Andhra HC (Pre-Telangana)
Noorjahan vs National Insurance Company Ltd., ... on 14 June, 1999
Equivalent citations: 2001ACJ340, 1999(4)ALD350, 1999(4)ALT447, (1999)IILLJ1057AP
ORDER
1. The above review CMP is filed under Order 47, Rule 1 and Section 104 CPC to review the judgment of Hor'ble Shri Justice B.K. Somasekhara (as he then was) on the ground that the amendment made to Section 21 of the Workmen's Compensation Act, 1923 was not brought to the notice of the learned Judge, in particular, sub-clause (b) of sub-section (1) of Section 21 of the Act. The earlier subsection runs as follows :
"(1) Where any matter is under this Act, 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."
The amendment was substituted by Act 30 of 1995 with effect from 15-9-1995. The effect of this amendment is to facilitate the dependents of the deceased to approach the Commissioner of Workmen's Compensation for claiming the compensation by taking into account the residence of the dependents.
The Parliament, having realised the difficulties faced by the dependents effected this amendment so as to prevent the misery and hardship caused to the dependents to approach the authorities concerned claiming compensation in case of claims arising out of and in the course of employment. In the instant case, the deceased workman died on 12-6-1985 due to an accident which occurred at Indapur in Maharashtra State. The claimant-petitioner filed a petition which was registered as WC 17/90 before the Commissioner of Workmen's Compensation, Hyderabad. The vehicle in question ATT 3413 was insured with the Insurance Company vide policy No.RE 63/2791/84. The widow claimed compensation of Rs.87,980/-. The Insurance Company has not adduced any evidence whereas the claimant has adduced oral as well as documentary evidence to substantiate her claim. And, after considering the age of the deceased by taking into account Post-Mortem Report Ex.A4, the Commissioner, after accepting the sole statement of the widow, found that the deceased has been employed under Rajkamal Transport Company and was earning Rs.1200/- per month and he worked as a Driver. Consequently, the Commissioner assessed the compensation at Rs.87,980/- holding that respondents 1 and 2 were jointly and severally liable for payment of the same. Aggrieved by that order, the Insurance Company preferred CMA 329/1991 raising an objection under Section 21 of the WC Act with regard to the jurisdiction ofthe Commissioner for Workmen's Compensation, Hyderabad to pass the award in WC No.17/90 dated 21-11-1990, since the workman died on 12-6-1985 due to an accident which occurred at Indapur in Maharashtra State. It was contended that the Commissioner for Workmen's Compensation at Hyderabad was devoid of jurisdiction to entertain such a claim and that the Commissioner has overruled the objection raised under Section 21 of the WC Act recording a finding that the provisions of CPC also applies to the proceedings of the WC Act.
2. I have perused the judgment of His Lordship B.K. Somasekhara, J., (as he then was). The learned judge after extracting Section 21(2) observed that the Commissioner has no jurisdiction to deal with the claim proceedings before him since the accident took place at Indapur, Maharashtra State. In such a situation the learned Judge held that the Commissioner has no jurisdiction to try the matter and the award passed by him is without jurisdiction and the same cannot be validly enforced. The matter was remitted back to the Commissioner for passing appropriate order under Section 21(2) of the WC Act. It is against this judgment, the Counsel for the petitioner Mr. K. Narasimha Chari filed the present review petition.
3. Shri Chari contends that when the proceeding is pending before this Court and as on the date on which the order was made i.e., 29-11-1996, the amendment to Section 21 was already inforce but the same was not brought to the notice of the learned Judge while disposing of the above CMA, which is an error apparent on the face of the record. Mr. Chari mainly contended that the beneficial legislation should be interpreted in favour of the employees particularly when the proceeding is pending before this Court by way of an appeal (CMA 329/1991) and the amendment was in operation as on the day on which the judgment was pronounced. Secondly, he argued that no prejudice is being caused to the Insurance Company. It is only a procedural aspect and when once the Insurance Company has participated in the proceedings it amounts to waiver even in respect of territorial jurisdiction. To substantiate his contentions he relied upon the decision of the Apex Court in Dhannalal v. D.P. Vijayvargiya, , wherein the Supreme Court was considering the effect of Amending Act 53 of 1994 which came into force with effect from 14-11-1994, the effect of which is that there is no limitation to file claim before Claims Tribunal in respect of any accident. The relevant passage is para 7 which is as follows:
"7. In this background, now it has to be examined as to what is the effect of omission of sub-section (3) of Section 166 of the Act. From the Amending Act it does not appear that the said sub-section (3) has been deleted retrospectively. But at the same time, there is nothing in the Amending Act to show that benefit of deletion of subsection (3) of Section 166 is not to be extended to pending claim petitions where a plea of limitation has been raised. The effect of deletion of sub-section (3) from Section 166 of the Act can be tested by an illustration. Suppose an accident has taken place two years before 14-11-1994, when sub-section (3) was omitted from Section 166. For one reason or the other no claim petition had been filed by the victim or the heirs of the victim till 14-11-1994, Can a claim petition be not filed after 14-11-1994, in respect of such accident? Whether a claim petition filed after 14-11-1994 can be rejected by the Tribunal on the ground of limitation saying that the period of 12 months which had been prescribed when sub-section (3) of Section 166 was in force having expired the rights to prefer the claim petition had been extinguished and shall not be revived after deletion of subsection (3) of Section 166 with effect from 14-11-1994? According to us, the answer should be in negative. When subsection (3) of Section 166 has been omitted then the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place. The claim petitions cannot be thrown out on the ground that such claim petitions were barred by time when sub-section (3) of Section 166 was in force. It need not be impressed that Parliament from time to time has introduced amendments in the old Act as well as in the new Act in order to protect the interests of the victims of the accidents and their heirs if the victims die. One such amendment has been introduced in the Act by the aforesaid amendment Act of 54/1994, by substituting sub-section (6) of Section 158, which provides:
"As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this Section is completed by a Police Officer, the* Officer incharge of the Police Station shall forward a copy of the same within thirty days from the date of recording information or, as the case may be, on completion of such report to the claims Tribunal having jurisdiction and a copy thereof to the concerned insurer and where a copy is made available to the owner, of such report, forward the same to such Claims Tribunal and Insurer."
