2011 Supreme(Kar) 286

2011 (4) KCCR 3352
KARNATAKA HIGH COURT CIRCUIT BENCH AT DHARWAD
Aravind Kumar, J
The Section Officer, HESCOM Ltd., and Others-Appellant
Versus
Smt. Parawwa and Others-Respondents
Regular First Appeal No. 3001 of 2010,
Decided on : 21.4.2011

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 9: [Aravind Kumar, J] Bar on exclusive jurisdiction of the Civil Court - Held, Section 9 of C.P.C empowers Civil Court to try all suits of civil nature except the suits, the cognizance of which are expressly or impliedly barred. Civil Court would not be entitled to try the subject matter over which it has not jurisdiction. A bar on exclusive jurisdiction of Civil Court should not be readily inferred. Plea regarding exclusion of Civil Courts jurisdiction will have to be examined with reference to that particular enactment and find out whether such exclusion Clause is found in the enactment and if the answer is in affirmative then Civil Courts jurisdiction would be excluded and if the answer is in negative Civil Courts jurisdiction would be available for being invoked. Further, A combined reading of sub-Section (5) of Section 3 and sub-Section (2) of Section 19 of Workmen’s Compensation Act, 1923 it would emerge that a Suit before Civil Court would not be maintainable under two eventualities namely: (1) If the injured has already instituted a claim for compensation in respect of injuries sustained by filing a claim petition before the Commissioner. (2) If there is an agreement between employee and employer for payment of compensation in respect of injury for payment in accordance with provisions of the Act. As otherwise, the jurisdiction of Civil Court does not get excluded. - Thus, the cognizance by the Civil Court would be barred in regard to the matters as enumerated in sub-Section (2) of Section 19. They are settling deciding or dealing with any question and enforcing any liability incurred under the Act. Thus, two requirements which needs to be satisfied by the Commissioner to act under the Act are - (i) A party must sacrifice or forego their right under the common law. (ii) The facts giving jurisdiction to the Commissioner to decide and settle such disputes as they would come within the ambit pf the Act must also exist side by side. When these two conditions are strictly fulfilled the Act would bar the jurisdiction of Civil Court on those aspects, namely settling, deciding and dealing with any question involved in the proceeding. Thus, the scope and scheme of this provision would not take away from the Civil Court its jurisdiction to give relief in part, but to provide alternate optional remedy for certain classes of person in certain circumstances and for certain events occurring. The intention of the legislature is not to take away the jurisdiction of the Civil Court and for the limited purpose of settling, deciding and dealing which are expressly enumerated in sub-Section (2) of Section 19 the jurisdiction of the Civil Court is excluded.

       CODE OF CIVIL PROCEDURE, 1908 - Section 96: [Aravind Kumar, J] Regular First Appeal - Plea not raised before the Trial Court, whether can be raised in an Appeal under Section 96 of C.P.C - Held, A plea not raised before the Trial Court cannot be raised for the first time during the hearing of an appeal under Section 96 of CPC. On facts, held, Admittedly no plea has been raised by the Defendants 1 to 3 in the written statement contending that compensation claimed by the Plaintiffs either to be excessive or exorbitant. The pleadings laid before the Court of first instance being the foundation upon which the parties would be entitled to develop their case if found to be deficient or unavailable any amount of plea raised before the Appellate Court would be of no avail.

       TORTS - Suit for damages: [Aravind Kumar, J] Appeal against decree in Suit for Damages filed by the Legal heirs of a deceased employee who died due to electrocution Principle of "Construction ut res-magis Valeat - quam - pereat" - Held, If the choice is between two interpretations narrower of which would fail to achieve the manifest purpose of legislation such construction should be avoided since it would reduce the legislation, to futility and should rather accept such bolder construction for bringing about effective result. A combined reading of sub-Section (5) of Section 3 and sub-Section (2) of Section 19 of Workmens Compensatioin Act, 1923 it would clearly go to show that it does not take away jurisdiction of Civil Court to grant relief in tort since sub-Section (5) of Section 3 iof the W.C. Act ndicates that workmen has option to claim compensation either under Workmen Compensation Act or can take recourse before Civil Court for damages. Where death occurs and it gives right to claim compensation by legal heirs of deceased under common law such party would be entitled to claim compensation under either of the laws but not under both. Embargo would surface under two eventualities viz., (i) if a claim petition has already been instituted (ii) if there is agreement between "employer and employee" to go before Workmen’s Compensation Commissioner as otherwise choice is left to the person entitled to seek compensation to choose the forum namely whether he would seek remedy available under common laws or invoke the provisions of Workmen Compensation Act. Further, When the words used in a statute there is doubt harmonised with the subject enactment, the meaning of words as found in the provision is to be understood in the background with which the object of the Act is to be attained or achieved. Golden Rule principle is a very useful role in the construction of a statute to adhere to the ordinary meaning of words used unless it is at variance with the intention of legislature or it leads to manifest absurdity then only the language can be varied or modified while so interpreting a statute and not otherwise. Appeal dismissed.

