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2011 Supreme(Raj) 1465
(Rajasthan High Court)
Jaipur Bench
Oriental Insurance Co. Vs. Deviram & Ors. (Agarwal, J.)
HON'BLE PRASHANT KUMAR AGARWAL, J.
Oriental Insurance Co.Ltd.
Versus
Deviram & Ors.
S.B. Civil Misc. Appeal No. 3058 of 2008, decided on 23.12.2011
Amarnath Pareek, for Appellant;
Mohit Gupta, for Respondent Nos.1 to 6;
None present for Respondent No.7
Headnote:(a) Workmen's Compensation Act,1923, Sec. 3 and 4-A — Abatement of claim petition — During the pendency of the claim petition, the injured claimant died — Survival of claim petition on his legal representative or dependents — Held — Claim petition filed for compensation for the personal injuries but the liability to pay compensation not being a tortious liability — Claim petition cannot be said to have abated on death during pendency of claim petition. (Para 5)
¼d½ deZdkj izfrdj vf/kfu;e] 1923] /kkjk 3 o 4-d & nkok ;kfpdk dk mi'keu & nkok ;kfpdk yfEcr jgus ds nkSjku ?kk;y nkok drkZ dh e`R;q gqbZ & mlds fof/kd izfrfuf/k;ksa ;k vkfJrksa ij nkok ;kfpdk dk thfor jguk & vfHkfu/kkZfjr & nkok ;kfpdk 'kkjhfjd {kfr dh {kfriwfrZ gsrq nk;j dh xbZ Fkh ysfdu izfrdj lank; dk nkf;Ro dksbZ d"Vdkjh nkf;Ro ugha & nkok ;kfpdk ds yfEcr jgus ds nkSjku e`R;q gksus ij nkok ;kfpdk dk mi'keu gksuk ugha dgk tk ldrkA ¼in la[;k 5½
(b) Workmen's Compensation Act, 1923, Sec. 10 read with Limitation Act, 1963, Sec. 5 — Limitation for filing claim petition before Commissioner — Claim filed after 10 years from the date of accident — Period is within two years of the occurrence of the accident — Proviso to the Section provides that the Commissioner may entertain and decide any claim if he is satisfied that the failure to prefer the claim was due to sufficient cause — Proviso appears to be similar to Sec. 5 of the Limitation Act — Suit remained pending for more than 9 years before a wrong forum pursuing an alternative remedy on a wrong legal advise — Held — Claimant has been able to show that a sufficient cause prevented him in preferring the claim within the prescribed period of two years — It cannot be said that the claimant was negligent or inactive in pursuing the remedy available to him — Delay condoned.
(Para 5)
¼[k½ deZdkj izfrdj vf/kfu;e] 1923] /kkjk 10 lifBr ifjlhek vf/kfu;e] 1963] /kkjk 5 & vk;qDr ds le{k nkok ;kfpdk nk;j djus dh ifjlhek & nq?kZVuk dh frfFk ls 10 o"kZ i'pkr~ nkok nk;j fd;k & vof/k gS nq?kZVuk ds ?kfVr gksus ds nks o"kZ ds Hkhrj & /kkjk dk ijUrqd ;g micU/k djrk gS fd vk;qDr fdlh Hkh nkos dks xzg.k dj ldrk gS vkSj mls fofuf'pr dj ldrk gS ;fn mls ;g lek/kku gks tkrk gS fd nkok djus esa foQyrk ds ihNs i;kZIr gsrq Fkk & ;g ijUrqd ifjlhek vf/kfu;e dh /kkjk 5 ds leku gksuk izrhr gksrk gS & xyr fof/kd lykg ij oSdfYid mipkj ds fy, fdlh xyr eap ds le{k dk;Zokgh djus ij okn 9 o"kZ ls Hkh vf/kd le; rd yfEcr jgk & vfHkfu/kkZfjr &nkokdrkZ ;g n'kkZus esa leFkZ jgs fd nks o"kZ dks fu/kkZfjr vof/k ds Hkhrj nkok djus ls mls i;kZIr dkj.k us jksdk & ;g ugha dgk tk ldrk fd nkok drkZ mls miyC/k mipkj dh dk;Zokgh djus esa ykijokg ;k lqLr Fkk & foyEc ekQ fd;kA ¼in la[;k 5½
(c) Workmen's Compensation Act, 1923, Sec. 3, 4(1) — Liability of insurance company to pay interest — Insurance Company is not liable to pay interest for the period from the date of the accident i.e. 24.12.95 to the date on which intimation regarding accident was received by it — Held — From the date of accident to the date of intimation received by the appellant-Insurance company, the interest @ 12% per annum shall be paid by the employer. (Para 6)
¼x½ deZdkj izfrdj vf/kfu;e] 1923] /kkjk 3] 4¼1½ & C;kt dk lank; djus gsrq chek daiuh dk nkf;Ro & chek daiuh nq?kZVuk dh frfFk vFkkZr 24-12-95 ls ml frfFk rd tc mlus nq?kZVuk lEcU/kh lwpuk izkIr dh] dh vof/k rd dk C;kt dk lank; djus gsrq nk;h ugha & vfHkfu/kkZfjr & nq?kZVuk dh frfFk ls vihykFkhZ chek daiuh }kjk izkIr lwpuk dh frfFk rd 12% okf"kZd dh nj ls C;kt fu;ksDrk }kjk fn;k tk;sxkA ¼in la[;k 6½