In view of sub-section (6) of Section 158 of the Act the officer in-charge of the Police Station is enjoined to forward a copy of the information/report regarding the accident to the Tribunal having jurisdiction. A copy thereof has also to be forwarded to the concerned insurer. It also requires that where a copy is made available to the owner of the vehicle, he shall within thirty days of receipt of such copy forward the same to the Claims Tribunal and insurer. In this background, the deletion of subsection (3) from Section 166 should be given full effect so that the object of deletion of said Section by the Parliament is not defeated. If a victim of the accident or heirs of the deceased victim can prefer claim for compensation although not being preferred earlier because of the expiry of (he period of limitation prescribed, how the victim or the heirs of the deceased shall be in a worst position if the question of condonation of delay in filing the claim petition is pending either before the Tribunal, High Court or the Supreme Court. The present appeal is one such case. The appellant has been pursuing from Tribunal to this Court. Mis right to get compensation in connection with the accident in question is being registered by the respondents on the ground of delay in filing the same. If'he had not filed any petition for claim till 14-11-1994 in respect of the accident which took place on 4-12-1990 in view of the Amending Act be became entitled to file such claim petition, the period of limitation having been deleted, the claim petition which has been filed and is being pursued up to this Court cannot be thrown out on the ground of limitation."
4. In the instant case also the Parliament, having realised the grave injustice and injury which was being caused to the heirs and legal representatives of the victims, introduced Clause (b) by virtue of which it fecilitated the dependents of the deceased to claim compensations where ordinarily the dependents reside. This was introduced by Act 30 of 1995 with effect from 15-9-1995 as on that day the proceeding has not become final and the same was pending by way of an appeal before this Court and the matter was disposed of by this Court on 21-11-1996. In regard to the interpretation to be given in favour of the employee and particularly when a right is conferred on the dependent by way of beneficial legislation to claim compensations, the Supreme Court was examining a case under Industrial Disputes Act (14 of 1947). The Apex Court observed in Bharat Singh v. Management of New Delhi Tuberculosis Centre, , that Section 17-B applies even to awards passed prior to 21-8-1994, a date appointed by the Central Government if they have not become final. The relevant para is as follows :
"11. In interpretation of statutes, Courts have steered clear of the rigid stand of looking into the words of the section alone but have attempted to make the object of the enactments effective and to render its benefits into the person in whose favour it is made. The Legislators are entrusted with the task of only making laws. Interpretation has to come from the Courts, Section 17-B, on its terms does not say that it would bind awards passed before the dates when it came into force. The respondents' contention is that a Section which imposes obligation" for the first time cannot be made retrospective. Such section should always be considered prospective. In our view, if this submission is accepted, we will be defeating the very purpose for which this Section has been enacted. It is here that the Court has to evolved the concept of purposive interpretation which has found acceptance whenever a progressive social beneficial legislation is under review. We share the view that where the words of a statute are plain and unambiguous effect must be given to them. Plain Words have to be accepted as such but where the intention of the Legislature is not clear from the words or where two constructions are possible, it is the Court's duty to discern the intention in the context of background in which a particular section is enacted. Once such an intention is ascertained the Court have necessarily to give the statute a purposeful or a functional interpretation. Now, it is trite to say that acts aimed at amelioration giving benefits for the have-nots should receive liberal construction. It is always the duty of the Court to give such a construction to a statute as would promote the purpose or object of the Act. A construction that promotes the purpose of the legislation should be referred to a literal construction. A construction which would defeat the rights of have-nots and the underdog and which would lead to injustice should always be avoided. This Section was intended to benefit the workmen in certain cases. It would be doing injustice to the section if we were to say that it would not apply to awards passed a day or two before it came into force."
