would notabe ventitieid» the subject matter over whicgli 'it. has" -no jurisdiction. A bar on exclusive Court should not be readily inferred.

it would be of benefit to extract the ' V Vfollou?in"g'v.Judgments:

Iii)" "v.AIil 1970 so 1298 - The State of West Bengal Vs A _ d The Indian Iron and Steel Co. Ltd., $// Z52» "Mr.Chagla next assailed the cesses imposed on another ground. He contended that in vieigdf-,g of the decision of this Court in Tata Iron Steel Company's case it was not open assessing authority to Value the coal s_u?pplie'dcj"'*---i to the factories and worlszshopsm at 'the controlled rate; he should have as sliggested in that decision disintegrated the ultirriate.'_ApVrofits__ V earned and found out the profit__e'arned_'hy mine. We are of the opinion. that"--3'A»it" is 7;

impermissible for us to -into tliatq-.uesti*on"ir1" these proceedings. The liability to --pay" is one thing and mode of cornputation of'theVnet profits is anothei*...4_'"fhe frno,-:!e' 'ofeornputation is a matter for the ass:essi.r;7g;' authorities except where the computation is d_one.»inv--lyiolation of any proVis.i~on--»_of law? there'was":any mistake in the cgdrnpgutation, 1t_h8.li__}7|3iS'tJ.ké'V'ShOuld have been got Vpi*ec"'ti'i§ied"-lrjiy "'fo_llo\i2vipng' the procedure prescribed-1. :'j_1f1 the If} the respondent cornpany') was aggrieved "by the mode of cornputation--«».__p"adoptedi «by the assessing authority, it sliou'id_liaﬁie agitated that question firstly before 'that""--..authority and thereafter before tl<1e"appe1late' "authority. Having not done "So, the company cannot be permitted to raise '- ...that» question inthe present suit; otherwise the ., finaiityiconteinplated by Section 102 of the Act 'o_ec_oi.ne illusory. It is true, as observed 2 "by Lor_d_'i?hankerton in Secy. of State V. Mask ' »..4and.-Co'.;/A67 Ind App 222 = (AIR 1940 PC 105) th.at.tVit"' is settled law that the exclusion of jurivsiiiction of a civil court is not to be readily it "l";'ngferred but that such exclusion must either " -he explicitly expressed or clearly implied. It is also well settled as observed by his Lordship that even if the jurisdiction is so excluded, the 3?"

% ///////////W/ﬂ/' 53> civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal», has not acted in conformity with,...._jth.e' .. fundamental principles of judicial procedure§'g:'*- A In the present case what is contendedis u that any provision in the Act, had been'igniored., V by the assessing authority but that S_eeti'o.r1"7 thereof has not been properly::_interpre'tQq that authority. If the provisions of the Act.forIn if a precise, se1f~containe'd-code, as we hol,d'th'em to be, the assessee cannot be perrnittecii to challenge the levy on the"g.rou'nd that"the..~levy imposed on hir'n__ 7exc.es's'i.ve_,"'«.1t must be remembered that the unider. the Act is imposed by a special 'law "v'vhi'c--h;- 'law also provides ,its own} rem_fedies'~,fo_r "correcting the errors that be.c"o.m1'nittwed bythe assessing authorityﬁ. Where'---.jg"*-a""-- .__liabi,1ity' not existing previously--is_:created"by aiistaytute which statute at'"'the. time" provides a special or particular"'rern'edy-._for__ correcting any mistake that may V .. its enforcement the aggrieved vpartyim-ust. adopt the form of remedy given by the 'statute and no other. In ..{iDhu~l.abhai"r.rs. State of Madhya Pradesh, (1968)

- SCR'"562=(AI'R' 1969 SC 78) our present Chief _Ju.,stice.,s*peaking for the Court has formulated if "ci1=cu~mstances under which the A "jurisdiction of the civil court can be invoked in '--.._thev~1naft'ter of a levy of tax. Therein this Court hasalaid down that where the statute gives a n T finality to the orders of the special tribunals, V the civil courts jurisdiction must be held to be excluded, if there is adequate remedy to do what the civil court would normally do in a suit. It is further laid down in that case that We

(ii) 535% questions of the correctness of the assessment apart from their constitutionality are for thje"--.r decision of the authorities and a civil suit doe_s~,_ not lie if the orders of the 61l1thOI'lt},r....:'c_'iI'.E._.3:i' A _e'};pres:':~i."' 8' ' "

declared final or there is an A r prohibition under the particular Act. We"d.o'n.:ot4 think that the civil courts h.ave__.juri'sdictidn to examine the correctness of the ¢o1nput::uon.oi the net profits made by the"i«authoritie-srunder'L"«fl-A the Act.

