Oriental Insurance Co. Ltd. Vs. Savita (Smt.) and ors. - Court Judgment

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- - 1 to 5 before the workmen's compensation commissioner, udaipur against the appellant as well as the respondents no. it was further held that all the three, non-petitioners were responsible for payment of the amount of compensation along with interest jointly as well as severally. it is well-established that law of limitation is not intended to punish the parties for delay in filing of the appeal or petition, as the case may be and, therefore, the court should take liberal view regarding reasons for delay, but it must be said that in absence of reasons for condonation of delay, the delay cannot be condoned. 3. it is well-established that in order a court or tribunal may pass a binding judgment or decree it must not be wanting in jurisdiction to pass the judgment and the decree. 1000/- and thevespondents failed to discharge the burden of proof. 1 to 5) failed to prove that murlidhar was working as a driver, employed by non-petitioner no.a.k. singh, j. 1. heard the learned counsel for the appellant and the learned counsel for the respondents no. 1 to 5.2. this appeal is directed against the order dated may 15, 1997 passed by the assistant commissioner, udaipur in case no. 76/1989, whereby a sum of rs. 83,182/- with interest has been awarded to the respondent nos. 1 to 5. the facts of the case may be briefly summarised as below: -3. a petition was filed by the respondents no. 1 to 5 before the workmen's compensation commissioner, udaipur against the appellant as well as the respondents no. 1 to 2 with a prayer that a sum of rs. 85,400/- be awarded to the claimants by way of compensation. according to the averments made in the petition, shri murlidhar husband of claimant no. 1 and father of claimants no. 2 to 5 was working as a driver on the jeep no. mbf-742 which was in the possession and use of shri ramesh chandra, claimant no. 2.4. shir murlidhar was getting a salary of rs. 1000/- per month. on june 10, 1989, he was going to udaipur from nimbahera in the above mentioned jeep. when he reached near the bus stand narayanapura, the jeep lost the balance and as a consequence murlidhar who was driving the jeep, expired on account of several simple injuries which he received on several parts of body. from june 10, 1989 to september 3, 1989 murlidhar was hospitalised and ultimately he expired on september 3, 1989 in general hospital, udaipur. post mortem examination was conducted. the claimants prayed that a sum of rs. 85,400/- be awarded to the claimants as compensation along with interest.5. the petition was contested by the non-petitioners. non- petitioner no. 3, the oriental insurance co. ltd. filed a separate statement in which it was denied that murlidhar was employed by the non-petitioner no. 2 ramesh chandra as a driver on a monthly salary of rs. 1000/- per month. the non-petitioner no. 3 however, admitted that jeep no. mbf-742 was registered in the name of respondent no. 1. the liability for compensation was denied on the ground that the deceased murlidhar was not employed by the non- petitioner no. 1, the life insurance corporation of india who was the owner of the jeep.6. the non-petitioner no. 2 ramesh chandra filed a separate written statement in which he denied having employed the deceased murlidhar as a driver on a monthly salary of rs. 1000/-. however, it was admitted that at thetime of accident murlidhar was driving the jeep no. mbf-742. it was further stated in thewritten statement that on june 10, 1989murlidhar went to the non-petitioner no. 2 andrequested him to give his jeep for personalwork and on the request of murlidhar, the jeepwas given to him for his personal work as hebelonged to the village of non-petitioner no. 2 and the latter knew him. it was further statedin the written statement that the insurancecompany was responsible for any harm causedto murlidhar as he was driving the jeep at thetime of accident. 7. both the parties produced their evidence. learned workmen's compensation commissioner, udaipur after taking into consideration the evidence produced by the parties, passed the impugned order on may 15, 1997. by the impugned order, an award to the tune of rs. 83,192/- with interest @6% per annum from the date of accident was awarded. it was further held that all the three, non-petitioners were responsible for payment of the amount of compensation along with interest jointly as well as severally. feeling aggrieved by the impugned judgment given by the workmen's compensation commissioner, udaipur, this appeal has been filed.8. learned counsel for the respondents nos. 1 to 5 has raised several objections and ipropose to deal with them in the followingorder. :9. the first objection raised by him is that the appeal is barred by limitation and the order dated april 28, 1998 whereby, the delay in filing the appeal was condoned, being subject to all just objections, is liable to be re-called. in the absence of any application containing objections against the condonation of delay, it would not be proper to recall the order passed by hon'ble mr. justice bhagwati prasad on april 28, 1998, whereby the delay in filing the appeal was condoned. however, i have gone through the reasons mentioned in the affidavit along with application filed under section 5 of the limitation act. it appears that main reason for the delay in filing of the appeal was that the file was forwarded to head office and decision for filing of the appeal took some delay. in the instant case, there is only 22 days delay in filing the appeal. it is well-established that law of limitation is not intended to punish the parties for delay in filing of the appeal or petition, as the case may be and, therefore, the court should take liberal view regarding reasons for delay, but it must be said that in absence of reasons for condonation of delay, the delay cannot be condoned. in the instant case, it cannot be said that there was no reason at all for passing the order dated april 28, 1998 and i am of the opinion that the affidavit along with the application under section 5 of the limitation act contains such reasons as could be held to be sufficient for condoning the delay. in these circumstances, i do not find any ground for re-calling the order dated april 28, 1998, whereby the delay in filing the appeal was condoned.10. the second objection raised by the learned counsel for the respondents nos. 