5. Mr. Rama Mohana Rao, learned Counsel for the Insurance Company has contended that the decision rendered in Dhannalal's case (supra) has no application to the facts of the present case since in the present case Clause (b) of Section 21 of Workmen's Compensation Act became effective with effect from 15-9-1995, therefore, those cases alone where accident occurred on or after that date will be covered and not the earlier cases. He relied upon a judgment of this Court in New India Assurance Co. Ltd. v. Salapuriappa, (DB), to substantiate his argument wherein a Division Bench of this Court was considering the effect of the change brought about by the new Act i.e., the Motor Vehicles Act, 1988 effective from 1-7-1989.
6. There, in that case, the Court was examining the liability without fault under Section 92-A of the Old Act and Section 140 of the New Act. The effect of the amendment was to enhance the compensations from Rs.15,000/- to Rs.25,000/-. The Bench observed as follows:
"Therefore, in the absence of clear expression by the Parliament it cannot be readily inferred that Section 140 has been intended to be given retrospective effect. We may also notice that Section 140 has been subsequently amended by Act 54 of 1994 substituting the figure Rs.25,000/- with Rs.50,000/-. If Section 140 has to be given retrospective effect as regards quantum of no fault compensation on the reasoning of the learned single Judge of the Madhya Pradesh High Court in National Insurance Co. Ltd., 1991 ACJ 878 (MP) and of the Division Bench of the Kerala High Court in United India Co. Ltd. case, 1990 ACJ 751 (Ker.), then every time the amount of that compensation is enhanced by Parliament, that wilt have to be given retrospective effect. Moreover, such an interpretation would introduce an element of uncertainity. We find it difficult to take that view. Therefore, we have to hold that the decision of B.S Raikote, J., in New India Assurance Co. Ltd, , is not correct and runs contra to the dictum of the Supreme Court in Rl. Gupta .
Accordingly, the Bench has restored the order passed by the Motor Accidents Claims Tribunal to the extent of Rs.15,000/- under Section 92-A of the Old Act holding that the law applicable as on the date of the accident (i.e., old Act) alone is the crieterion. On the other hand Shri Chari learned Counsel for the claimant contended that it was a case where a duty and liability was cast on the Insurance Company whereas in the case on hand a right is conferred under a beneficial legislation so as to claim compensation and a liberal interpretation has to be applied when particularly a right is conferred on a victim and that claim cannot be thrown out merely on the ground that the Commissionerate, Hyderabad has no jurisdiction to entertain the claim.
7. Having considered the relevant contentions of the parties and after perusing the judgment of His Lordship B.K. Somasekhara, J., (as he then was), I am of the opinion that the amendment under Section 21 particularly Clause (b), which facilitated the dependents to claim compensations from the Commissioner where the dependents are ordinarily residing but not where the accident took place, was not brought to the notice of the learned Judge. Having regard to the judgment of the Supreme Court in Bharat Singh 's case (supra), I am of the view that the claim of the claimant that the Commissioner of Workmen's compensation is having jurisdiction to try the matters since the proceeding is pending before this Court by way of an appeal as on the date of the judgment rendered by the learned Judge on 29-11-1996 is well founded. In view of this, I allow the review application.
8. Accordingly, Review CMP 1349 of 1997 is allowed and the order dated 29-11-1996 passed by His Lordship Shri B.K. Somasekhara, J., is set aside.
9. As far as the merits of the award are concerned, there is no dispute between the parties, i.e., as regards the age of the deceased and also the quantum assessed by the Commissioner of Workmen's Compensation. The only contention raised in respect of the merits of the Award by the Insurance Company is that in the absence of any salary certificate produced by the widow, the said figure cannot be accepted. Since the Insurance Company has not adduced any evidence, the Commissioner has relied upon the evidence of the widow and accepted her version as far as the salary of the deceased is concerned. So far as the age of the deceased was concerned, the Tribunal has relied upon the Post-Mortem Report Ex.A4 which clearly indicates the age of the deceased as 34 years. The relevant factor to be adopted under the Workmen's Compensation Act in case of employee who died at the age of 25 years is 216.91 as per Schedule IV to the Workmen's Compensation Act, 1923. After taking into account the relevant factor i.e., 216.91 a compensation of Rs.86,780/- is arrived at (1000 x 216.91 x 40/100 = 86.764/). The liability is fixed jointly and severally upon the respondents 1 and 2 before the Commissioner of Workmen's Compensation. The Commissioner has awarded Rs.1,000/-towards costs. Thus the total compensation comes to Rs.87,764/-. In view of the above, I find that there is no infirmity in the order passed by the Commissioner of Workmen's Compensation. Accordingly, the CMA No.329 of 1991 is dismissed granting a compensation of Rs.87,764/- in WC No.17/90. There shall be no order as to costs.