JUDGMENT :

Heard Mr. S Chamaria, learned counsel for the petitioner. Also heard Mr. S Chakraborty, learned amicus curiae for the respondents.

2. The present petition has been filed challenging the proceeding initiated by the learned Commissioner, Employees Compensation Claims Tribunal, Dhubri in E.C. case No. 02/2019 by issuing on notice dated 09.05.2017. By the said notice, the petitioner/ proprietor of the petitioner has been asked to show cause as to why the amount claimed by the respondent as compensation for the death caused to employed husband of the petitioner shall not be paid.

3. Though notices were issued in the present prosecution, however, the claimant i.e. the wife of the deceased has not appeared before this court. In that view of the matter, this court requested Mr. S Chakraborty, learned counsel to assist the court, who has readily accepted such request. Accordingly, Mr. Chakraborty has advanced his argument on behalf of the said respondent.

4. The background fact as discernible from the annexure 8, which is the petition filed for compensation under the provision of Employees Compensation Act, 1923 by the respondent No. 2 are as follows:

(I) The respondent No. 2 is the widow of deceased Dhanesh Ray @ Dhaneshwar Ray, who was an employee under the present petitioner.

(II) According to the claimant on 05.12.2016 at about 2 p.m. while her husband was on duty and was working at the industry he met with an accident due to the burst of buffer of the engine and sustained multiple grievous injuries including head injury, on his person. Though, her husband was immediately admitted at Narayana Bafna Hospital, Amingaon, however, later on he succumbed to his injury on 06.12.2016.

(III) Thereafter, according to the claimant, she requested the petitioner through Advocate’s notice to pay a compensation of Rs. 15 Lakhs under Section 10 of the Employees Compensation Act, 1923.

(IV) It is her further case that though a reply was made by admitting the accident, however, it was replied that already Rs. 1 Lakh has been paid to the claimant being the wife of the deceased.

(V). She further contends that the employer of her husband is still liable to pay compensation to the petitioner within one month from the date of accident in terms of the provisions of Employees Compensation Act, 1923 and in default liable to pay penalty and interest. Accordingly, a claim of Rs. 15 Lakhs was made.

5. On receipt of such claim, E.C. Case No. 02/2019 was registered and notice was issued on 09.05.2019 asking the present petitioner to appear before the learned Commissioner on 28.06.2019 and to show cause/ file objection. Without filing such objection, the present petitioner has straightway approached this court by taking the plea that there is a legal embargo under Section 53 of the Employees State Insurance Act, 1948 and it is the case that in the reply of the legal notice, said embargo was specifically made known to the respondents.

6. Reiterating the same, Mr. Chamaria submits:

(I) That under Section 53 of the Employees State Insurance Act, 1948, there is a bar of payment of compensation, when a person is insured under Employees State Insurance Act, 1948. Therefore, Mr. Chamaria contends that as the husband of the claimant was receiving benefit under the Employees State Insurance Act, 1948 at the hands of the petitioner, therefore, the embargo under Section 53 will come and the learned Commissioner shall have no jurisdiction to entertain such plea.

(II). The further contention of Mr. Chamaria is that the claim filed by the respondent No. 2 is barred under Section 10 of the Employees Compensation Act, 1923 as the claim has been filed beyond the period as prescribed under Section 10 of the Employees Compensation Act, 1923.

(III). The further pleaded case and contention of Mr. Chamaria is that the petitioner has already settled the claim of compensation through an agreement, which is annexed at annexure 1 to the petition and in term of the said agreement, the claima