N.N. Mathur and Amaresh K. Singh, JJ.
1. Heard learned Counsel for the parties.
2. This appeal has been preferred under Section 18 of the Rajasthan High Court Ordinance, 1949, against the judgment dated 3.1.96 passed by the learned single Judge of this Court in Civil Misc. Appeal No. 523 of 1994. By the aforesaid judgment, the learned single Judge dismissed the appeal and upheld the award dated 28.10.93 passed by the Workmen's Compensation Commissioner in Claim Case No. WE/67 of 3989 awarding a sum of Rs./ 76,856 as well as interest under Section 4-A(3) and penalty under Section 4-A(3) of the Workmen's Compensation Act, 1923.
3. The facts giving rise to the present appeal may be briefly summarised as below:
Sayed Khan Pathan was working as a driver on truck No. RSY 8071 belonging to Rafiq Khan (respondent No. 8). The truck was insured with the present appellant, namely, Oriental Insurance Co. Ltd., Jodhpur under policy No. 30/00143/90 dated 19.8.1989. On 19.8.1989 at 8 a.m., Sayed Khan Pathan was instructed by respondent No. 8 to go to Nimbahera from Rajsamand. When Sayed Khan started the truck, he found that there was some defect. He stopped the truck near the house of India Singh Rajput. Sayed Khan was asked to place the jack beneath the truck in order to raise the wheel above the ground. At that time jack slipped and, as a consequence, Sayed Khan was crushed between the ground and the wheel of the truck. He was taken to General Hospital, Udaipur where he was operated. In spite of the medical treatment provided to him, he expired on 13.9.1989. After the death of Sayed Khan, his widow Momina Begum (respondent No. 1) on her behalf as well as on behalf of respondent Nos. 2 to 5, who were minor children of Sayed Khan and Akbar Khan and Hazara Begum, filed an application before the Workmen's Compensation Commissioner for grant of Rs. 1,25,000 as compensation. Rafiq Khan, the owner of the truck and Oriental Insurance Co. Ltd. were arrayed as non-petitioners. Both the non-petitioners contested the claim petition and filed the written statement. After giving opportunity to both the parties to produce their evidence and to submit their arguments, the Workmen's Compensation Commissioner, Udaipur, by his order dated 28.10.1993, dismissed the claim of the petitioner No. 7 Hazara Begum and allowed the claim petition of the petitioner Nos. 1 to 6 as against both the non-petitioners for the following amounts:(1) Compensationawarded Rs. 76,856.00(2) Interest awardedunder section4-A(3) Rs. 18,445.44(3) Penalty imposedunder section4-A(3) Rs. 19,214.00(4) Court fees andexpenses ofwitnesses awarded Rs. 700.00(5) Advocate's feeawarded Rs. 30.00________________Total sum awarded Rs. 1,15,245.44
4. An appeal was filed by the Oriental Insurance Co. Ltd. (non-petitioner No. 2) against the award passed by the Workmen's Compensation Commissioner. The appeal was heard by the learned single Judge and by judgment dated 3.1.1996, the appeal was dismissed. Feeling aggrieved by judgment of the learned single Judge, non-petitioner No. 2 has filed the present appeal under Section 18 of the Rajasthan High Court Ordinance, 1949.
5. During the hearing, a preliminary objection was raised by learned Counsel for respondent Nos. 1 to 7 that a second appeal against the judgment of the learned single Judge is not maintainable in view of Section 30 of the Workmen's Compensation Act, 1923. We propose to deal with the preliminary objection raised by the respondent Nos. 1 to 7.
6. The submission of the learned Counsel for the respondent Nos. 1 to 7 is that Sub-section (1) of Section 30 of the Workmen's Compensation Act, 1923 (hereinafter to be referred as 'the Act'), uses the words 'an appeal shall lie to the High Court' and the use of the word 'an' clearly indicates that only one appeal is permitted by Section 30 of the Act and, therefore, no second appeal is permissible. On the other hand, the learned Counsel for the appellant has submitted that Section 18 of the Rajasthan High Court Ordinance, 1949, provides that an appeal shall lie to the High Court from the judgment passed by the learned single Judge, provided that the judgment does not belong to any class of judgments against which no appeal is permissible under Section 18 of the Rajasthan High Court Ordinance, 1949 and, therefore, the present appeal is maintainable.