AIR 1966 MYSORE 1&7-8' 8:.'-AlfSint.Lalithamrna Vs R.Kannan A Z A if 'V A "Although majority of"~7casesj,' the place of solemnirzation' _c-anlbc. loc_a.ted' in""s'ome part of the Unionzfof :._["nd'i'a'-..ir1"re-Sp--e.ct, or which a Civil Court functioning 1ur1dcr'th'e--'Co_de of Civil Procedure may bevl'eXei*cisiing "f:ie'i*ritorial ju_ri'sdiction, the possibility of'-.the_ said-"placer fallingoutside the jurisdiction of any, one of cannot be wholly disco'unted.°' Even otherwise, that no difference in the approach ";-its"elf"'is called for a clear from the decision o'f"the Supreme Court cited above. That . -__cas.e: dealt vvitlfa provision of law which clearly : 2 ., provide.d' . for 'V _ a.juri:sdiction_;.~ a plurality of courts having V V Nevertheless, their Lordships 'proceeding on the basis that a party in such a l=..case- hafsl the liberty of choosing one among the serverrall forums provided by the statute, pointed outvthat the matter should be looked upon from the point of View of the context and purposes of ' the particular statute.

Dealing with 8488(8) of the Code of Criminal Procedure, their Lordships pointed out that the circumstances of materiality ax ' V' 'and"find..j-out nwhethersuch exclusion clause is found in if the answer is in affirmative then answer isfin negative civil courts jurisdiction would be available for being invoked. %/ ':56 were the anxiety of the law to minimise as far as possible the difficulties of a discarded wifeV--"who may be in a helpless position. We do no_t..th.inl+:

that it can be contended that such Q.1f.__sirnilar'~ V. considerations are not available in the»:case'.'.of.fav..._ ' . wife seeking divorce on the ground set out i'n=sub¥ -- section (2) of Section 13 of the..IfI_indu'M'arr_iageAct»V A' as in this case. Further, 'gthie -- considerations applicable 'in 1'_cases'~_where -'t--he?]:

existence of jurisdiction 'inwa court" is in question are genera11y""-'those Vwhich 'to resolve the doubt in faimur of the uexistyence of jurisdiction rather than----it's. absenclehecause of the fundamental.__principlepithet"it is the duty of courts to grant the"re!.ief»' sought' -of them and not lightlypoabdicate the. jurisdiction which may be clearly-yestegd in_f,tl14e1n'_--.by the law for the purpose ?_of gra11ti~ng any such" relief ' . Thus, iVtV"é1"V11€l'.:g€S'V.: i7i'orn*.,tlie that plea regarding exclusion of ciVil'«..'lc4ourt.s'~.jiJ-risdiction will have to be examined referei1ce""'lto that particular enactment civil-.cou_rts:jurisdiction would be excluded and if the CSQ

17. It would also be of relevance to extract Judgment of Hon'ble Supreme Court in the Dhulabhai etc., Vs State of Madhya Prades_h:.:lan:d-. .

reported in AIR 1969 SC 78 whereiseven uh' law regarding exclusion ofjurisdic:tiori'_"of'lvCivil been laid down by Hon'ble "as under:

(1) VVhere the statute._give.s a fi"nali'ty'-- to the orders of the-_s'peci§al ,'l_"r'iburi,a'l._V the civil courts jurisd§_ctieii_.rnu.st be __he1d be excluded if there is-~.ade'quate.._rcrnedy to do what the civil Cou1*ts"'-vroulci 'normally do in a civil Court.

"Suchsoprovfigsion,ihowever, does not exclude 1'-ithose V' where- 3 the provisions of the 'particular"Act"have not been complied with or the statutory » tribunal has not acted in V. _confor1Vnit.y';-wi'ththe fundamental principles of y, judicial procedure.

. _(f./,}_Where~-, there is an express bar of the 'V jurisdiction of the court, an examination of the ' scheme' of the particular Act to find the aideqjuacy or the sufficiency of the remedies .. provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the ' examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the 4/ Wliere "" "particular Act contains no (6).. Questions of the correctness of the assessment A decision of the authorities and a civil suit does 3?

inquiry may be decisive. In the latter case __it is necessary to see if the statute creates a special right or a liability and provides for, determination of the right or liabilityV.__ari:.l_"

further lays down that all questionsfélboutvv[the'"': ' said right and liability shall be d.€.termi1'1edo_by"' the tribunals so constituted, .'and'--vvl1etherli'v.. remedies normally asso(:iatedgtwi'th" actions in.' civil courts are prescribed by the said ,vstatutev"~.

or not. V I i (3) Challenge to the provisions of theparticular Act as ultra vires. canriot brought" before Tribunals COnS'£_it:r--1t€tt7l u;nder_'th'at_Act. Even the High Court cannot' go-.Vin.'to_.ytiiat. "question on a revision or reference from lthepdecision of the Tribunagza ' i f (4) When "'3'-pro'vI1jsiAon__ already declared uncons'titutioi1_al or the constitutionality of any V'lpr"ovisi:)n is'; to bechallenged, a suit is open. A of "C-.ertiorariV"may include a direction for refund if claiin «is clearly within the time prescribed by the:-Limitation Act but it is not a _ _comp'ulsory'- remedy to replace a suit.

rnalchiizery for refund of tax collected in excess * of-.._con'stitutional limits or illegally collected, a ' Sultvfliets.

apart from its constitutionality are for the ' not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. ln either case 4&/ 3% the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion ofjurisdietion of the "

not readily to be inferred unless 1 * above set down apply.

