Hon'ble Dr. Kaushal Jayendra Thaker, J.

1. This appeal, at the behest of the New India Assurance Co. Ltd. (hereinafter referred to as 'Insurance Company'), raises a question of law whether the Workmen Compensation Commissioner/Additional Labour Commissioner, Meerut (hereinafter referred to as 'Authority') had the power of review.

2. Certain facts would be relevant before we advert to the legal aspect whether the Authority had any power of review. In this case, it is an admitted position of fact, though disputed by the Insurance Company, that the details of the policy number were given by the claimant in the claim application itself mentioning that the vehicle of which the deceased was employed was insured with the present appellant. Unfortunately, this fact without being properly verified, the Insurance Company filed a denial reply that is how the Authority saddled the liability on the owner only.

3. It was the duty of the Insurance Company to come out with clean hands which unfortunately was not done by the Insurance Company. The apex court in National Insurance Company Ltd. vs. Jugal Kishor & Others, AIR 1988 SC 719 has held as follows:

"The attitude of not filing copy of policy of insurance is worth mentioning. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. The Supreme Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in cause to produce the said document and such party should not be permitted to take shelter behind abstract doctrine of burden of proof. This duty is greater in the case the instrumentalities of the state such as the appellant Insurance Company who are under an obligation to act fairly. In many case even the owner of the vehicle for reasons known to him does not chose to produce the policy or a copy thereof. It has to be emphasised that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence."

4. In this case immediately thereafter the owner who was saddled with the liability came for correction of the mistake. The Insurance Company again did not come with clean hand.

5. The entire reply was perused by the this Court. Had the Insurance Company with whom the vehicle was insured not taken such a pedantic stand of review? The authority had decided the matter as neither the Insurance Company nor the owner who are the best person to produce the policy did not produce the same. The owner seems to have been complacent that his vehicle was insured and he has already paid Rs. 45,000/- ex gratia to the each of the original claimants he take the case very lightly.

6. While going through the judgments of the first instance, it is very clear that despite the fact being brought to the notice of the Authority that there was already a policy in vogue the, Authority burst to decide the same as relying on the written statement of the Insurance Company.

7. Later on when the amount was ordered to be paid by the owner, he went before the Authority and it was only for production of the said amount he had already deposited the amount also as per the orders which is evident from the record on 24.10.2003 which is reproduce below:

^^mijksDr okn esa vkns'k fnukad „Š&ƒ„&„00„ ds fo:) izfroknh laŒƒ }kjk izkFkZuk i= fn;k x;k Fkk] ftl ij lquokbZ ds fy, i{kks dks cqyk;k x;kA izfroknh laŒ&ƒ }kjk vius izkFkZuk i= esa dfri; dFku of.kZr izLrqr djrs gq, nq?kZVuk esa fyIr okgu laŒthŒtsŒ&ƒ„ ch@Š‹†ˆ ds ikfylh dh ewy izfr nkf[ky djrs gq, dgk gS fd oknh i{k dks {kfriwfrZ nsus dk nkf;Ro izfroknh laŒ&2 chek daiuh dk gSA

oknh i{k }kjk Hkh ,d izkFkZuk i= izLrqr fd;k x;k] ftlesa muds }kjk vuqjks/k fd;k x;k gS fd ikfjr vkns'k fnukad „Š&ƒ„&„00„ esa vknsf'kr /kujkf'