7. Section 18 of the Rajasthan High Court Ordinance, 1949 reads:
18. Appeal to the High Court from judgment of Judges of the court.-(1) An appeal shall lie to the High Court from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under Section 43 or in the exercise of criminal jurisdiction of one Judge of the High Court.
(2) Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the High Court where the Judge who passed the judgment declares that the case is a fit one for appeal.
8. A bare reading of Sub-section (1) of Section 18 of the Rajasthan High Court Ordinance, 1949 shows that an appeal lies to the High Court from the judgment of one Judge of the High Court in all cases except the following:
(1) a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the High Court;
(2) an order passed in exercise of revi-sional jurisdiction;
(3) an order passed or made in exercise of the power of superintendence under Section 43; and
(4) an order passed or made in exercise of criminal jurisdiction.
Sub-section (2) of Section 18 incorporates a proviso to the exception (1) given in Sub-section (1). It provides that if the Judge declares that the case is fit for appeal and the judgment has been given in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction of court subject to the superintendence of the High Court, then a second appeal shall lie.
9. It is not disputed that the judgment passed by the learned single Judge in the appeal filed under Section 30 of the Act, is not covered by any exception provided in Sub-section (1) of Section 18 of the Raj-asthan High Court Ordinance, 1949. Hence, unless there is any provision to prohibit, expressly or by necessary implication, the filing of an appeal against the judgment passed by a single Judge of this Court, it will have to be said that a second appeal lies to the High Court under Sub-section (1) of Section 18 of the Rajasthan High Court Ordinance, 1949.
10. Section 18 of the Rajasthan High Court Ordinance, 1949 was considered by a Full Bench of this Court in New India Assurance Co. Ltd. v. Santosh 1996 ACJ 447 (Rajasthan). The question before the Full Bench was whether a special appeal lies under Section 18 of the Rajasthan High Court Ordinance, 1949 against the judgment of single Judge in appeal under Section 110-D of the Motor Vehicles Act, 1939 and Section 173 of the Motor Vehicles Act, 1988. The answer was given in the affirmative. The question whether a special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 lies against the judgment of a single Judge given in appeal filed under Section 30 of the Workmen's Compensation Act, 1923 was not considered. The decision of the Division Bench of the Bombay High Court in the case of Dhondubai Murlidhar Reddi v. Proprietor, Jankidas Khandsari Sugar Factory 1991 ACJ 954 (Bombay), was cited before the Full Bench. The Full Bench observed:
It was a case arising out of the provisions of the Workmen's Compensation Act, 1923. In that case, the Division Bench of the Bombay High Court has taken the view that the Commissioner exercising power under the Workmen's Compensation Act, 1923, is not a civil court. The award passed by him is subject to appeal under Section 30 of the Workmen's Compensation Act, 1923, only on the substantial question of law. In the context of the provisions of the Workmen's Compensation Act, 1923, the Division Bench of the Bombay High Court has held that further appeal under Clauses 15 and 16 of the Letters Patent of High Court of Bombay will not be maintainable against the judgment and order passed by the learned single Judge in an appeal under Section 30 of the Workmen's Compensation Act, 1923. This decision is not required to be considered in further details. This is so because in these matters, we are not concerned with the provisions of Section 30 of the Workmen's Compensation Act and the question as to whether further internal appeal in the High Court would be maintainable or not. It is an undisputed position that the provisions of the Workmen's Compensation Act, 1923, are not analogous to the provisions of the Act or that of Motor Vehicles Act, 1988. Therefore, the reliance placed on the said decision is of no help to the respondents-claimants.
11. Since the Full Bench did not express any opinion as to whether a special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 lies to the High Court, against the judgment passed by a single Judge in appeal filed under Section 30 of the Act, the question arising before this Bench is res integra.
