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Judgment
Appellant is aggrieved by order dated 31.7.2023 in E.C.C.No.650/2016 on the files of the Employees Compensation Commissioner (Industrial Tribunal), Thrissur. Before the Commissioner, appellant was the second opposite party.
First respondent filed an application under Section 22 of the Employees’ Compensation Act, 1923 (mentioned henceforward as ‘the Act’ ), for compensation, averring that he was employed by the 2nd respondent herein as a driver of his autorickshaw bearing registration No.KL 8 Y 8215 and that on 1.5.2008, while he was driving the autorickshaw, a bus bearing registration No.KL 9 K 1793 hit the autorickshaw, resulting in an accident in which he sustained grievous injuries and permanent disability followed. According to him, he was being paid Rs.5,000/- as monthly wages during the period covering the date of the accident, and he was 37 years old as on the date of the accident.
Second respondent denied the alleged employer-employee relationship and contended that the autorickshaw was not under his ownership on the date of accident. He also contended that as per information obtained by him from the Regional Transport Officer, Thrissur, registered owner of the autorickshaw was the 4th respondent.
Appellant contended that it had issued a policy in favour of the 2nd respondent covering the autorickshaw bearing registration No.KL 8 Y 8215 for the period from 29.2.2008 to 28.2.2009. Nevertheless, the vehicle had no permit and fitness certificate as on the date of the accident and the driver had no valid driving license. There was no employer-employee relationship between the 1st and 2nd respondents. Other particulars stated in the application filed by the 1st respondent were also disputed. Third respondent did not appear before the Commissioner and was set ex parte. Fourth respondent contended that he was an unnecessary party to the claim and he had no connection with the vehicle involved in the accident and any knowledge about the accident. He further stated that he had an autorickshaw earlier and it was sold in the year 2008.
Evidence consists of depositions of AWs.1 and 2 and Exts.A1 to A9 as also Exts.R1 and R2. Report of the Medical Board was marked as Ext.X1.
Learned Commissioner framed five issues and analysed the pleadings and evidence. The Commissioner held that there was employer-employee relationship as contended by the 1st respondent and the vehicle was validly insured. Learned Commissioner also held that the 1st respondent sustained injuries in an accident arising out of and in the course of his employment. Loss of earning capacity of the 1st respondent was accepted as 35% and monthly income was taken as Rs.4,000/-. An amount of Rs.1,59,230/- was awarded as compensation, with interest at the rate of 12% from the date of accident. A cost of Rs.600/- was granted towards payment of court fee. Appellant company was directed to pay the amount.
The substantial question of law pressed at the time of hearing by the learned counsel for the appellant pertains to perversity alleged about the finding of the learned Commissioner regarding employer-employee relationship.
It was argued by the learned counsel for the appellant that there was no specific averment in the application filed by the 1st respondent about the employer. First opposite party in the application was shown as the owner and the third opposite party was described as the registered owner of the autorickshaw. There was no evidence to show that the first opposite party, the 2nd respondent herein, was the registered owner of the autorickshaw as on the date of the accident. Learned counsel further submitted that the finding of the Commissioner that as per Ext.A5 police report there was an agreement between the respondents 2 and 3 herein was not correct as no such agreement was produced before the learned Commissioner. Third respondent was the registered owner at the time of the accident and therefore the appellant was not liable to indemnify the 2nd respondent herein. As the policy was issued to the 2nd respondent and employer-employee relationship between the 2nd and 1st respondents was not established, the appellant is not liable to indemnify the 2nd respondent. He therefore submitted that the impugned order cannot be sustained.
Learned counsel for the 1st respondent contended that the 1st respondent was employed under the insured and hence the appellant company is liable to pay compensation, since there is no dispute regarding the policy. It was argued that there is no perversity in the conclusions of the learned Commissioner and hence the appeal is only to be dismissed. Learned counsel for the 2nd respondent submitted that there was no employer-employee relationship between the 2nd respondent and the 1st respondent and as on the date of accident, 4th respondent was the owner of the vehicle. Learned counsel for the 4th respondent contended that the 4th respondent had sold his autorickshaw in the year 2008 and was unnecessarily impleaded in the case.
Submission of the learned counsel for the appellant that there is no specific pleading in the application filed before the Commissioner regarding the employer is correct. However, the appellant had issued Ext.A9 policy in favour of the 2nd respondent. When the 1st respondent was examined, he asserted that he was employed under the 2nd respondent. Learned Commissioner noted that the police report corroborated the version of the 1st respondent regarding his employment in the autorickshaw. He had valid driving license. Hence, the Commissioner concluded that the 1st respondent was employed as driver of the autorickshaw bearing registration No.KL 8 Y 8215 by the person who had control and possession of the vehicle as on the date of accident. Having insured the vehicle and issued the policy in favour of the 2nd respondent, I am of the view that it is not open to the appellant company to take exception to the finding of the Commissioner that it had the liability to indemnify the insured. Learned Commissioner arrived at the conclusion that the 2nd respondent was the employer, after analysing pleadings and evidence of all contesting parties. In a claim for compensation under the Employees Compensation Act, Commissioner is the authority to analyse the evidence and arrive at factual conclusions. Only if there is patent perversity in the analysis of evidence, this Court can intervene. On an overall consideration of the inputs and on perusal of the order passed by the Commissioner, I do not find that any perversity can be attributed in the instant case with respect to the finding of the learned Commissioner called in question by the appellant. Therefore, I hold that the substantial question of law pressed at the time of hearing does not arise in this appeal. The appeal therefore fails and is accordingly dismissed.
Cross objection No.82 of 2024
The 1st respondent in MFA(ECC)No.49 of 2024, who was the claimant before the learned Commissioner, has preferred this cross objection. Before entering into the merits, it is essential to analyse whether the cross objection is maintainable.
The cross objection has been filed under Order XLI Rule 22 of the Code of Civil Procedure, 1908 (‘CPC’ for short). Therefore, it needs to be examined as to whether the said provision of the CPC applies to the proceedings under the Employees Compensation Act, 1923 (‘Act’ for short). Section 23 of the Act provides that the Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects. Further it is provided that the Commissioner shall be deemed to be a Civil Court for all the purposes of Section 195 and of Chapter XXVI of the Code of Criminal Procedure, 1973. There is no other provision in the Act regarding applicability of the provisions of the CPC to the proceedings under the Act.
Rule 41 of the Workmen's Compensation Rules, 1924 (‘Rules’ for short) reads as under:
“41. Certain provisions of Code of Civil
Procedure, 1908, to apply.—Save as otherwise expressly provided in the Act or these Rules the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 13 and 15 to 30: Order IX; Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII; and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, in so far as they may be applicable thereto: Provided that—
(a)for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him;
(b)the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions if he is satisfied that the interests of the parties will not thereby be prejudiced.”
The Rule specifies the provisions of CPC which shall apply to proceedings before the Commissioners, subject to the proviso. Hence, it can be inferred that no provisions of CPC other than those specified in Rule 41 would apply to the proceedings before Commissioners. There is no provision even in the Rules pertaining to applicability of the provisions of CPC to the appeals under the Act. Even if we proceed, assuming that appeals under Section 30 of the Act can be considered as continuation of the proceedings before the Commissioner, no provisions of CPC except those specifically made applicable under Rule 41 of the Rules can have any application to the appeals also. Hence, I hold that no cross objection under Order XLI Rule 22 of CPC can be filed in an appeal filed under Section 30 of the Employees Compensation Act, 1923. In the absence of any enabling provision in the Act and the relevant rules made thereunder as well, I hold that no cross objection is maintainable in appeals filed under Section 30 of the Act.
I find support for the above view from the following judgments of other High Courts:-
United India Insurance Company Limited v. Narinder Kour and Others [2020 SCC OnLine J&K 418]
ii) Dinesh Kumar Golechha v. Meena Bai Yadav and Others [2014 SCC OnLine Chh 262]
iii) Dwarku Devi v. Union of India [2011 SCC OnLine HP 6240]
iv) United India Insurance Company, Ltd. v. Smt.Dasari Lakshmi and others [2003 SCC OnLine AP 990]
In Narinder Kour and Others (supra), learned Single Judge of Jammu and Kashmir High Court, relying on the decisions of various High Courts, held as follows:-
“12.I have considered the rival contentions in the light of the provisions of the Act. It is true that Section 30 creates a right of appeal in favour of aggrieved party, be it employee or the employer and this right is subject to the condition that the appeal involves substantial questions of law for determination. Section 30 of the Act nowhere provides or even hints at the right of the respondents in the appeal to file cross objections. Needless to say that the provision for filing cross-objections in the appeal could be traced to Order-41 Rule-22 of the Code of Civil Procedure. The Employees Compensation Act being a complete code in itself provides only limited application of CPC. Rule 41 of the Employees' Compensation Rules, 1924, which provides for application of certain provisions of the Code of Civil Procedure to the proceedings before the Commissioner reads thus:—
“41.Certain provisions of Code of Civil Procedure, 1908 to apply. -- Save as otherwise expressly provided in the Act or these rules the following provisions of the first Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rule 9 to 13 and 15 to 30; Order IX; Order XII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII, and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, in so far as they may be applicable thereto : Provided that:
(a)for the purpose of facilitating the application of the said provisions the Commissioner may construct them with such alternations not affecting the substance as may be necessary or proper to adapt them to the matter before him;
(b)the commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provision, if he is satisfied that the interests of the parties will not thereby be prejudiced.”
13.From a bare reading of the aforesaid Rule, it clearly transpires that the rule making authority consciously made certain provisions of the Code of Civil Procedure applicable to the proceedings before the Commissioner. However, no provision of CPC was made applicable to the appeals under Section 30 of the Act. Absent applicability of CPC, particularly, the provisions of Order-41 Rule 22, it is difficult to concede the right of filing cross objections in favour of the respondents, contesting appeal filed under Section 30 of the Act.
14.Mr. Vishnu Gupta in support of his arguments has relied upon Dinesh Kumar Golechha v. Meena Bai Yadav, 2015 ACJ 941 and United India Insurance Co. Ltd. v. Dasari Lakshmi; 2005 ACJ 825. In the case of Dinesh Kumar Golechha (supra), a Single Bench of High Court of Chattisgarh has considered the issue at some length and concluded that absent the applicability of Order 41 of the Code of Civil Procedure to the appeals filed under Section 30 of the Act, cross objections filed by the respondents would not be maintainable. To the similar extent is the judgment of High Court of Andhra Pradesh in the case of Dasari Lakshmi (supra).
15.Similar question also fell for consideration before the Himachal Pradesh High Court in the case of Dwarku Devi v. Union of India, 2011 ACJ 2783 and Justice Deepak Gupta of Himachal Pradesh High Court, as then he was, who later became judge of the Supreme Court, also discussed the issue and decided against the maintainability of cross objections under the Act on the ground that the provisions of CPC, particularly, Order 41 Rule 22 were not made applicable to the appeals filed under Section 30 of the Act.
16.In view of the aforesaid, there is no escape from the conclusion that the cross objections in an appeal filed under Section 30 of the Act are not maintainable. Question no.(iii) is, thus, answered, accordingly.”
In Dinesh Kumar Golechha (supra), learned Single Judge of Chhattisgarh High Court referred to Rule 41 of the Workmen's Compensation Rules,1924 and held as under:-
“16.Whether the cross-objection filed by the insurance company in appeal preferred by the workman-claimant under section 30 of the Act of 1923 is maintainable? …………………………………………………………………………….
19.On a bare perusal of rule 41 of the Rules, 1924, it would appear that specific provisions of Code of Civil Procedure (for short ‘CPC’) such as contained in Order 5, rules 15 to 30 shall apply to the proceeding before the Commissioner and other provisions of the CPC have not been made applicable to the proceedings initiated under the Act of 1923 and, therefore, in my opinion, no other provisions can be made applicable to the proceedings under the Act of 1923 except as provided in the aforesaid rule 41 of the Rules of 1924 and since the said rule 41 does not provide making applicable Order 41 of CPC to the appeals under section 30 of the Act of 1923, therefore, the cross-objection filed by the insurance company under Order 41, rule 22 of the CPC in the appeal filed under section 30 of the Act of 1923 by workman would not be maintainable in absence of specific provisions making Order 41 of the Code of Civil Procedure applicable to the proceedings before the Commissioner under the Employee's Compensation Act, 1923.
20.The High Court of Madhya Pradesh in case of Ram Shiromani Mishra v. Shiv Mohan Singh, AIR 1997 MP 202, had an occasion to deal with an identical situation as to whether appeal under Order 43, rule 1(d) of the CPC would be maintainable if the application under Order 9, rule 13 of the Code of Civil Procedure is rejected by the Motor Accidents Claims Tribunal. Para 10 of the report held as under:
“(10)The rule 240 of ‘the Rules’ expressly states, unless otherwise provided in the Act or in those Rules, no Order of the First Schedule of CPC shall be applicable other than those mentioned in the list. The intention of the rule making authority is explicit. It did not want to burden the procedure of Claims Tribunal with all the provisions of First Schedule of CPC. Therefore, only a chosen few orders have been mentioned in rule 240 of ‘the Rules’. Once this aspect of the rule 240 is borne in mind, it would be crystal clear that the rule making authority omitted application of Order 43, rule 1 of CPC to the cases under Claims Tribunal. The omission deliberate or otherwise has to be respected. There is no other provision of Motor Vehicles Act, 1988 (hereinafter called ‘the Act’ for short) or the Rules which makes Order 43 of CPC applicable. Section 4(1) of CPC reads as under:
‘4. Savings.— (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force’.”
21.It is clear from the aforesaid section that the rules of procedure of special Tribunal or a court shall override the provisions of CPC. Thus the rule 240 of ‘the Rules’ by implication overrides the provisions of CPC and makes only certain provisions in the First Schedule applicable.
22.Thus, for the foregoing reasons, it is held that in an appeal preferred by the workman under section 30 of the Act of 1923, Order 41 of the Code of Civil Procedure would not be applicable and as such, cross-objection filed by the insurance company would not be maintainable.
23.Accordingly, cross-objection filed by the insurance company deserves to be dismissed as not maintainable.”
Similar thought was expressed by a learned Single Judge of the High Court of Himachal Pradesh in Dwarku Devi (supra). The learned Judge held as under:-
“8.However, rule 41 of the Workmen's Compensation Rules, 1924 reads as follows:
“41.Certain provisions of Code of Civil Procedure, 1908, to apply. —Save as otherwise expressly provided in the Act or these Rules the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order 5, rules 9 to 13 and 15 to 30; Order 9; Order 13, rules 3 to 10; Order 16, rules 2 to 21; Order 17; and Order 23, rules 1 and 2, shall apply to proceedings before Commissioners, insofar as they may be applicable thereto:
Provided that—
(a)for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him;
(b)the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions if he is satisfied that the interests of the parties will not thereby be prejudiced.”
9.A perusal of the aforesaid rule clearly shows that the rule making authority decided that certain provisions of Order 5, Order 9, Order 13, Order 16, Order 17 and Order 23 would apply to the proceedings before the Commissioners. Again this does not in any manner indicate that other than the sections of the Code of Civil Procedure specifically referred to, any other provision of the Code of Civil Procedure was made applicable. Therefore, there is nothing to show that the Code of Civil Procedure would apply to such cases.
10.In view of the above discussion, I am of the considered view that the cross-objections are not maintainable in an appeal filed under the Workmen's Compensation Act, 1923 and the same are rejected as being not maintainable.”
In Smt.Dasari Lakshmi and others (supra), a learned Single Judge of the Andhra Pradesh High Court made the following observation regarding the maintainability of cross objection:-
“44.All the provisions of the CPC cannot be applied, and in fact, will not apply to the proceedings under the said Enactment of 1923. Only prescribed provisions thereof, as provided by the Rules, framed under the said Enactment of 1923, only, will apply.
45.Rule 41 of the Workmen's Compensation Rules, 1924, framed under the said Enactment of 1923, prescribed, or, provide for, as to, what are the specific provisions of the CPC, that will apply to the proceedings under the said Enactment of 1923.
46.As can directly be seen therefrom, under that rule 41, the provisions, inter alia, of Order V, and some of the provisions of the Order IX, Order XIII, etc., only, will apply to the proceedings under the said Enactment of 1923.
47.The other provisions of the CPC are not made applicable to such proceedings, in view of that specific rule 41 of the said Rules of 1924.
48.So, therefore, no other provision of CPC can be applied to the proceedings under the said enactment of Workmen's Compensation Act, except, as in the aforesaid rule 41 of the said Rules of 1924.
49.So, therefore, because, the said rule 41 do not provide for application of Order XLI, CPC dealing with first appeals, much less rule 22 thereof, which prescribe, or, provide for, filing cross-objections, by the cross-objectors, etc., it cannot be applied, or taken, recourse to, in the proceedings under the said Enactment of 1923. So doing, will be exercising the authority without statutory prescription, or, authority.
50.Hence, the cross-objections filed in the present C.M.A. by the applicants, are unsustainable at fact and law, and this Court has no jurisdiction, to entertain, or, adjudicated thereupon, for want of statutory jurisdiction, and, hence, the cross-objections are liable to be rejected, ipso facto, out right, as such, in toto, without any further probing there into, and, hence, the cross-objections, are according, hereby, rejected.”
Section 30 of the Act confers a right to prefer appeal on all parties, with a rider that no appeal shall lie unless a substantial question of law is involved. Hence, a claimant, as in the instant case, not satisfied with the compensation awarded by the Commissioner, has also a right to file appeal. The cross objector, therefore, had the option of filing a separate appeal under Section 30 of the Act. Hence, whether the cross objection can be treated as an independent appeal is also a relevant question. Then the first proviso to Section 30(1) of the Act would indisputably apply and, unless a substantial question of law is involved, the appeal would not be maintainable. In this cross objection, no substantial question of law has been formulated. I therefore find that the cross objection is not maintainable and it cannot even be treated as an independent appeal, as no substantial question of law has been formulated.
Accordingly, the cross objection is rejected.