A similar issue namely as to Whethe;fSeetions. 21 of Minimum Wages Act Of Civil Court when its and its extension to eertain"el_asl\s*.v.,ol ipveame up for Consideration in the case of The Vs The Deputy laniolllothers, reported in AIR 1968 sC'e271landVlw%agt under:

"There early be no question in this case that " t,h.e"'lMinim1ifn Wages Act cuts across the eont3jae.t__ between the employer and the einpioyiee: and wherever applicable the efriployef is obliged to pay the minimum or take consequences of failure to pay 1 'V H Any employee who feels himself T aggrieved by the refusal of the employer to " pay the minimum wages fixed under the Act has the right to make a complaint either by himself or though the prescribed agents to the Authority mentioned in the Act. Under er"

re {u/Vk sub-section (3) of 320, the Authority has to hear the applicant and the employer or give.» them an opportunity of being heard _and.._ could straightway give a directio_n__' V. regards the alleged non--payment ,-of the-..p A minimum rates of wages and"-._ such " T _ compensation as he thinl«_:s..fit not leiiceeidirigil V ten times the amount off the'exCess_ -of the A minimum wages over that which .pai(i."\~it,,,, it It is true that the sub;sectionl"provigdes.for al}; 3 further inquiry but inqu.iry- is to'be"'at the discretion of the a'u_thority.l"'~'._I'he'nature and scope of the inquiry-.vVe.uld depend" on the exact contro"V.ersy raiV"se.d»iri«.the case. If it be of a trivial _iria':;uf63,»; thfﬁtribunal can probably deal it in stliinniiary manner, but Where-.i_t al1eged¢tt~h_a.t the "notification underi is hot applicable to a certain class' ef ""wt3__r_kers_ the duty of the authiorit}-:"r;_, to 'give'=Ia~ proper hearing to the vApa1ae,é<:, _th.,eif11"' to tender such ﬂevidencve. they_gthti_nk:.'-- proper before making and ._ord.er'»"which'--.,4iinay have far-reaching consequences. .-- ii-'he authority in this case _ instead' -of-. recording any evidence and l'properl'y...heari:1g the matter, disposed of it a~..perfunc"tory manner which could hardly . ' «hailed a hearing. As a matter of fact, the _in_quiry which took place in this ease = was-.a";Very informal one in the premises of the_l§oom~Dooma Club for the space of half an hour or so when the Authority had a talk the managers of the tea estates. There is no provision for appeal er revision against the direction of the Authority although he may levy a penalty to the extent of ten times the amount by which the minimum wages 6%/t notice' the proifision of Subsection (5) of Section 3 and of Section 19 of Work1nen's AVE overtop the payment actually made. Whatever he says is the final word on the--___ subject. All this can but lead to conclusion that 8.20 was not aimedﬂlat putting a seal on the adjudicationif under it. It was to be of a nature.__whjich' % suited the discretion of themofficer.concerned" _ although he was given the powers of ci_v.il"' court in certain respec.ts.if"<In'»._such situation, it is irnpossible "-to ho11s'3.A'tlr;at'=-o the Legislature nxeant to Ve:sc1ude.._*t-he' jurisdiction of civil courts to" ~go'=i-ntolﬁthe question of Jnon-payrn'ent_. of irnininzium wages c1aimecl"'~as .'fin_al".-. .In~--_our opinion, sub~s.(6) of S20'-n;ef:'el:y that the discretion of the Authority' 'c~ojt1ld not be questioned_ under pi?oyisiCzn" of the Act. It does ﬁnot _exclude_" the " jurisdiction of the "ci'_vil'*-court_V:-when'_ thechallenge is as to the :japplicab_ilityt oi' the Act to a 'certain class "of"workers'"".

18. -t.his* iivould be advantageous to 1923.

".3";VEIniJloyer's liability for compensation. (3) XXXXX

--. _ Reference to Commissioners.

Civil Court shall have jurisdiction to (lei (4) XXX:2Q< l (5) Nothing herein contained shall be deemed to confer any right to compensation'.'§,;ﬁV~~{éd~,oi, employee) in respect of any injuryjf ' instituted in a Civil; ,))C'ourt_--"a"'*-- for it damages in respect of the T.) o employer or any other 'person; anddjinoi' for damages shall' employee) in.' _ it

(a) if he"«-...l1as'i-_p a claim to _compen,s:ation_V the injury ' a or has been come to .... (employee) and his 1 it -e_rr1ploy_er.._proViding for the payment of ' in respect of the injury " .in--. accordance with the provisions of V " Act.

settled, decide or deal with any question which is by or under this Act required to be settled, decided or deait with by a 45/) V"-As;othrer'wise;«»l.the_ jurisdiction of Civil Court does not get 'e;§<amineVs<:ope of Section 19 of Workmen Compensation ri:923. Subsection (2) of Section 19 bar the

--.."V'j'uri?sdiction of Civil Court to examine and deal with 42 Commissioner or to enforce any liability incurred under this Act."

From combined reading of these two _ pp .9 emerge that a suit before majntainable under two eventualitiesiriamelyzi C (1) If the injured has compensation sustained by filing .a if Vrbvefﬁore the , 2 (2) If employee and employerldfoij-., 'of compensation in respec't.._of.V payment in accordance V vézithii provisio-nsof the Act. exclndedn this juncture it would be of relevance to E +/, ':t3 any question which is required to be dealt by --the Workmen's Compensation Commissioner as requv-i.1fTed_lto be dealt by Commissioner. Said . contemplates that no Civil Court _shall 'have' it C' to settle, decide or deal with or under this Act required -..s,yettle'd,:_ "

with by the Commissioner .l yénforcel' any. liability incurred under this by the Civil Court he matters as enumerated They are settling decidingllof question and enforcing any Thus two requirements Which.needs' be'.'satisfi'e~:l by the Commissioner to act ' V""tind'e.1f:'tl1e.ji'£€.tarea' """

ii) must sacrifice or forego their right ~ uiider the common law.

, _ 1 The facts giving jurisdiction to the Commissioner to decide and settle such 4'/, m'¢mwmv it is clear and unambiguous of Commissioner under Section 20 of it the to claims is with 'a View to provide a distinct forum other than the civil Court ll"ior_lti1c.l"purpose enumerated in Section 19 of the Act and it the same time keep open the jurisdiction of Civil 44 disputes as they would come withinpthe ambit of the Act must also exist side ._' When these two conditions are strictly ' would bar the jurisdiction of civil.' it aspects, namely settling, decidingh'an'd_V question involved in the and scheme of this pro-vision..lwouldllnott tal{e'"away from the civil Court its in part, but to provide alternate. certain classes of person and for certain events occurrin.g . "3:fIs'i1us,..p"WhenV'holistic View is taken it is found from the'scheine"'»of"Workmen's Compensation Act, the barkcrieated on the doctrine of estoppel st"

'VWM r ' loss which the relatives have being a piece of V social security i _legisl*-ation' any provision of the Act is capable of it interpretations, it ought to be construed liberally in e.fa'vot1r'Aof employee in order to achieve the objective of 45 um Court to adjudicate and determine the liability in__tort and same is not barred.

19. The Workmens Corrip'en4sation_r' enacted to provide a separate, to a Workmen or his compensation and forfthat are Vested with the with the adjudication of a special type of liability compensation at the fixed rate _veni;ploy:ee;," who is rendered incapable of working to arising; out of and in the course-of employrnent.'- The purpose of the legislation is %/ V' 'ts1tatu--t}¥:- ..sett1eiiiéﬁt of dispute eivtl Court is a long drawn process particularly because 46 the Act for Whose benefit the Legislature in its Wisdorn had enacted this special legislation.

20. In the backdrop of these»c.ircu'msta1ices' i,tf;.isV.. necessary to consider the intentioh of the creating such separate/spec--i.,al~..%forum '*eriactir1g a V special statute for settlement' the scheme of the statutes. that civil Court powers to settle all arrdV'admittedly they are under Court. If that is so, it is legislature thought fit to createan alt'er_r1ate" by enacting a special Act or § I and ousting the Court. It is in this background the l _ of special legislation', the purpose with " legislated and required to be achieved is to ctmlsidered. The settlement of dispute before regular aw 47 of the hierarchy of courts provided under the code of Civil Procedure. The order or decision wliether interlocutory or final is always subject to ' revision and as such it would take: r*ea.sonablylllong ltirrjief. The workmen though is entitled lliis damages in respect of injuriesjsustaginegd the legal heirs of deceased a Court by filing a civil suit, settlenie.nt of would quiet naturally legislature in its wisdom separate speedy, cheap his dependants for settlemelntploif and thus created a special legislation VWor'K1n"en's Comppnsation Act, 1923. l.'l'-hus; th5ei'Aintentionloflthe legislature is not to take away the the civil Court and for the limited i .

