ABHAY KUMAR GOENKA Vs. KISHAN SINGH

JUDGEMENT

(1.) Invoking the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of Certiorari for quashing the orders dated 7-10-96 and 6-2-97, Annexure-P-5 and Annexure-P-7, respectively, passed by the Commissioner for Workmen Compensation, Shahdol (hereinafter referred to as 'the Commissioner') and has also prayed for other ancillary reliefs.

(2.) The facts as have been unfolded are that the respondent No. I describing himself as the cleaner of the truck bearing registration No. CIJ-8120 owned by the petitioner and driven by respondent No. 2 filed an application under provisions of Workmen Compensation Act, 1923 (hereinafter referred to as 'the Act') for grant of compensation in respect of injuries suffered by him on 18-8-88 due the accident of vehicle in question. The aforesaid application was registered as case No. 116/98. As averred no notice of the proceedings was served on the petitioner. Later on, it was found that notices were published in local Newspaper "Dainik Bharti" published from Katni. On the basis of the said publication notices were deemed to be served on the petitioner and proceeding was taken up ex parte, and eventually, award was passed on 17-10-92 awarding Rs. 76,556.00 with interest at the rate of 12% per annum along with penalty at 50% in favour of respondent No. 1. The award in question has been brought on record as Annexure-P-2. According to the writ petitioner the respondent No. 1 did not implead the Insurer though the truck was duly insured. The award was sent to Tahsildar, Katni for execution of the same. After coming to know about the award the petitioner on 30-4-96 filed an application under Order 9 Rule 13 of the Code of Civil Procedure before the Commissioner for setting aside the same. As respondent No. 1 was not traceable notice was published in newspaper but inspire of that he chose not to appear. Eventually, the matter was taken up ex parte but the Commissioner dismissed the application by order dated 7-1-96 contained in Annexure-P-5. As per the advice of the counsel the petitioner filed an application before the Commissioner under Sections 47, 114 and 151 read with Order 1 Rule 10 of the Code of Civil Procedure which was registered as Case No. 45/96 but the said application was dismissed on 6-2-97. Feeling aggrieved the petitioner preferred an appeal forming the subject-matter of M.A. No. 448/97 which was not entertained by learned single Judge of this Court on the ground that the appeal was not maintainable. However, while not admitting the said appeal the learned Single Judge observed that only remedy available to the appellant therein was under Art. 227 of the Constitution of India. On the aforesaid observation the present writ petition has been filed. It has been set forth that the Commissioner has passed the award in gross violation of the mandatory provisions of law and refused to set aside the ex parte award though the petitioner was not properly served. It is also set forth that the Commissioner has fallen into error by passing a cryptic order justifying the award passed by him. It has also been pleaded that the respondent No. 1 had not filed a proper application before the Commissioner in the requisite pro forma, and hence award is bad in law. It has also been pleaded that the respondent No. 1 had not filed a proper application before the Commissioner in the requisite pro forma and hence. award is bad in law. It has also been urged that when the vehicle was insured and the insurance was valid on the date of accident, if any award was passed the same was to be satisfied by the insurer and though this aspect was brought to the notice of Commissioner he did not consider the effect of the same and rejected the prayer of the petitioner which vitiates the order passed by him. It has also been pleaded that the Commissioner has erroneously opined that the petitioner had knowledge of the proceedings prior to 10-4-96 though the petitioner had brought material on record to indicate that he had no knowledge about the proceedings in question. Quite apart from the above the jurisdiction of the Commissioner to pass the award has also been called in question.

(3.) When the writ petition was pending a prayer was made by the learned counsel for the petitioner to implead the National Insurance Company as respondent No. 4. By order dated 7-1-99 the said prayer was allowed. As this Court was desirous to know whether the vehicle in question was having valid insurance on the date of accident a direction was issued to the learned counsel for the insurer to file the requisite affidavit by the concerned Branch Manager. In pursuance of the direction given by this Court a return has been filed by the respondent No. 4 contending, inter alia, that the petitioner was at fault in not appearing before the Commissioner and the quantum of the award determined by the Commissioner is excessive as the same should have been determined at Rs. 33,783.00; that the penalty cannot be saddled on the Insurance Company; and that the petitioner being at fault from many an aspect the Insurance Company is entitled to be exonerated. It is noteworthy to state here that Mrs. Ruprah, learned counsel for the respondent No. 4, fairly submitted that the vehicle had valid insurance on the date of the accident.