Jammu & Kashmir High Court
United India Insurance Company Limited vs Sharda Devi And Others on 19 November, 2024
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKHAT
JAMMU
FAO (WC) No.37/2022
Reserved on: 10.10.2024
Pronounced on: 19.11.2024
United India Insurance Company Limited,
through its Deputy Manager, Divisional Office I, ...Appellant/Petitioner(s)
Opposite
Presentation Convent School, National Highway,
21/C/B Gandhi Nagar, Jammu.
Though:- Mr. D. S. Chouhan, Advocate
Vs.
Sharda Devi and others ...Respondent(s)
Through:
Mr. Ashok Kumar Nasotra, Advocate
Mr. Amit Khajuria, Advocate
CORAM:
HON'BLEMRJUSTICEVINODCHATTERJIKOUL,JUDGE
JUDGEMENT
1. This appeal has been filed by the appellant against the order dated 23.07.2022( for short „impugned order') passed by learned Commissioner under Employees Compensation Act, 1923 (Assistant Labour Commission, Jammu (for short "learned Commissioner") in Review Petition No. 08-Misc/E C. Act/2022, titled United India Insurance Company Limited vs. T. R. A. Infrastructure Pvt. Ltd. & others whereby the award/judgment dated 26.04.2022 passed by in File No.26-D/E. C. Act/2019 dated 26.04.2022 has been confirmed.
2. The impugned order dated 23.07.2022 is challenged by appellant in this appeal precisely on the grounds that the learned Commissioner while passing the impugned order in review application has fallen in serious error of law; that impugned order confirming the award dated 1 26.04.2022 is patently illegal and cannot survive in the eyes of law; thatthe Commissioner without appreciating the evidence on record and misinterpreting the terms and conditions of the Insurance Policy has passed the impugned order.
3. Heard learned counsel for the parties and perused the material onrecord.
4. An award to the tune of Rs. 10,63,636/- was passed by the learned Commissioner under Employees Compensation Act, 1923 on 26.04.2022 in case titled Shardha Devi & Ors.Vs T. B. A Infrastructure Pvt. Ltd. &Ors." in favour of the claimants/respondents herein on account of death of Yogandra Ram in an accident during the course of his employment of respondents 4 and 5 herein. Aggrieved by the said order, the appellant/Insurance Company filed a review application before the Commissioner for reviewing/recalling of the order dated 26.04.2022.Learned Commissioner while dealing with the review application dismissed the same holding that the same is without any merit and not maintainable.
5. The appellant-Insurance Company did not challenge the said order dated 26.04.2022 passed by the Commissioner, whereby the claim petition under the Employees Compensation Act, 1923 came to be allowed and following relief was granted:-
In the light of above observations, I hold applicants/dependents of the deceased entitled to compensation in terms of Section 4(1) (a) read with schedule IV of the Employee's Compensation Act, 1923. Accordingly, an award to the tune of Rs.8,56,1184 (Rupees Eight lakh fifty-six thousand one hundred eighteen only) is passed in favour of dependents of the deceased and against the respondent No.1. Besides under Section 4A(3) (a) of the Act as well as in view of the discussion made hereinabove petitioners are also held entitled for an interest to the tune of Rs. 1,97,5181- (Rupees one lakh ninety seven thousand five hundred eighteen only) @ 12o/o p.a w.e.f 15.05.2018 to till date 2 (excluding the period w.e.f 20th of March 2020 lo 31stof May 2021 as no effective proceedings were initiated in the case during the said period due to Covid-19 situation). Petitioners are also held entitled for an amount of Rs. 10,000/- (Rupees ten thousand only) on account of funeral expenses of the deceased. As the respondentNo.1 has taken the insurance policy from respondent No.3 (insurance company) for covering the risk of their employees, in which deceased was also covered and the policy was in currency at the time of accident, the respondent No.3, in terms and conditions of the insurance policy is under contractual obligation to indemnify the respondent No.1 for their legal liabilities. Therefore, the respondent No.3 i.e., United India Insurance Co. Ltd. Room No.202-203, North Block, JDA Complex, Bahu Plaza, Railway Head, Jammu through its Authorized Officer, is directed to depositan amount of Rs. 10,63,636/- (Rupees Ten lakh sixty-three thousand six hundred thirty-six only) in this Court within 30 days from the date of passing of this order, failin gwhich the same shall be recovered as an arrear of land revenue by invoking Section31 of the Act. lt be taken note of that if the insurance company fails to deposit the above said awarded amount within prescribed time, then further interest @ 12% p.a. would be attracted on the compensation amount (principal amount only) from the date of award till its actual realization. Parties are, however, directed to bear their respective costs."
6. Section 30 of Employees Compensation Act, 1923, provides that before filing an appeal before the High Court by the aggrieved party, firstly award amount is to be deposited.
7. Record would reveal that after passing of the award dated 26.04.2022, the amount was not deposited before the authority concerned under the Act and as per the provisions contained in Employees Compensation Act, 1923, the period for filing the appeal is 60 days and appeal would be maintainable in case award amount is deposited, which means that if any of the party feels aggrieved of the award he has to first deposit the amount with the authority concerned and after that he can file an appeal within 60 days of the passing of the award.
8. The award in the instant matter was passed in April, 2022, but the 3 amount was not deposited nor was the appeal filed within the period of limitation as provided under the Act, 1923. The appellant instead of filing an appea lmoved a review petition seeking recalling of the order dated 26.04.2022, and the same was dismissed vide impugned order dated 23.07.2022. It is after dismissal of the review petition that the appellant approached the learned Commissioner and awarded amount was deposited on 12.09.2020, which is beyond theperiod provided under the Act, 1923. There is no provision contained in the Act, 1923 which provides for the extension of the period for depositing the award amount.
9. The appellant-Insurance Company appears to have filed a review petition, though there was a remedy of appeal available and the provisions of the Act, 1923 provides that time limit for filing the appeal is 60 days. Admittedly, the appeal has been filed beyond the period of limitation.
10. Learned counsel for the appellant-Insurance Company submits that appellant is entitled to exclude the period which was occupied by the application for review, therefore, the limitation would start from the date when the review petition was dismissed. What is provided under the Act, 1923, is the time limit for filing an appeal and the appellant-Insurance Company instead of filing an appeal had filed a review petition which was not maintainable and there is no provision under the Act which provides for review.
11. The remedy availed by the appellant-Insurance Company was wrong.
Appellant ought to have filed appeal instead of review, as such, the time taken till dismissal of the review cannot be taken as the period spent bona fidely in order to extend the time for filing an appeal.
12. The learned counsel for the appellant-Insurance Company has relied 4 upon the judgment of the Supreme Court in case titled Radha Gajapathi Raju and others vs. Madurin Gajapathi Raju and others, Civil Appeal Nos. 6974/6975/2001 decided on 22.10.2021. In the said case, a review application filed by the appellants after dismissal of the Special Leave Petition was rejected by the learned Single Judge on the ground that there is no satisfactory ground to condone the delay in filing the review petition. The respondents therein objected the review application on the ground that the SLP was not pending for 722 days as there were orders passed to remove objections in the SLP which the appellants failed to cure despite preemptory nature of orders passed. The said fact was stated to be correct, however the Supreme Court observed that the fact remains that the delay was condoned and the SLP stands numbered, as such, condonation of delay in filing the review application without commenting one way or the other on the issue of merits of the review, application was allowed.
13. In the present case, efficacious remedy in the form of appeal was available, however, the appellant-Insurance Company bypassed the said remedy and filed a review petition before the learned Commissioner and the same was dismissed vide order dated 23.07.2022. The appellant-Insurance Company upon dismissal of the review application has filed the instant appeal beyond the prescribed period of 60 days. It is flabbergasting to note that the appellant-Insurance Company after passing of the award vide order dated 24.06.2022 approached this Court and filed the instant appeal on 15.09.2022,i.e., beyond the period of limitation. There is no provision under the Act which provides for review, as such, the time taken in the dismissal of the review application cannot be taken as the period spent bona fidely in order to extend the 5 time of limitation for filing the instant appeal.
14. In view of the above, the instant appeal is, accordingly, dismissed as being barred by limitation. Any observations made in this order shall not be construed as an expression on the merits of the appeal.
(VINODCHATTERJIKOUL) JUDGE JAMMU 19.11.2024 Bir 6