purpnse {of Qseti"/ling, deciding and dealing which are ll"':?".lA"=.e§;p1jessly=---- enumerated in subsection (2) of Section 19 jurisdiction of the Civil Court is excluded. to the person entitled to seek V".to.i~~choose the forum namely Whether he 'Would: sevelr. available under common law or provisions of Workmen Compensation Act. words used in a statute there is doubt about C ..'_ftheir meaning are to be understood in the sense best 49 *~....»o e , e 2 clearly go to show that it does not take away jurisdiction of Civil Court to grant relief in tort since sub of Section 3 indicates that workmen has . compensation either under or can take recourse before Where death occurs compensation by legal heirs under common law such party would Venvtitleid::'to_:cl:aAfirrl'acompensation under either of «i'he:~.1avGs n'ot'"ujnderVf'both. Embargo would surface _,under. 24"'e37.eVr1tuali'ties Viz., (i) if a claim petitionihnasia instituted (ii) if there is agreement betweeiﬁ.fleinj5loyer angk employee" to go before. _Worl{:in_en'sF Coiripensation Commissioner as 05/ ...... .. . . . . . . .. __ H 51 i.

i adjudicated by taking note of following chronoiogieal events.

5 DATE DETAILS/PARTICII2I:§jz%I_{§0.::' 11.03.2004 Eleetrocutiorigiitookrj)3.aee§ ' 2 W 14.03.2004 Death of .2 Sontannav4ar..e V 10.06.2004 V .de1lna1ad'..'draft'fo--r ,?3j;38,88o/-- Notice ddissuegi «-t_0 E the Cornmissioheifv "for Workmen Com,ﬁ?'er1s_at:;on by VVHESCOM under Section' "-V85) Workmen Compensation Acti7":.vinc1uding a 17.06.2004 % Q i for "'JVOri<:mer1,: 'Compensation to i 51.; .0 the °vi_ife _tii:_¢:1ec.eased Hanmanth. .Notice'1~._Viss3aed by Commissioner ?"fjAppiic_ation filed by legal v .A'reprecsent'atives ; of ' .Har1n_1arriih for payment. 3o.soe.2roo4_ deceased 30.06.32.904 " " ~ 7'Har1manth recorded.

Sta"ternent of wife of deceased "Demand Draft for ?'2,88,880/-- paid. Wife of deceased and balance ?5O,0OO/-0 was ordered to be kept in Fixed Deposit.

* 28. 09.205205 0 Suit in 0.3269/2006 fiied by legal representatives of deceased Hanmanth seeking award of damages by way! 501" compensation of 30,00,000/--':with interest at 18% pa.

#2 W ﬂﬂ 1989 ACJ 79 as under:

52

24. The words used in sub section (5) of section Workmen's Compensation Act, 1.63., in clause (a)..isj instituted a claim". At this juncture 3 necessary to examine the word "Instit1;4ted"'__ j clause (a) of subsection (5) of ._Sectiot1""8 setting on foot an enquiry. If a claim petition and witbéifaxwis the erlquiry started, it cannot be cons.tr1.tejel. Institute means to to begin or commencéiilerxt _:t:t:vV:Vo;'iVtett111stances where through by Commissioner, claimants «Were _ about deposit made by ..emp1oye!r'Vtt.was Court of Madhya Pradesh jgdgement of this Court in Karnataka held by a Division Bench of High 'Court .. Pradesh in the ease of Vimai and L 4-Vs." Mansharam Sharma: and others reported ex"

53

"The question, as we haxle said earlier, is one of election which can be done initiation of proceedings in either of the_;:4*'tV*N0l,"

forums. Where, however, the initiate proceedings only in *9» exercise their option and takeiéin :el=eetior1_::_tlf)t1t ' V a certain amount is maderayailablie"'toAg:the'1<n"' although through _____ Commissioner, worl{1ne1~i's;;_Co1n_pensation, it Cannot be said that have been initj.ai'ed'_:. by}: other forumsiasl' __ _ Thus, plain-tiffs""i:.1:'~- case by receiving the money dep_o"s3'_teVd _ the employer, through 4_...Commi-ssioner for oVW_o:'kmen it cannot be held or hepo.-n;_str.ned_v'as'elairnants had elected the forum under the Worknrenly *s'V.'jQoinpensation Act. The; application dated .;snl)mitted by the Wife of deceased before the L C§o--:nniissioner for Workmen Compensation which has ..._"Vbeer%1 made available by the learned counsel for the ; ~ \ ,5?' .e_..

.Kﬂ*w"'W 54 I .2; .

pp Corporation by filing a memo on 2--2--2(§l 1 would alsogo to ShOW that that she has only sought for the said amount since a notice came to be issued " ' Workmen's Compensation Commis»sior1er..'l Hence; cannot also be held that claimant by approaching the Commissioner and had :--'forgoi1e"' fright C to "approach Civil Court and as sucld Section 3(5) would apply 1_j_'-ltlieilpf"claimants to approach of Section 19 eXc1udes:'the" to settle, decide or deal xxrhich is by or under Workmenfs "Act required to be settled, ldeeideelﬁ'o1%""dealt Commissioner and to enforce airy under said Act. Thus, exclusion of _()ivil jiégirisdiction is to the exterit of bar created " _Su.b-w-section (2) itself and there' is no absolute bar '~in'voi§:ing jurisdiction of Civil Court to enforce the " ,Cl'ail'}.'l for tort. Thus, in order to reject a claim or %/ is .