       WORKMEN’S COMPENSATION ACT, 1923 - Section 3(5): [Aravind Kumar, J] Employer’s liability for compensation - Held, The words used in sub-Section (5) of Section 3 of Workmen’s Compensation Act, i.e., in Clause (a) is "has instituted a claim". At this juncture it would be necessary to examine the word "Instituted" as used in Clause (a) of sub-Section (5) of Section 3 which means setting on foot an enquiry. If a workman has filed a claim petition and withdraws it before the enquiry started, it cannot be construed as "instituted". Institute means to initiate something or cause it to begin or commencement. - Plaintiffs in the instant case by receiving the money deposited by the employer, through Commissioner for Workmen it cannot be held or construed as claimants had elected the forum under the Workmen’s Compensation Act. Further held, The exclusion of Civil Court’s jurisdiction is to the extent of bar created under sub-Section (2) itself and there is no absolute bar for invoking jurisdiction of Civil Court to enforce the claim for tort. Thus, in order to reject a claim or negative a claim made under common law, it must be shown that the person entitled to compensation or his or her legal heirs have already made a claim for compensation under Workmen’s Compensation Act by way of election of a Forum. Thus, a voluntary deposit made by an employer under Section 8 of Workmen Compensation Act to absolve itself/himself/themselves from any penal consequences flowing on account of its non compliance cannot be termed as claim petition deemed to have been instituted by the legal heirs of the deceased. Yet another factor which requires to be noticed is an unscrupulous employer by paying any paultry sum to a gullible employee cannot contend that claim of a workmen has been satisfied and it is in this background that Section 8 lays down format for deposit of compensation payable by an employer when an employee meets with an accident. The object being that unscrupulous employer should not be allowed to take undue advantage of the ignorance of an employee by making paultry payment. Even is such circumstances, the right of workmen is not scuttled by virtue of Section 10 of Workmen Compensation Act and workmen o his legal heirs of deceased workmen would be entitled to lodge a claim petition and thereby initiate proceedings by electing the Forum.

       WORKMEN’S COMPENSATION ACT, 1923 - Section 19(3); [Aravind Kumar, J] Compensation deposited by the employer in discharge its obligation under the Act, whether would prevent the workmen or his legal heirs from claiming compensation by way of invoking common law - Held, Compensation has been deposited by employer in discharge of its obligation under Workmen’s Compensation Act, 1923. Employer depositing the amount would not tantamount to filing or instituting a claim by employee or legal heirs of deceased employee and thereby it cannot be held that they have submitted to the jurisdiction of Commissioner for Workmen’s Compensation under said Act by choosing the Forum. By reading of proviso to sub-Section (2) of Section 19 it would nowhere throw any light to hold that Commissioner can adjudicate upon the question of personal negligence or willful act of the employer or negligence by some persons for whose act or default, employer would become responsible and grant relief under the Workmen’s Compensation Act. The only issue or question the Commissioner would examine is to consider whether the injury or death occurred to the workmen arose out of and in the course of his employment and to what amount of compensation workmen or his legal heirs would be entitled to . Thus, Civil Court functioning under common law or general law and Commissioner working under Workmen’s Compensation Act would operate in a totally different and distinct fields and they do not overlap with each other. - On facts, held, In the instant case, the legal heirs of the deceased had not instituted a claim nor they have approached Commissioner for Workmen’s Compensation for adjudication of their claim. It is the employer to discharge its legal obligations as envisaged under Section 8 of the Workmen’s Compensation Act had deposited amount calculated as per Scheduled IV of Workmen’s Compensation Act. On notice being issued of such deposit, legal heirs of deceased workmen have sought for payment of the amount. Thus, mere withdrawal of the amount deposited or receipt of money from the Commissioner deposited by an employer in discharge of his statutory obligation it would not indicate or go to show that legal representatives of deceased workmen have chosen a forum which consequently excludes the jurisdiction of Civil Court. - In these circumstances, it cannot be held that Plaintiffs were not entitled to file a suit for damages before Civil Court or it cannot be held that Civil Court had no jurisdiction to entertain the suit. - Conclusion arrived at by the Trial Court that deceased Sontannavar died due to electrocution in the alleged fatal accident on account of the negligence of the defendants irrespective of the fact as to whether Defendants 4 and 5 were responsible for the said fatal accident the principles of strict liability would apply and as such the finding of the Trial Court is based on sound appreciation of evidence which does not call for any interference.

       CODE OF CIVIL PROCEDURE, 1908 - Section 9: [Aravind Kumar, J] Claim for compensation - Jurisdiction of Civil Court - The workmen though is entitled to institute his claim for damages in respect of injuries sustained by him or by the legal heirs of deceased workmen in a civil Court by filing a civil suit, settlement of such claim would quiet naturally take a long period and as such the legislature in its wisdom thought fit to provide a separate speedy cheap forum to the workman or his dependants for settlement of compensation and thus created a special legislation that is Workmen’s Compensation Act, 1923. Thus, the intention of the legislature is not to take away the jurisdiction of the Civil Court and for the limited purpose of settling deciding and dealing which are expressly enumerated in sub-section (2) of Section 19 the jurisdiction of the Civil Court is excluded. Hence a suit is maintainable.

       EMPLOYEES’ COMPENSATION ACT, 1923 - Section 3: [Aravind Kumar, J] Claim for compensation - Death due to electrocution - Deceased suffered death due to electric shock in discharge of official duties due to negligence and mischief of co-employees - Held, Irrespective of the fact as to whether co-employee were responsible for the said fatal accident the principles of strict liability would apply. Employer is liable to pay compensation.

       EMPLOYEES’ COMPENSATION ACT, 1923 - Sections 19(2) & 3(5) & Civil P.C. (5 of 1908), Section 9: [Aravind Kumar, J] Claim for compensation - Jurisdiction of Civil Court - The workmen though is entitled to institute his claim for damages in respect of injuries sustained by him or by the legal heirs of deceased workmen in a civil Court by filing a civil suit, settlement of such claim would quiet naturally take a long period and as such the legislature in its wisdom thought fit to provide a separate speedy cheap forum to the workman or his dependants for settlement of compensation and thus created a special legislation that is Workmen’s Compensation Act, 1923. Thus, the intention of the legislature is not to take away the jurisdiction of the Civil Court and for the limited purpose of settling deciding and dealing which are expressly enumerated in sub-section (2) of Section 19 the jurisdiction of the Civil Court is excluded.

        A combined reading of sub-section (5) of Section and sub-section (2) of Section 19 would clearly go to show that it does not take away jurisdiction of Civil Court to grant relief in tort since sub-section (5) of Section 3 indicates that workmen has option to claim compensation either under workmen’s Compensation Act or can take recourse before Civil Court for damages. Where death occurs and it gives right to claim compensation by legal heirs of deceased under common law such party would be entitled to claim compensation under either of the laws but not under both. Embargo would surface under 2 eventualities viz. (i) if a claim petition has already been instituted (ii) if there is agreement between "employer and employee" to go before Workmen’s Compensation Commissioner as otherwise choice is left to the person entitled to seek compensation to choose the forum namely whether he would seek remedy available under common law or invoke the provisions of Workmen’ a Compensation Act.

        In order to reject a claim or negative a claim made under common law, it must be shown that the person entitled to compensation or his or her legal heirs have already made a claim for compensation under Workmen’s Compensation Act by way of election of a Forum. Thus, a voluntary deposit made by an employer under Section 8 of Workmen’s Compensation Act to absolve itself/himself/themselves from any penal consequences flowing on account of its non-compliance cannot be termed as claim petition deemed to have been instituted by the legal heirs of the deceased.

        If a workman has filed a claim petition and withdraws it before the enquiry started, it cannot be construed as "instituted". Institute means to initiate something or cause it to begin or commencement.

        The object being that unscrupulous employer should not be allowed to take undue advantage of the ignorance of an employee by making paltry payment. Even in such circumstances, the right of workmen is not scuttled by virtue of Section 10 of Workmen’s Compensation Act and workmen or his legal heirs of deceased workmen would be entitled to lodge a claim petition and thereby initiate proceedings by electing the Forum.

        Thus, mere withdrawal of the amount deposited or receipt of money from the Commissioner deposited by an employer in discharge of his statutory obligation it would not indicate or go to show that legal representatives of deceased workmen have chosen a forum which consequently excludes the jurisdiction of Civil Court. In these circumstances, it cannot be held that plaintiffs were not entitled to file a suit for damages before Civil Court or it cannot be held that Civil Court had no jurisdiction to entertain the suit.