1 to 5 is that in view of the provisions of section 30 of the workmen's compensation act, 1923, the appeal is not maintainable. the argument is based on two grounds. the first is that no question of law has arisen as required by first proviso of section 30 and as such the appeal is not maintainable. the second ground of the argument is that it was admitted before the workmen's compensation commissioner on behalf of the insurance company that insurance policy issued by the workmen's compensation commissioner covers the harm caused to the deceased and therefore if policy was comprehensive and deceased possessed a valid licence, the second proviso to section 30 of the workmen's compensation act, 1923 applies and as such the appeal is not maintainable. it is also submitted by the learned counsel for the respondents nos. 1 to 5 that the question of jurisdiction was not raised before workmen's compensation commissioner and, therefore, that question cannot be agitated in this appeal. 11. i have carefully considered the submissions made by the learned counsel for the respondents nos. 1 to 5 and the reply to them given by the learned counsel for the appellant. the first proviso to section 30 of the workmen's compensation act provides that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees. in the instant case amount is more than rs. 300/- and the second part of the proviso of section 30 does not bar the appeal. the expression 'substantial question of law' has been liberally interpreted a the number of cases. cases in which a finding is given without there being any evidence at all are regarded as cases involving substantial question of law, cases where burden of proof is wrongly placed and trial is vitiated are also regarded as cases involving substantial question of law. the maintainability of the application for compensation may also be included in the expression 'substantial question of law'.12. in the instant question, the main contention of the learned counsel for the appellant is that the finding given by the workmen's compensation commissioner, udaipur that the deceased murlidhar was in the employment of the defendant no. 2 ramesh chandra as a driver on the salary of rs. 1000/-per month, is a finding without sufficient, reasons that his finding is wrong and, therefore, the petition for compensation before the workmen's compensation commissioner, udaipur was not maintainable. the question of maintainability of the petition for compensation in the instant case is not on account of any technical defect in presentation of the petition for compensation. it is question relating to the jurisdiction of workmen's compensation commissioner to entertain the petition for compensation. the question whether the workmen's compensation commissioner had no jurisdiction because the deceased was not a workman is a substantial question of law.13. the second contention is that it was admitted before the workmen's compensation commissioner, udaipur on behalf of the appellant that insurance policy was comprehensive and the deceased was holding a valid licence and risk to him was covered by the policy and, therefore, the second proviso to section 30 of the workmen's compensation act, 1923 applies. in the instant case, there is no separate agreement as contemplated by second proviso to indicate that the parties had agreed to abide by the decision of the commissioner irrespective of his jurisdiction to entertain the petition and decide the claim. i, therefore, hold that in absence of any such agreement, second proviso of section 30 has no application to present case. the next submission is that the admission made on behalf of the insurance company before the workmen's compensation commissioner, i disentitles the insurance company from filing this appeal, does not appear to be correct.14. the non-petitioner no. 3 assistant director of the insurance company had admitted that jeep no. mbf-742 was registered in the name of non-petitioner no. 1 and the same hand been insured in the name of non-petitioner no. 2 who was using that jeep and the deceased being in possession of a valid licence, the liability is covered by the insurance policy. this statement does not at all show that any admission was made about the maintainability of the petition before the workmen's compensation commissioner or the jurisdiction of commissioner was admitted. the admission is in respect of the scope of the insurance policy issued by the non- petitioner no. 3. it is well-established that in order a court or tribunal may pass a binding judgment or decree it must not be wanting in jurisdiction to pass the judgment and the decree. if there is any inherent lack of jurisdiction in the court or tribunal passing the judgment or the decree, then such inherent lack of jurisdiction renders judgment as void. section 30 of the workmen's compensation act, 1923 does not appear to be intended to deprive the high court of its jurisdiction to consider whether the proceedings initiated, continued or concluded before the workmen's compensation commissioner are in accordance with law. besides the jurisdiction vested in the high court under section 30 of the workmen's compensation act in any manner entitles this court to consider the illegality of the proceedings before the workmen's compensation commissioner. besides, i am of the opinion that in case where there is inherent want of jurisdiction, the party aggrieved by the judgment or order cannot be prevented from challenging the legality of that order by filing appropriate petition including the appeal for getting the relief. in short, this appeal does not appear to be barred by the provisions of section 30 of the workmen's compensation act, 1923.15. so far as the merits of the appeal are concerned, the learned counsel for the appellant has submitted that the deceased murlidhar was not employed as a driver on the jeep in question and, therefore, he did not fall, within the definition of workman. it is further submitted by the counsel for appellant that the finding given by the workmen's compensation commissioner in this regard is without cogent reasons. in the instant case, neither party has produced any documentary evidence to show whether the deceased murlidhar was or was not the driver of the said jeep. the claimants did not produce any appointment order or any other document to show that the deceased was, working as driver on the monthly salary of rs. 1000/-. there is only oral evidence on which reliance has been placed by the claimants. the claimant no. 1 smt. savita w/o murlidhar has stated in her affidavit that her husband murlidhar was working as a driver on the jeep no. mdf-742 on the monthly salary of rs. 1000/- and that he had been employed by shri ramesh chandra purohit. in the verification column, it is stated that the contents of affidavit is based on her personal knowledge. during the cross examination, she did produce any appointment order and stated that her husband had been working as a driver with jeep in question for the last six months. at one place, she has stated that ramesh chandra himself had employed her husband as a driver on the jeep but there is nothing to indicate the source of her information. she has nowhere stated that ramesh chandra employed her husband in her presence. it is also not stated by her that any salary was paid by ramesh chandra in her presence. her evidence is inadmissible in view of section 60 of the evidence act. section 60 of the evidence act reads :-'oral evidence must, in all cases whatever, be direct; that is if it refers to a fact which could be seen, it must be the evidence of a witness who says he said it;if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;if it refers to a fact which could be perceived by any other sense or any other manner, it must be the evidence of witness who says he perceived it by that sense or in that manner;if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who hold that opinion on those grounds;provided that the opinions of experts expressed in any treatise commonly offered for sale, and the ground on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable;provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection.'16. in view of section 60 of the evidence act, it was necessary for smt savita to tell how she came to know that her husband was working as a driver with ramesh chandra on a monthly salary of rs. 1000/-. she has not disclosed the source of information and, therefore, her statement is not admissible as evidence.17. shri gopal das has filed his affidavit. in his affidavit, it has been stated by him that shri ramesh chandra had been employed as a driver on jeep no. mbf-742 on monthly salary of rs. 1000/-. in the verification clause, the contents of the affidavit have been verified on the personal knowledge. gopal das was cross-examined. neither in the affidavit nor in the cross-examination, he has disclosed the source of his information. he did not say that in his presence ramesh chandra employed murlidhar as a driver on monthly salary of rs. 1000/-. he does not say that in his presence murlidhar received any salary from ramesh chandra. the entire evidence of gopal das is inadmissible in view of the provisions of section 60 of the evidence act.18. shankar lal and abdul wahid have also filed their affidavits. in their affidavits, they have stated that murlidhar was employed as a driver with jeep no. mbf-742 on the monthly salary of rs. 1000/- per month. but the source of information has not been disclosed in the affidavit. abdul wahid was cross-examined regarding his contents of affidavit and in his cross-examination he has stated that he had not seen the appointment letter. it is further admitted by him that in his presence, ramesh chandra did not pay salary to murlidhar. the affidavits of these two persons are also inadmissible in view of the provisions of section 60 of the evidence act.19. for the reasons mentioned above, the affidavits filed by the respondents nos. 1 to 5 cannot be said to be sufficient to prove that murlidhar was working as a driver on the monthly salary of rs. 1000/- with ramesh chandra. ramesh chandra has categorically denied that he had employed murlidhar as a driver. ramesh chandra was cross-examined regarding the contents of his affidavit and there is nothing in his cross-examination to show that his statement has been shaken. it was only the burden of the respondents to prove that murlidhar had been employed as a driver on the jeep in question, by the non-petitioner no. 2 on the monthly salary of rs. 1000/- and thevespondents failed to discharge the burden of proof.20. learned workmen's compensation commissioner was, therefore, not justified in coming to the conclusion that the allegations made in the petition regarding the employment of murlidhar as a driver on the jeep in question was proved. since the claimants (respondents no. 1 to 5) failed to prove that murlidhar was working as a driver, employed by non-petitioner no. 2 ramesh chandra, it must be held that murlidhar was not a workman as defined in section 2 of the workmen's compensation act, 1923. consequently, it must be held that the petition before the workmen's compensation commissioner, udaipur was not maintainable and he had no jurisdiction to award the compensation.21. under section 167 of the motor vehicles act, where the death of, or bodily injury to, any person gives rise to a claim for compensation under this act and also under the workmen's compensation act, 1923 the person entitled to compensation may without prejudice to the provisions of chapter x claim compensation under either of those acts but not under both.22. since, i have come to the conclusion that murlidhar was not a workman within the meaning of section 2 of the workmen's compensation act, 1923, the petition before the workmen's compensation commissioner was not maintainable. in view of his finding, the bar imposed by section 167 o motor vehicles act does not appear to apply.23. with the above observations, this appeal is allowed. in exercise of powers conferred under order 41 rule 33 of c.p.c. the impugned judgment dated may 15, 1997 passed by learned workmen's compensation commissioner, udaipur in case no. 76/1989 against the appellant and the respondents nos. 6 and 7 is hereby quashed and set aside. in the facts and circumstances, it would be proper for the parties to bear their own costs. the appeal is disposed of accordingly.24. while parting with this appeal it may be pointed out that the assistant director, made an admission on behalf of the appellant before the workmen's compensation commissioner that the risk to the life of the deceased was covered by the policy because the policy was comprehensive and the deceased was holding a valid licence. in view of this admission, it is expected that necessary action shall be taken by the appellant for payment of compensation to the persons entitled to it without waiting for any further litigation.