E 3 4'_'unserup'nlous employer should not 55 $44 2 'Z negative a claim made under common law, it must __be shown that the person entitled to compensation or or her legal heirs have already made a ' Compensation under Work:men's way election of a Forum. Thus, Vglnntary" .d_¢;poC=:it_~ made by an employer Compensation Act to ab-solve pi-tselfzihimpself/themselves from any penal of its non Compliance. petition deemed to haye heirs of the deceased; llll requires to be noticed by Paying any pault1y_sum gvuliihle einployee cannot contend that elaim a?-f'Wo'i*kInen has been satisfied and it is in this 8 lays down format for deposit ' -of oorri1peris'ation payable by an einployer when an .. , n1"A'g_ﬁ_i'p1QY€€3z meets with an accident. %0bj€Ct being that be allowed to take t:

it advantage of the ignorance of an employee by it"

making paultry payment. Even in such circumstances, the right of workmen is not scuttled by virtue of: 10 of Workmen Compensation Act and . legal heirs of deceased workme1ﬁ1..woo1d_-- be" ' lodge a Claim petition and thereby by electing the Forum.

25. Now CoII1iI1ébﬂr_:{C1'( of the present Case, it is notjctéé "been deposited by employee"i.f'io"'" its obligation under Worknj;efi*'s*--~ Z.\uet;" V1923. Thus, crucial questiofz. 52¢ prevent the workmen or his legal from "<:1éi1ir1ing Compensation by Way of 'i'n\z;oI<Iri"g"voommon law right to be looked depositing the amount would not _ filing or instituting a claim by employee _§e§a1.-elheirs of deceased employee and thereby it A be held that they have submitted to the ' " -ﬁirisdictioo of Commissioner for Workme:o's C? « 57 Compensation under said Act by choosing the Forum. By reading of proviso to sub-section (2) of Section"

would nowhere throw any light to _ Commissioner can adjudicate upon the"'"quefstion'-Aof "~ personal negligence or willful act. ofthe negligence by some persons' _for, whose act"..or£._default, employer would become resp.onsi.bl'e_A relief under the W.C.Act. question the Commissioneryzould whether the injury or ioyorltrnen arose out of and fleniployment and to what amountlofl or his legal heirs wouldbe entitled ';.to'.:_ Vllhus, Civil Court functioning ' "'under:'c%om1non laW""or general law and Commissioner l'worlr:irig:"'tiricler l_:..V\7OI'kIl'1€I1!S Compensation Act would operate aftotally different and distinct fields and they not lloxzerlap with each other. er"

i

26. Section 3(5) read with Section 19 (2) makes it explicitly Clear that if a workmen institutes a damages in a Civil Court he will not be entitlﬁi ~ compensation under Workmerrs Compen:§siion'.';Ae't uh' vice versa. This prohibition is significant 1'si_ne.e for compensation before "lfor compensation can be has been satisfied under Act by proving among esirher C not only loss but also However, amount of claim even when loss of C"E',I"i.'li.l1g md to be 100% would get restricted toathe--en'trie_sV'see(:ified in Schedule IV of the AC; vx'rlou'i'd'V emerge that subsection (5) of 2- '.

"E:--'~eo1;_1on »-;_juf§ss..e}.nbargo on the workmen or legal heirs in nIIl8.lilF1§§_!":'.~lZW'O separate claims ie, one before Commissioner and other before Civil Court and to avoid euplierition of the claims subsection {5} of Section 3 been enacted. %../ /ﬂwﬂ/WWW" xwxxxxwmmwz 5%

27. It would also be required to be noticed the instant case, the legal heirs of the decease;i~~har'i_'__no-ti' instituted a Claim nor they "

Commissioner for Workmens C_Q'm.p'eonsa;tiori..j;.._fo;jT .' adjudication of their elairng .. It Aistthe observed hereinabove to as envisaged under '9 :":':h_e Workmen's Compensation Act as per tjionijjensation Act. On notice legal heirs of deeeaseii for payment of the amount. _rnere.Tﬁivithdrawal of the amount _,'depositedi'~or ree'eipt_ of money from the Commissioner employer in discharge of his statutory ohliggéationv not indicate or go to show that legal 'representatives of deceased workmen have chosen a L iSort;:n'«-which consequently excludes the jurisdiction of ax { 66 Civil Court. A1: this juncture it would be of releVan(__:_e to note the following Judgments:

2 (2001) ACJ 253 (High Court of Gujarati T Jasuben and others vs. and another j p p A A la) Mere WithdraweLl..l:.,:ﬁl' deposited by the 'riot,__;aqfij5unt to choice of

(b) There is diffeifeiiee liability and :4 Qtionaible 5W'r'ongl"u1i:der ifsiort. 3 Bench of High Court of ll 1

-l§i1.;é_ie:oz'i.l_:«:Keimataka Power Corpn. Ltd.

vs. _.g§§l1)l Mere of money does not indicate any V» l eleeiioii of choice of forum. lb} received by the Claimant should be _ .'o"'efdi(ieted in amount of compensation. *~ >vr"-£"20VV®~4] 11 ACC 332 (Division Bench of High Court l l*--£>fJharkhand) %/ ﬂ%ﬂ#mwmmm mm/mmmm 61 New India Assurance Co.Ltd, vs. Geezia Sinhannd Ors. V 'i

(a) Merely because the claimant the amount deposited by discharge of it Statlifﬁfy' oi:)1ig1¢ition..V" V Claimant should notyy'-._ compensation uncieij M (2001) ACJ 253V»L-Divisio1'1'E§'no1:..of cgjamj Jasuben Wd/0 us. Gigarat Electricity Board :1.' , h _.

(a) j';i1"iodi'c.iion"vof:'CiVi1 Court will 'no étﬁipiication is filed for

-------- provisions of WC.

. (Division Bench of Patna High V « _ " « , Inogia vs. Satyabati and others 'i * ,_ {a) v_ A:'1.fy*Jor}onen making a claim under W.C. Act an alternative remedy under fatal accident.

{ii} A special statute will not deprive rights arising out of tort under common law. A/"

ﬂWMW/'/Wmwzv 62 In these Circumstances, it cannot be plaintiffs were not entitled to file 21 suit fore ' before Civil Court or it cannot be.~he1dA had no jurisdiction to entertain

28. Thus, it emerges in lleérnpevrisation is deposited by an liability and notice of such deposit_:i.s.:.'f§:5.iWol'k1nen/legal heir and it tlirusting a Forum on hapl§S§1 knew about legal iiflow therefrom. At this juncture it'*v§foitildV"be4' oi'»'l)e_r1efit to extract the judgement ___of Ceiirt V.irr...vtlfieAA,ease of MD. Karnataka Power Creetha at Paragraph No.1 l.

_ _ ' In this case, claimants did not _ initie1;te and prosecute any remedy under the illlﬁi/"orl<:1i1e11's Compensation Act, 1923. livilfherever there has an employment injury or death? the employer is required by that law to %"/ Wﬂ 63 deposit such amounts as are awardable under the Schedule to that 'Act' with the Commissioner within the stipulated depositing the amount, the appe.tiant.s:VV' is purported to discharge _th.e_i_r "

obligation under that paid over to the claimants, éalldthat carnvbe said is that such payineiinipshould be deduction to in the comtp-eVn'sati~on aiirardabie in these proceediii.§s..AThe}5ar.';vcoi1.tained in section 1 10fAA of -Act is not attractedipﬁecause have not made section' 110--AA."

291i discussion point No.1 formuIated'=herein"-above deserves to be answered in the negatiifev iA..e., in of the respondents and against AX ~- . __ .ui3Qf"V.Réx:vI'oint No.2 and 3: The trial Court on "..appi*<::eiation of evidence has found that defendants ___"'d'.t1a\§e not denied the fact about the accident in question g%r,// 64 namely death occurring due to electrocution. In fact the certificate dated 7-8-2004 issued by Corporation~*V~x;{fhi_ch came to be marked as EX.P.5 would clearly ~ that defendants 1 to 3 have admitted nu Hanurnanth Sontannavar su'ffered' injtiries "

electrocution on 2004 due to the said 1"€P0T'l which came to be go to show death was due injury and EX.P.10 partment of Forensic Medicine" death was due to Coma, as a result of electric shock and failnv The s"-aid"..medica1 evidence available on not beerrrebutted by the defendants either thee-same or roducin any contra evidence. perusal of the evidence of D.W.1 would that deceased Hanumanth Sontannavar died to electric shock while discharging duties. V ﬂﬂ///hﬂ/J' 65 However, it has been pleaded by defendants 1 to L3,_that accident occurred on account of the negligence-»:.fa.tl'd."

mischief of defendant Nos 4 and 5 and have V' the conviction of defendant ll additional JMFC, Gokak inV would also not come to thelree/cI.1e in * V View of the judgment 'Appeal No. 174/2006 acquitting 5. Once death is discharge of duties that principle of strict liabilityivvvoixldiljldéncture it would be of relevance'. "3iﬁ'dgment of this Court in eoarawza Vsl"K_PTCvL feﬁolted in 2007 (2) AIR Kar R 6 lwhefetinider liteis helclﬂas follows:

'A if one should apply the law as l.eVoli:xjed""ln the perusal of the decisions cited 'behalf of the appellants by their learned 'w.,_e§5unsel, particularly in the light of the law laid down by the Supreme Court in Madhya Pradesh Electricity Board V. Shall Kumari, er"

66

2002 ACJ 526: (AIR 2002 SC 551), it becomes obvious that even in terms of the Fatal Accidents Act, 1855 and on principles of law of strict liability, = ' death is attributed to be in theconteﬁttlVo'i''tfti--eV" 4% functioning of the first defen;da;it~<.}3olar_d;~ the principle is attracted ar1d__.thelV'victim dependents will have the first defendant§Boar(i'; z is engaged in a hazardous and Thus, conclusio'n;._larrittedi Court that deceased electrocution in the alleged fatal of the negligence of the defendants.V_""tl1e fact as to whether defendants were responsible for the said fatal 2"'tliieﬁp':_incip1es of strict liability would apply and of the trial Court is based on sound V' ..appreciation"*"of evidence which does not call for any V' '- °int'crference. :v%_/ 67

32. Though Mr. Kamate learned counsel for the appellants has attempted to make valiant €ffQF.tTS«-,DtQ_ persuade this Court that compensation award.-eidllby' _ tribunal is excessive and not com.mensurate'* the "

established law, I am not inclined to_"aicc'ept'* submission for reason more one.' Admittedly no plea has been raised by theAv.def'endants' l' to 3.:§in the written statement colrlteiidinéf "compensation claimed by excessive or exorbitant . ore the Court of first instance'being!ytheiifffoiindation"upon which the parties would be.lentit1ed:dev'elfop their case if found to be deficient or 4unp_av8..i.1"ab1=e any amount of plea raised in C' any app'el1ate"i-Court'Would be of no avail. At this juncture lvthejiidgmeintid of'_f£.;he Hon'ble Supreme Court in the case of I-3-h_Vag_at:vfSifJ1gh and others Vs. Jaswanth Sinth AIR 1966 SC 1861 would be of relevance C' a.vvhic--h. 'reads as under: 68

"Para:9: The case more to the point is the ._ Pivy Council case relied on by the Ceurée. below viz: AIR 1930 PC 57 (1), where 1:' held that "quote where a _elaz'n1A made in the defence presenlied:1;?G'"haniez¥fL--f.,Qf 1 evidence can be lo0keri*~.into "L.;pen,_a:: pied which was never,-putfoerwwhfd A »»»» Thus a plea not raisedicbefeife cannot be raised for the of an appeal under having taken into eertiﬁcate of the deceased and the eerfyice as per Ex.P.6 has quantified _._the v &}§17:.()11I1"[ payable by applying the . The Division Bench of Punjab and /'X Harya1daVHigh'VA:,ourt in the case Paramjeet Kour and 4' ".ethe1:$ Séfate of Punjab reported in AIR 2009 P 82. held by reiying upon the judgment of the .___"".H0i§1'b1e Supreme Court as under: (1%, W W umw 69 "19. Having held that this is a clear case of negligence, incompetent , " V workmanship and supervision on the the Board and its officidls, resulted in the untimely ttnd sudden t of Sh. Lajja Ram, we tc the amount of the petitioners the . in the and supply the grant or in our considered the settled and accepted edopted by the Courts for '- of compensation' to be in fatal accident cases under the Rezlotelr Vehicles Act, I988 can be adopted, as the underlying principles for determination M ///J7 /////wiry/lrzua .

70 of the quantum of compensation are the same. "

The said yardstick having beerjrllapplived Court to arrive at the compensation payable" "to":

claimants would also go to Hsmuffer from any inﬁrmities noticed that the trial Court the amount in before the Workmerrs namely rlecluction thereof while arriving the ieo-rhlpllensation payable to the plaintyigffs, conclusion arrived at by the trial eleserves to be affirmed by answering the sarrieira t11e_~valiﬁr*1'iiatiVe.

" would be necessary to place on record the assistance rendered by ' Sri.B.S.Kamai:e and J ﬁgﬁriddled erudition of facts and law by Sri.Sriharsh V 71 Nelopanth as also the assistance rendered___ by Sri.RaVi.S.Ba1ikai in arriving at the following c0n.§'iaj};é'.'i0'I'1,v.A4 Re:Point No.3: In View 0f:0*th~e 'dis4cuVs'S'i01%: Vrnadév-. herein above following order is A' ORDERE » (1) Appeal is ﬁC*€1fsts. H i "" V2 (II) Judge-mentxa' passed in 10§1t1Jt_<;4is:V§:i:f'i;dditiona1 Civil dated 109-2009 is "i1e1§ €<byE;fiiririé.§i._ ' (ii1j<. decree accordingly.

ii        Sd/~
JUDGE

«mm:

/05'

 ////

Unlock Advanced Research with PRISMAI

Karnataka High Court