National Insurance Company Ltd v. National Building Construction Corporation Ltd

By this appeal filed U/s 30(d) of the Workmen’s Compensation Act , the judgment and order dated 16.9.2003 passed by the Commissioner, Workmen’s Compensation, Guwahati in W.C.Case No, 75/1998 has been challenged by the appell ant. The Commissioner by the judgment and award dated 28.10.99 passed in W.C.Ca se No.75/1998 determined that the claimant/respondent and his wife namely Mst. J amia Bibi are entitled for compensation for the death of their son, Saidul Al i @ Ziyadul Islam, who was employed under the Sub-contractor, namely, Md.Tambir Siddique working for the National Building Construction Corporation Ltd (for sh ort ’NBCC’) for construction of SBI building at Khanapara. The deceased was a R aj Mistry(Mason) and was doing plaster work at the out side wall on the 4th s tory of the building. The platform erected of the bamboo and wood planks sudden ly collapsed and he fell down from that height to the ground. As a result , he r eceived grievous injuries on his person. He was taken to the Gauhati Medical Co llege and Hospital, Guwahati but on the same day he succumbed to his injuries. The Commissioner, Workmen’s Compensation considering the eviden ce, both oral and documentary, awarded a sum of Rs. 2,04,850/- to be paid to the claimant/respondent No.1 and his wife with interest at the rate of 12% per annum with effect from 8.9.98 and accordingly directed the respondent No.3, Nat ional Building Construction Corporation Ltd (for short ’NBCC’) to pay the said a mount of compensation together with the funeral expenses and interest thereon as computed. In the said judgment it has been observed by the learned Commissione r that (cid:28) I do not find it necessary to impose the liability on the O.P., Nationa l Insurance Company Ltd., as neither the claimant has given sufficient reasons t o implead it nor the employer NBCC asked for any immunity as such (cid:29). The awarded amount was also distributed within the respondent No.1 and his wife Mstt. Jamia Bibi on proportionate share (75 : 25) A simple petition was filed almost after 4(four) years from the day of the award by the NBCC disclosing that the Policy No.200100/48/98/800241 was valid from 8.9.98 to 7.12.98 for cover of the workmen but for lax, the polic y could not be filed in the proceeding. Mr. A. Ahmed, learned counsel for the appellant submited that in the application which was filed after long 4 years, from the date of the judgm ent and award, the NBCC no where stated or by any style indicated that their ap plication was for review. Even the said application was not properly verified. O n the basis of the said application, the Commissioner issued notice to the Natio nal Insurance Co. Ltd to appear and file their reply, if any. The National Insur ance Company Ltd on 16.9.03 filed their reply and stated that NBCC had no insura nce cover on the relevant day. By the said reply it was submitted that no modif ication or alteration was called for in the judgment and order dated 28.10.1999 passed by the Commissioner. No doubt , this application was not consistent to the provision of Rule 30 of the Workmen’s Compensation Act, 1942 whereunder It is categoricall y prohibited that the Commissioner shall make after pronouncement of the decisi on no cancellation and/or alteration of the judgment either except the clerical mistakes that appeared in the judgment, but the Commissioner passed a long ord er on 16.9.03 even without registering the said petition as review petition or o therwise. But the question of jurisdiction of the Commission was not raised by t he appellant at the time of hearing. There is no reflection in the impugned orde r. The learned counsel for the appellant before the workmen’s Compe nsation raised a question that the policy was obtained on the day of the acciden t. However, it was contended by the NBCC that premium was paid by Cheque to the insurer much prior to the day of the accident. The Commissioner has accordingly observed in the said judgment tnat the appellant received the Cheque No.191810 of S.B.I Guwahati dated 7.9.98 as payment of premium for the policy and howeve r the policy No. 200100/48/98/800241 and the related policy document were issue d w.e.f. 8.9.98 to 7.12.98 (both dates inclusive) for cover. On the basis of suc h observation, the National Insurance Company Ltd., the appellant was made liabl e to pay the compensation along with the ancillary costs within 30 days from the date of order. The said order dated 16.9.03 is under challenge in this appeal. The substantial question therefore is : Whether the Commissioner was within his bounds while passing the impugned order? Mr. A. Ahmed, learned counsel for the appellant submits that wit hout exercising the power of review, how such order can be passed by the Commis sioner. No such answer is available in the impugned judgment. He submitted that there is no express provision for review under the Workmen’s Compensation Act, 1 923, as amended upto date, except Section 6, which provides such jurisdiction t o the Commissioner for a very very limited purpose and the area of exercising su ch power is well-defined and restricted. The scope of jurisdictional power of t he Workmen’s Compensation can not be stretched for wielding the general powers of the review. As such the order dated 16.9.03 is palpably illegal and liable t o be struck down. Accordingly, the said order dated 16.9.03 is set aside. But f rom the LCRs, the original certificate of the Insurance Company is available. Th is court by on its own motion admited this document as there is no dispute about the genuiness of the said certificate as Ext.X, in exercise of power conferred by the Code of the Civil Procedure, 1908 under Order 41 Rule 27 as the addition al evidence. Now on assessment of that document it is found the said policy was effective from 8.9.98 to 7.12.98 (both dates inclusive) and the said policy was open for cover of the daily labourer. The premium money was deposited and the po licy was issued on the date of accident i.e. on 8.9.98. It is gathered from the Ext.X document that the policy had becom e effective from 12.00 hours (midnight) of 8.8.98 whereas the accident occurred at 14.00 hours on afternoon of 8.9.98 and as such the accident occurred within t he validity of the insurance coverage. Be that as it may, now this court is of the opinion that the ben efit for which the policy was opened must go to the victim of the accidental dea th of the workman even though the impugned order has been set aside hereunder. The appellant- National Insurance Company Ltd is directed to make payment of t he awarded amount with interest and the ancillary costs within 2(two) months fro m today without fail, so that the respondent No.1 and his wife get their proport ionate share ( 75 : 25) as was directed by the Commissioner, Workmen’s Compensat ion by the judgment and award dated 28-10-1999. With the observation and direction, this appeal is allowed to t he extent as indicated above. There shall be no order as to costs. Send down the LCRs forthwith.