12. Our attention has been drawn to a recent decision of the Supreme Court in Vanita M. Khanolkar v. Pragna M. Pai JT 1998 (7) SC 17. In that case, the Supreme Court considered the question whether an appeal would lie before the Division Bench of the High Court against the order of the learned single Judge rendered by him in proceedings under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act'). The facts of the case were that in Suit No. 411 of 1993, a learned single Judge passed an order dated 15.11.1994 decreeing the suit in terms of the Act. When an appeal was carried to the Division Bench of the High Court against the said order, it was contended on behalf of the respondents that the appeal was not maintainable in view of Sub-section (3) of Section 6 of the Act. Sub-section (3) of Section 6 of the Act bars any appeal or revision against any order passed by the court under Section 6 of the Act. After considering the provisions of Clause 15 of the Letters Patent, the Apex Court observed:
Now, it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under Letters Patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contended by the learned Counsel for the respondents that if Clause 15 of the-Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of Clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by the learned single Judge of the High Court exercising original jurisdiction of the court. Only on that short ground the appeal is required to be allowed.
13. Thus, the law, as to the maintainability of special appeal under Clause 15 of the Letters Patent as declared by the Hon'ble Supreme Court, is to the effect that unless the statute expressly bars special appeal under Clause 15 of the Letters Patent, a special appeal under Clause 15 of the Letters Patent would be maintainable before the High Court.
14. The provisions of Clause 15 of the Letters Patent were considered by the Supreme Court in another case of National Sewing Thread Co. Ltd. v. James Chand-wick and Brothers Limited AIR 1953 SC 357: ILR (1953) SC 1028. In that case, a petition under Section 76(1) of the Trade Marks Act, 1940 was preferred before the Bombay High Court against the decision of the Registrar. The appeal was heard and decided by Hon'ble Justice Shah. A special appeal under Clause 15 of the Letters Patent was filed against the judgment passed by Hon'ble Justice Shah. The special appeal was allowed and the order passed by the learned single Judge was set aside. The first question which was considered by the Supreme Court was whether the judgment of Hon'ble Justice Shah was subject to appeal under Clause 15 of the Letters Patent of the Bombay High Court. It may be pointed out that Section 76 (1) of the Trade Marks Act provides:
Save as otherwise expressly provided in the Act an appeal shall lie, within the period prescribed by the Central Government, from any decision of the Registrar under this Act or the Rules made thereunder to the High Court having the jurisdiction.
Section 76 (1) did not provide the procedure to be adopted by the High Court in dealing with the appeal filed under Section 76 (1) of the Trade Marks Act. The Hon'ble Supreme Court observed:
The Trade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, indeed Section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously, after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provisions of the charter under which that court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was very succinctly stated by Viscount Haldane, L.C. in National Telephone Co. Ltd. v. Postmaster- General (1913) AC 546, in these terms:
When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach and also that any general right of appeal from its decision likewise attaches.
The same view was expressed by their Lordships of the Privy Council in the case of R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrsekhara Thevar (1947) 74 IA 264, wherein it was said:
Where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.
15. The Supreme Court also referred to the decision given in Secretary of State for India v. Chellikani Rama Rao (1916) ILR 36 Mad 617 and further observed:
Though, the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized at such of the appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act.
16. This principle has been reiterated in the case of South Asia Industries (P) Ltd. v. S.B. Sarup Singh AIR 1965 SC 1442. The Hon'ble Supreme Court observed:
The following legal position emerges from the said decision: A statute may give a right to appeal from an order of a Tribunal or a court to the High Court without any limitation thereof. The appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court. Under the Rules made by the High Court in exercise of the powers conferred on it under Section 108 of the Government of India Act, 1915, an appeal under Section 39 of the Act will be heard by a single Judge. Any judgment made by the single Judge in the said appeal will under Clause 10 of the Letters Patent, be subject to an appeal to that court. If the order made by a single Judge is a judgment and if the appropriate legislature has expressly or by necessary implication, not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a single Judge under Clause 10 of the Letters Patent of the High Court. It follows that, if the Act had not taken away the Letters Patent Appeal, an appeal shall certainly lie from the judgment of the single Judge to the High Court.
