SIKKIM AYURVEDIC PVT. LTD Vs. PYARI TAMANGNI

JUDGEMENT

(1.) THIS is a writ petition under Articles 226/227 of the Constitution of India. The petitioner is a private limited company wherein one Tirtha Tamang was employed as a cleaner on its vehicle registered under No. SKM 5787. The said vehicle met with an accident on 7.3.1990 as a result of which Tirtha Tamang died. Respondent No. 1, being the widow of late Tirtha Tamang, filed a claim for compensation before the Commissioner for Workmen's Compensation against the present petitioner and respondent No. 2, the National Insurance Co. Ltd., where the said vehicle was insured. Both the petitioner and respondent No. 2 filed their replies and contested the petition. Learned Commissioner after hearing the parties passed an award on 22.7.1993 holding that the dependants of the deceased workman are entitled to an amount of Rs. 35,581/ - as compensation and directed the petitioner to deposit the said amount with the Commissioner and further held that the insurance company cannot be made to pay the amount directly. He also observed that it was open to the employer to recover the amount by filing a suit in a competent court if he so desires. It is against this order of the learned Commissioner that the present writ petition has been filed and the only prayer made therein is that the award should be modified to the extent that instead of the petitioner, respondent No. 2 should be directed to deposit the compensation amount awarded by the Commissioner. Notices were issued to the respondents. Respondent No. 2 has filed a counter contesting the writ petition on the ground that the writ petition is not maintainable in the present form as well as in law and that the petitioner ought to have resorted to the remedy of appeal provided under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the 'Act of 1923'). Respondent No. 2 has also asserted that the said vehicle did not belong to the petitioner as the registration is in the name of one J.K. Pradhan. It has further been submitted that deceased Tirtha Tamang was not employed as a cleaner in the said vehicle.

(2.) I have heard learned Counsel for the parties and also perused the records of the case.

(3.) AT the very outset, the learned Counsel for the insurance company, respondent No. 2, has submitted that the present writ petition is not maintainable as it involves disputed questions of fact and the petitioner has an alternative remedy of appeal under the Workmen's Compensation Act and, therefore, the writ petition be dismissed summarily. In this connection he has placed reliance on Union of India v. T.R. Varma AIR 1957 SC 882, British India Steam Navigation Co. v. Jasjit Singh AIR 1964 SC 1451 and Champalal v. I.T. Commissioner, W.B. AIR 1970 SC 645. He also drew my attention to sub -para (12) of Note 4 at page 460 of the 35th Volume of AIR Manual, 4th Edition and placed reliance on 1982 TAC 43.