2016 Supreme(HP) 1902

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, J.
National Insurance Co. Ltd. – Petitioner
Versus
State of Himachal Pradesh and Ors. – Respondents
CWP No. 1283 of 2006 a/w CWP No. 1788 of 2007
Decided On : 18-11-2016

Headnote:

WORKMEN'S COMPENSATION - REVIEW - POWER OF - NOT INHERENT - CAN BE CONFERRED ONLY BY LAW - REVIEW APPLICATION BEFORE TRIBUNAL MAINTAINABLE ONLY WHEN SOUGHT DUE TO PROCEDURAL DEFECT OR INADVERTENT ERROR COMMITTED BY TRIBUNAL TO PREVENT ABUSE OF ITS PROCESS - ELECTION UNDER SECTION 167 OF MOTOR VEHICLE ACT - CLAIMANTS HAVING CONSCIOUSLY ELECTED UNDER SECTION 167 OF MOTOR VEHICLE ACT ARE ONLY ENTITLED TO COMPENSATION AWARDED BY TRIBUNAL IRRESPECTIVE OF IT BEING COMPARATIVELY LESS THAN THE ONE PASSED BY COMMISSIONER OR EVEN THE INTEREST THEREIN BEING AWARDED AT A LESSER RATE BY COMMISSIONER.

Fact of the Case:

The deceased, who was the husband of respondent No. 3 and father of respondents No. 4 and 5 was engaged as work-charged Mate by the Public Works Department in Karchham Sub Division. On 15.6.2004, the deceased had gone by Bus to the headquarter and while coming back in a private bus owned by respondent No. 6 and insured with the petitioner Company, he met with an accident as the bus fell down in Sutluj river and was washed away. The dead body of the deceased was found near Nathpa on 6.7.2004. The employer of the deceased i.e., the Assistant Engineer, H.P.P.W.D, Karchham Sub Division submitted the accident report to the authorities concerned and copy of the same was also sent to the Court of learned Commissioner under the Workmen’s Compensation Act-cum-Land Acquisition Collector (in short ‘Commissioner’) vide endorsement dated 16.6.2004. The claimants thereof filed an application for compensation in Form-F under Rule 20 of the Workmen’s Compensation Rules and the said petition was not resisted by respondents No. 1 and 2 rather the liability was admitted on their behalf. Smt. Dev Mani - respondent No. 3 appeared as her own witness before the Commissioner and submitted various documents in support of her claim. The claim was admitted by the Udai Ram, Junior Engineer of the Division concerned and it was admitted that the compensation be paid to the claimants. After recording the evidence, learned Commissioner vide his award dated 23.2.2005 allowed the petition by awarding a sum of Rs. 3,38,880/- along with interest at the rate of 12% per annum w.e.f. 15.6.2004 to 23.2.2005 amounting to Rs. 28,299/- and directed the amount to be deposited within two months failing which the award was to carry interest at the rate of 12% till the same was deposited and in addition thereto a further sum not exceeding 50% of such amount was to be recovered as penalty. In the interregnum i.e. before actually filing the claim petition before the Commissioner, the claimants preferred a petition under Section 166 of the Motor Vehicle Act (in short ‘M.V. Act’) before the Motor Accident Claim Tribunal (in short ‘Tribunal’), Kinnaur, which was registered as MACT Case No. 51 of 2004. This petition was filed with respect to the same accident and with regard to the compensation for the death of Shri Shyam Sukh. This petition came to be decided on 15.3.2015 whereby a compensation of Rs. 3,47,040/- was awarded in favour of the claimants and the same was directed to be deposited within two months from the date of award failing which it was to carry simple interest at the rate of 9% per annum from the date of award till its realization. The award was passed against the owner of the vehicle i.e. respondent No. 6 on account of the vehicle being insured with the petitioner. It was ultimately the petitioner, who was held liable to indemnify the insured. In the later case the statement of the claimant was recorded on 28.2.2005 and even till then claimant did not disclose that the statement had already been recorded before the Commissioner under the Workmen’s Compensation Act. That being so, the petitioner was unaware of any award having been passed by the Commissioner under the Act. On coming to know about the award, the petitioner filed review petition before the Motor Accident Claim Tribunal. In the meanwhile, the State of Himachal Pradesh i.e. respondent No. 2 also filed review before the Commissioner for the review of the award dated 23.2.2005 on the ground that petitioners have already been awarded compensation by the Commissioner. On 20.5.2006, the Commissioner recorded the statement of the claimant regarding the option of claim and the claimants by way of a joint petition under Section 151 C.P.C. stating therein that they wish to receive compensation under the award passed by the Tribunal and not from the Commissioner. Commissioner on the basis of such statement passed an order on 26.8.2006, which reads thus:- “26.8.2006 Case called. Present: Shri Liak Ram Claimant Shri Rajiv Kumar JE PWD for PWD Shri H.K. Sharma, for NIC. The claimants stated on oath and also through their reply that they have preferred claim under MACT-cum-District Judge, Rampur and do not want to get compensation from Commissioner WC Act, though the award under WC Act has already been announced on 23.2.2005 in favour of the claimants. But the claimants do want to get compensation under MACT from D.J., Rampur. The claimants cannot get claim-compensation from both the forum. Thus, in view of the option of claimants the award passed by this Forum is directed not to be executed or enforced. The amount of money deposited by the respondent be returned to them through Bank draft. Announced. Sd/- Commissioner, Workmen’s Compensation Act.” It is this order which found the subject matter of CWP No. 1283 of 2006. After filing of the aforesaid writ petition CWP No. 1283 of 2006, the review petition filed by the petitioner came up for consideration before the Tribunal, however, the Tribunal vide its order dated 3.7.2007 held the review petition to be not maintainable and accordingly dismissed the same, which has given rise to CWP No. 1788 of 2007.

Finding of the Court:

The Commissioner had no power to review his earlier order and after having announced his award, he ceased to have any jurisdiction and had become ‘functus-officio’ as he has no jurisdictional authority to review his order as the power of review is not inherent power and had otherwise not been conferred upon him by the statute i.e. Workmen’s Compensation Act. The claimants having consciously elected under Section 167 of the M.V. Act are only entitled then irrespective of it being comparatively less than the one passed by the Commissioner or even the interest therein being awarded at a lesser rate by the Commissioner.

Issues: Whether the Commissioner had the power to review his earlier order. Whether the claimants having consciously elected under Section 167 of the M.V. Act are only entitled then irrespective of it being comparatively less than the one passed by the Commissioner or even the interest therein being awarded at a lesser rate by the Commissioner.

Ratio Decidendi: The power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to the notice from which it could be covered that the government had power to review its own order. If the government had no power to review its own order, it is obvious that its delegate could have reviewed its order. The ratio laid down in the aforesaid judgment was thereafter followed by this Court in National Insurance Co. Ltd. vs. Khub Ram & Anr., 2015 4 ILR 488.

Final Decision: The petitions are dismissed, leaving the parties to bear their own costs.