vihy va'kr% Lohdkj dhA
2. The brief relevant facts for the disposal of this Civil Misc. Appeal are that Shri Devi Ram, who was employed as a driver on the vehicle (truck) bearing registration No.RNG-2665, owned by respondent-Shri Mehar Chand received serious injuries and as a result thereof both of his legs and one of his hand were amputated. In order to claim compensation, Shri Devi Ram filed a Civil Suit under the provisions of the Fatal Accident Act before Additional District Judge, Kishangarhbas which was registered as Civil Suit No.62/2004. That suit was filed on 21.3.96 and in that suit admittedly the appellant-Insurance Company was not made a party. During the course of that suit the injured-Shri Devi Ram filed an application under Order 23 Rule 1 read with Section 151 CPC with a prayer that he may be allowed to withdraw the suit and the same was allowed by the Court vide order dated 5.10.2005 and the plaint was returned with a liberty to Shri Devi Ram to file a claim petition before a competent Court. Thereafter, Shri Devi Ram filed the present claim petition under the provisions of the Act before the learned Commissioner on 10.11.2005 claiming therein compensation as well as interest and penalty amount. The appellant and respondent No.7 filed their respective reply and the learned Commissioner after recording evidence and hearing the parties passed the impugned judgment and award. It was ordered that the appellant-Insurance Company shall pay Rs.2,21,004/- as compensation and shall also pay interest @ 12% per annum on this amount from the date of accident i.e.24.12.95 till the amount is paid to the claimants. It is to be noted that during pendency of the claim petition, the claimant-injured-Shri Devi Ram died on 14.6.2007 and in place of him his dependents respondents No.2 to 6 were substituted. Feeling aggrieved, the appellant-Insurance Company is before this Court by way of this Appeal.
3. Although, to assail the impugned judgment and award in the memo of appeal several grounds have been taken but during the course of hearing of the appeal, the learned counsel for the appellant raised only the following grounds:-
(i) As during the pendency of the claim petition, the injured-claimant-Shri Devi Ram died on 14.6.2007 and as the claim was for the personal injuries sustained by him, with the death of the claimant, the claim petition abated and right to sue did not survive on his legal representatives or dependents and, therefore, the claim petition was liable to be dismissed as abated but the learned Commissioner without assigning any reasons allowed the respondents to continue the claim petition and ultimately wrongly allowed the claim petition in their favour. It was submitted that there was no previty of contract between the appellant-Insurance Company and the injured, who subsequently died during the pendency of the claim petition and the liability against the appellant being tortious liability, that liability came to an end with the death of the claimant. It was further submitted that in such matters, right to sue may survive only if the liability is contractual.
(ii) the claim petition was hopelessly time barred as it was filed before the Commissioner after 10 years from the date of the occurrence of the accident whereas according to Section 10 of the Act, the claim petition is to be preferred within two years from the occurrence of the accident. The learned Commissioner did not consider the point regarding limitation although from the facts available before him, it was very much clear that the claim pet
