Point of law: A claimant can apply before the Commissioner having jurisdiction over the area where the claimant resides, and it is not always necessary to prefer a claim petition where the accident has taken place. This is for the facility of the workmen and advances the cause of welfare of the workmen. Therefore, the view taken by the Gauhati High Court in the impugned order that the claim petition could only be filed at the place where the accident had taken place, cannot be sustained. Section 21 (1)(b) read with its proviso is a beneficial legislation for the welfare of the workmen and by the above, interpretation, it will advance the cause of the workmen. Therefore, we are of the opinion that the view taken by the Gauhati High Court in the impugned order cannot be sustained and accordingly we set aside the impugned order.

JUDGMENT :

1. Heard learned counsel for the appellant.

2. Present appeal has been filed challenging the award dated 16.7.2020 passed by Commissioner/Deputy Labour Commissioner, Gorakhpur in E.C. Case No. 79 of 2015.

3. Challenging the impugned award submission is that in view of the provision of Section 21 (1) (b) of the Employee's Compensation Act, 1923 (hereinafter referred to as the Act) learned Commissioner at Gorakhpur did not have the jurisdiction to decide claim petition inasmuch as the claimants are resident of district Siwan and the accident had also taken place in district Siwan. The vehicle was also insured by the branch office of the appellant-Company at district Siwan in the State of Bihar. It was further submitted that even in her statement the claimant no. 1 had stated that she has come from district Siwan and therefore, the claimants are not resident of Gorakhpur. Submission, therefore, is that the amendment is totally without jurisdiction.

4. It was further submitted that no notice under Section 10 of the Act was given to the Insurance Company and as such the claim petition was not maintainable. He has drawn attention to the substantial questions of law framed in the present appeal, which are quoted as under:-

"A. Whether the finding recorded by the Commissioner Employee compensation while deciding preliminary issue is illegal, erroneous and misappraisal of the records?

B. Whether the present claim petition was not maintainable as the learned Commissioner lacked jurisdiction in view of Section 21 of the Act?

C. Whether analogy derived by the Commissioner Employees Compensation Act while deciding preliminary issue is perverse and based on no reasoning?

D. Whether in the absence of notice under section 10 of the Employees Compensation Act the claim petition is maintainable without any prayer for waiver of the statutory notice?"

5. Submission, therefore, is that the claim petition itself was not maintainable in absence of notice under Section 10 of the Act without there being any prayer for waiver of the same and that in any case in view of Section 21 (1)(b) of the Act the Tribunal at Gorakhpur was coram non judice. Submission is that the impugned award is, therefore, without jurisdiction.

6. I have considered the submissions and have perused the record.

7. Before proceeding further it would be relevant to note Section 10 and Section 21 (1) (b) of the Employee's Compensation Act, 1923, which are quoted as under:-

"10. Notice and claim.-(1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years] of the occurrence of the accident or, in case of death, within two years] from the date of death:]

Provided that, where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the workman was continuously absent from work in consequence of the disablement caused by the disease:

Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the workman to absent himself from work, the period of two years shall be counted from the day the workman gives notice of the disablement to his employer:

Provided further that if a workman who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected:]

Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment