MANGILAL Vs. CHUNNILAL

JUDGEMENT

(1.) THIS revision has been preferred by Mangilal. Basant Kumar and Shantilal who are sons of Bhanwar Lal (employer and opposite Party No'1 before the Workmen's Compensation Commissioner. Udaipur Region, Udaipur) and is directed against the order dated May 5, 1977 passed by the Workmen's Compensation Commissioner, Udaipur Region, udaipur on an application dated November 3, 1976 under Section 47 Civil procedure Code.

(2.) A few facts deserve recall here. One Shri Chunnilal son of Shri Paras ram resident of Nai, Tahsil Girawa District Udaipur preferred claims under the Workmen's Compensation Act, 1923 (For short the Act) before the Workmen's Compensation Commissioner, Udaipur Region, Udaipur, who will hereinafter be preferred to as the Commissioner on the ground that on July, 13,1972 Smt. Ganeshi wife of Chunnilal (applicant No. 1 before the Commissioner) and Kumari Narbada daughter of Chunnilal (applicant No. 2 before the Commissioner) died because of the accident. He filed two claims for compensation against Bhanwarlal (employer) and Ambalal son of Bharaji (Contractor-opposite party No. 2 before the Commissioner) for payment of compensation of Rs. 14,000/- i. e. Rs. 7,000/- on account of the death of kumari Narbada and Rs. 7. 000/- on account of the death of Smt. Ganeshi. This claim was resisted by Shri Bhanwarlal (employer-opposite party No. 1)who has died on January 17, 1975.

(3.) THERE is no dispute regarding the date of his death. It was stated by bhanwarlal that Smt. Ganeshi and Kumari Narbada were not his workmen under the Act and that they were not in his employment. His case further was that the accident did not take place out of and in the course of their employment with him. Ambalal (contractor-opposite party No. 2) did not file any reply to contest the claim and an order to proceed ex-parte against him was passed in both the claims on March 9, 1973. The Commissioner consolidated the aforesaid two claims. During the pendency of the proceedings ex-parte order was made against Bhanwarlal on October 15,1974. He moved and application for getting this order set aside and on his application, ex-parte order was set aside on December 13, 1974. Bhawarlal as stated above died on January 17, 1975 and the fact of his death was not brought to the notice of the Commissioner by any of the parties to the claim. The Commissioner as bhanwarlal did not appear, again proceeded ex-parte against him on February 26, 1975. After this, the advocate for Bhanwarlal submitted an application on March 3, 1975 for setting aside the above order dated February 6, 1975. The Commissioner, however, rejected the application on April 14, 1975. The Commissioner gave an ex-parte award (Judgment) in the two consolidated claims of Chunnilal on June 3, 1975 against Bhanwarlal (employer-opposite party No. 1) and Ambalal (contractor-opposite party No. 2) and awarded a sum of Rs. 14,000/- (Rs. 7,000/- in each claim) to be the applicant chunnilal. A notice dated October 4, 1976 was issued by the Tehsildar, gogunda to the legal representatives of Bhanwarlal. The notices were issued to Mangilal, Roshanlal and Basantilal under the Rajasthan Public Demands recovery Act, 1952 and the Rajasthan Land Revenue Act, 1956 requiring the aforesaid three persons to deposit the amount of Rs. 7039. 50 (Rs. 7,000/-compensation and Rs. 39. 50 per proportionate amount of costs) in the office of the Tehsildar on or before November 4, 1976. It may be mentioned here that Bhanwarlal has Mangilal, Basant Kumar and Shantilal as his sons i. e. the petitioners before me. The notice to Roshanlal and Basantlal were wrongly issued mentioning them as sons of Bhanwarlal. After the receipt of the above notices, the petitioners came to know for the first time regarding the award of Rs. 14,000/-made against their father Bhanwarlal on June 3, 1975, Thereupon they submitted an application under Section 47, Civil Procedure Code to the Commissioner on November 3, 1976. It was, inter alia stated in that application that Bhanwarlal (employer-opposite party No. 1)had expired on January 17, 1975 and ex-parte award was made on June 3, 1975 and, therefore, the award was made against a dead person and as such it was null and void. In support of the fact that Bhanwarlal had died on January 17, 1975 a photo state copy of the entry from the office of the Health Officer of the Mahanagarpalika of Surat and the affidavit of the petitioner Mangilal were submitted. It was mentioned that the award (judgment) dated June 3, 1975 against Bhanwarlal (employer) was a nullity and, therefore, it should be set aside. On the application of the petitioners, recovery proceedings were ordered to be stayed by the Commissioner. Chunnilal (applicant before the Commissioner) resisted the application submitted by the petitioners under Section 47 Civil Procedure Code dated November 3, 1976 by filing a reply dated January 3, 1977 on various grounds. The Commissioner heard the arguments on the application and dismissed the same by his order dated May 5, 1977 on the ground that such an application was not maintainable inasmuch as the provisions of the Civil Procedure Code are not applicable.