17. The Full Bench of this Court in New India Assurance Co. Ltd. v. Santosh (supra) has taken a similar view. In para 21, the Full Bench has observed:
With utmost respect, it is difficult to agree with the Division Bench decisions of this Court in the cases of New India Assurance Co. Ltd.. 1994 ACJ 105 (Rajasthan) and Oriental Insurance Co. Ltd. 1994 ACJ 157 (Rajasthan), wherein the expression 'an appeal' has been interpreted to mean one appeal and, thereafter, it is concluded that the Act provides only one appeal and by necessary implication the right of appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, is taken away. The right of appeal conferred under Section 18 of the Rajasthan High Court Ordinance, 1949, cannot be taken away unless specific provision is made to that effect. It would not be permissible to the court to read the language of Section 110-D of the Act in such a way that the right conferred on the litigants under Section 18 of the Rajasthan High Court Ordinance, 1949, is taken away. This is so in view of the law laid down by the Supreme Court which is referred to hereinabove.
18. It may be pointed out that Rajasthan High Court Ordinance, 1949 (Ordinance No. XV of 1949) was promulgated by his Highness the Rajpramukh on 21.6.1949 for the purpose of establishing a High Court of Judicature for the united State of Rajasthan. This ordinance was promulgated in exercise of the powers conferred by Article 10 (3) of the Covenant of 1949. The covenant was a sort of an interim constitutional arrangement which came to an end with the coming into force of the Constitution of India but the covenant undoubtedly conferred legislative powers on the Rajpramukh to promulgate the Rajasthan High Court Ordinance, 1949 with the object of establishing the High Court of Judicature for Rajasthan and enact Jaws for the purpose of regulating the powers and prescribing the procedure for the High Court. When Section 30 of the Workmen's Compensation Act was enacted, the Rajasthan High Court Ordinance, 1949 was not in existence. In view of these facts, a question arises whether Section 30 of the Act, can be said to curtail the legislative powers vested in the Rajpramukh, to enact Section 18 of the Rajasthan High Court Ordinance, 1949. No authority has been cited before us to suggest the inference that Section 30 of the Act, in any manner, curtails the future legislative powers of the Rajpramukh under Article 10 (3) of the Covenant of 1949. The limitation on the authority against future legislation, cannot be said to have been imposed on the legislative authority of the Rajpramukh by provisions contained in Section 30 of the Act. Since we have come to the conclusion that a special appeal shall lie to the High Court, against the judgment or order of a single Judge except in the cases mentioned in Sub-section (1) of Section 18 of the Rajasthan High Court Ordinance, 1949 and that the judgment passed by the learned single Judge, in an appeal filed under Section 30 of the Act is not covered by any exception mentioned in Sub-section (1) of Section 18 of the Ordinance unless it is held that Section 30 of the Act, limits the legislative powers of the Rajpramukh, expressly or by necessary implication, there would be no escape from the conclusion, that a special appeal against the judgment of the single Judge of this Court is maintainable under Section 18 of the Rajasthan High Court Ordinance, 1949. We, therefore, do not find any force in the preliminary objection raised by the learned Counsel for the respondent Nos. 1 to 7.
19. In this appeal, the learned Counsel for the appellant has submitted that the appellant is not liable to pay the interest and the penalty because the responsibility for making payment was initially of the respondent No. 8 and not of the appellant and, therefore, the appeal deserves to be allowed. The learned Counsel for the respondent Nos. 1 to 7 has supported the judgment of the learned single Judge.
