Judgment:
R.S. Garg, J.
1. The insurance company being aggrieved by the award dated January 23, 1995, passed in claim case No. 66 of 1992 (workmen's compensation) by the Commissioner of Workmen's Compensation, Jabalpur, has preferred this appeal.
2. The brief facts necessary for the disposal of the appeal are that the deceased, according to the allegations of the claimants, was employed as a driver by Respondent No. 4 on his truck MUJ 2092. In the course of the employment when the driver was plying the truck, it met with an accident at Hinganghat, Wardha, Nagpur. The claimants picking up the territorial jurisdiction of Wardha Court, filed an application before the said Court on October 15, 1992. On the very same day, Respondent No. 4 employer also made his appearance and consented to transfer of the case from Wardha (Maharashtra) to Jabalpur (M.P.). After the case was transferred, the insurance company was joined as a party, it appeared and apart from the other defence also submitted that as the transfer under Section 21(2) of the Workmen's Compensation Act was contrary to law, Jabalpur Court would have no jurisdiction. It had also raised various defences like collusion between the employer and the claimants, non-production of the service records and licence of the driver. After recording the evidence and hearing the parties, learned Commissioner overruled the objections regardingthe jurisdiction and came to the conclusion that as the case has been filed in his Court with the transfer order passed by Wardha Court, it would have jurisdiction. Overruling the other objections it awarded a sum of Rs. 82,380/- to the claimants. Being aggrieved by the said award, this appeal has been filed.
3. Mr. N.S. Ruprah, counsel for the appellant, contended that the very language of Section 21(2), second proviso, if it is read in its true spirit and proper perspective, would not leave any doubt that a case can be transferred within the State and beyond the State but before the interstate, transfer sanction of the State Government to which the case is sought to be transferred is necessary and the parties to the proceedings must also record their agreement for transfer of thecase. He submits that in absence of sanction of the State Government and the consent of all concerned, the transfer itself was void and would not clothe the Jabalpur Court with the jurisdiction. Mr. N. Chouhan, on the other hand, submitted that the Act is benevolent legislation and its spirit should not be permitted to be defeated by raising such technical objections. He also submitted that the claimants, the owner (employer) and the insurance company all are from Jabalpur and, therefore, if under the compelling circumstances the case was transferred from Wardha to Jabalpur, no fault can be found with it. Placing reliance on Ramat Massey v. Arvind Construction Co. (P) Ltd., 1989 ACJ 724 (Delhi), it was contended that even if the death is outside the jurisdiction, then too the Commissioner may have jurisdiction.
4. Replying the above argument, Mr. Ruprah placing reliance on Ranjit Kaur v. Santokhsingh, 1976 ACJ 339 (MP), submitted that unless the sanction of the State is obtained and the agreement of the parties is recorded, the case cannot be transferred and the transferee Court would have no jurisdiction. In the matter of Ramat Massey v. Arvind Construction Co. (P) Ltd., (supra), the Delhi High Court held that where in a transaction two nationals of the same country are involved but the cause of action has taken place outside the territorial limits, the question is to be decided on the common principles of law applicable to the parties. There in the case the employee died in Iraq where certain beneficial legislations are applicable but the conditions regarding the applicability of such law is only in relation to Iraqi nationals. The said law was, therefore, not applicable to Indian who died in Iraq. The High Court further held that according to the well-known principles of private international law where the agreement between the parties does not directly and specifically provided remedy in the Courts of a particular country who gave jurisdiction, then it must be examined on the basis of all the attending circumstances of the country. In the said case, on all peculiar facts the High Court held that Delhi Court would have jurisdiction. The same are not the circumstances in this case.
5. Section 21(2) of the Workmen's Compensation Act clothes the Commissioner with the jurisdiction to transfer the case interstate but the rule regarding transfer is controlled by the exception created under second proviso. The second proviso to Section 21(2) clearly states that a case can be transferred by the Commissioner in the same save with the previous sanction of the State Government or to the Commissioner in another State save with the previous sanction of the State Government of that State, unless all the parties to the proceedings agree to the transfer. The Commissioner can exercise the jurisdiction only when the State Government where the lis is sought to be transferred has given the sanction and all the parties to the proceedings agreed to the said transfer. It cannot be disputed that in the instant case the State of M.P. did never give its consent or sanction for transfer of the case. Even the insurance company against whom the award has been passed was not joined as a party nor a notice was issued to it nor its agreement was obtained. Mr. Chouhan submits that the words 'parties to the proceedings' would mean the parties on the record. I am unable to agree with this argument. The 'parties to the proceedings' in view of the intention of the legislation would mean the parties which are supposed to be on record to constitute the petition as a valid petition. In absence of the insurance company and without sanction of the State Government, the case could not have been transferred. The Court below was patently wrong in holding that because the case was transferred from Wardha Court to Jabalpur Court, it would have jurisdiction in the matter.
6. Regarding joining of the insurance company as a party, Mr. N. Chouhan submitted that as the claimants did not know the details and wherabouts of the insurance company, they could not join it in Wardha Court. This argument loses sight of the fact that the claim petition wasfiled in Wardha Court on October 15, 1992 and on the same day the employer, i.e., the truck owner was present in the Court and gave his consent for transfer of the case in writing. If the employer was available and was ready to oblige the claimants then certainly the claimants could obtain the details of the insurance company from the employer.
7. Regarding the collusion and non-production of the documents, I refrain to make any observation because in my opinion the Court below had no jurisdiction to entertain the petition. The award made by the learned Commissioner for Workmen's Compensation is liable to be and is accordingly quashed. The matter is sent back to him for retransfer of the case from Jabalpur Court to Wardha Court. The parties shall appear before the learned Commissioner for Workmen's Compensation, Jabalpur on December 18, 1995, who shall, in compliance of this order, transfer the records back to Wardha Court with the direction to the parties to appear on a particular date before Wardha Court.
8. At this juncture Mr. N. Chouhan submitted that in view of the Workmen's Compensation (Amendment) Act, 1995, in which second proviso has been deleted, now the claimants can lodge a claim at a place where they reside. It is to be seen that the said Amendment Act has not come into force yet. If before the Wardha Court an application is made, then Wardha Court may retransfer the case to Jabalpur Court in view of second proviso to Section 21(2) and in the meanwhile if the Workmen's Compensation (Amendment) Act, 1995, comes into operation, then the claimants would be free to choose the forum available to them.
9. The appeal is allowed. But, however, there shall be no orders as to costs. Registry to send back the records immediately so as to reach the trial Court on or before December 18, 1995.