20. After carefully considering the arguments of the learned Counsel for both the parties, we are of the opinion that the question whether the insurance company is liable to pay interest and penalty is no longer res integra, as this question has already been decided by the Apex Court in Ved Prakash Garg v. Premi Devi 1998 ACJ 1 (SC). In that case, the Apex Court has observed:
Thus, so far as interest is concerned, it is almost automatic once default, on the part of the employer in paying the compensation due, takes place beyond the permissible limit of one month. No element of penalty is involved therein. It is a statutory elongation of the liability of the employer to make good the principal amount of compensation within permissible time-limit during which interest may not run but otherwise liability of paying interest on delayed compensation will ipso facto follow. Even though the Commissioner under these circumstances can impose a further liability on the employer under circumstances and within limits contemplated by Section 4-A(3)(a) still the liability to pay interest on the principal amount under the said provision remains a part and parcel of the statutory liability which is legally liable to be discharged by the insured employer. Consequently such imposition of interest on the principal amount would certainly partake the character of legal liability of the insured employer to pay the compensation amount with due interest as imposed upon him under the Compensation Act. Thus, the principal amount as well as the interest made payable thereon would remain part and parcel of the legal liability of the insured to be discharged under the Compensation Act and not dehors it. It, therefore, cannot be said by the insurance company that when it is statutorily and even contractually liable to reimburse the employer qua his statutory liability to pay compensation to the claimants in case of such motor accidents to his workmen, the interest on the principal amount which almost automatically gets foisted upon him once the compensation amount is not paid within one month from the date it fell due, would not be a part of the insured liability of the employer. No question of justification by the insured employer for the delay in such circumstances would arise for consideration. It is of course true that one month's period as contemplated under Section 4-A(3) may start running for the purpose of attracting interest under Sub-clause (a) thereof in case where provisional payment has to be made by the insured employer as per Section 4-A(2) of the Compensation Act from the date such provisional payment becomes due. But, when the employer does not accept his liability as a whole under circumstances enumerated by us earlier then Section 4-A(2) would not get attracted and one month's period would start running from the date on which due compensation payable by the employer is adjudicated upon by the Commissioner and in either case the Commissioner would be justified in directing payment of interest in such contingencies not only from the date of the award but also from the date of the accident concerned. Such an order passed by the Commissioner would remain perfectly justified on the scheme of Section 4-A(3)(a) of the Compensation Act. But, similar consequence will not follow in a case where additional amount is added to the principal amount of compensation by way of penalty to be levied on the employer under circumstances contemplated by Section 4-A(3)(a) of the Compensation Act after issuing show cause notice to the employer concerned who will have reasonable opportunity to show cause why on account of some justification on his part for the delay in payment of the compensation amount he is not liable for this penalty. However, if ultimately, the Commissioner after giving reasonable opportunity to the employer to show cause takes the view that there is no justification for such delay on the part of the insured employer and because of his unjustified delay and due to his own personal fault he is held responsible for the delay, then the penalty would get imposed on him. That would add a further sum up to 50 per cent on the principal amount by way of penalty to be made good by the defaulting employer. So far as this penalty is concerned, it cannot be said that it automatically flows from the main liability incurred by the insured employer under the Workmen 's Compensation Act. To that extent, such penalty amount as imposed upon the insured employer would get out of the sweep of the term 'liability incurred' by the insured employer as contemplated by the proviso to Section 147(1)(b) of the Motor Vehicles Act as well as by the terms of the insurance policy found in proviso (b) and (c) to Sub-section (1) of Section II thereof. On the aforesaid interpretation of these two statutory schemes, therefore, the conclusion becomes inevitable that when an employee suffers from a motor accident injury while on duty on the motor vehicle belonging to the insured employer, the claim for compensation payable under the Compensation Act along with interest thereon, if any, as imposed by the Commissioner, under Sections 3 and 4-A(3)(a) of the Compensation Act will have to be made good by the insurance company jointly with the insured employer. But, so far as the amount of penalty imposed on the insured employer under contingencies contemplated by Section 4-A(3)(b) is concerned as that is on account of personal fault of the insured not backed-up by any justifiable cause, the insurance company cannot be made liable to reimburse that part of the penalty amount imposed on the employer. The latter because of his own fault and negligence will have to bear the entire burden of the said penalty amount with proportionate interest thereon if imposed by the Workmen's Compensation Commissioner.
21. The law declared by the Supreme Court is binding under Article 141 of the Constitution of India. Since the question is no longer res Integra, we need not refer to any other authority for the purpose of deciding the question whether the appellant is liable to pay the interest on the compensation amount and penalty imposed on the employer. The appellant insurance company is liable to pay the interest on the compensation amount but the appellant is not liable to pay the penalty imposed on the respondent No. 8.
22. For the above reasons, the appeal is partly allowed. The award passed by the Workmen's Compensation Commissioner and the judgment passed by the learned single Judge are upheld so far as the amounts of compensation, interest and costs (including Advocate fee) are concerned but the same are hereby modified so far as the amount of penalty is concerned. It is hereby ordered that the penalty imposed on the respondent No. 8 shall be payable by the respondent No. 8 only and the appellant shall not be liable to pay the amount of penalty.
23. The appeal is decided accordingly.