Oriental Insurance Co. Ltd vs Shanthi And Others

M.Duraiswamy, J

Challenging the order passed in I.A.(SR).No.4781 of 2005 in W.C.No.112 of 2004 on the file of the Deputy Commissioner of Labour - II, Teynampet, Chennai, the Insurance Company has filed the above Civil Revision Petition.

The respondents 1 to 4 filed a claim petition in W.C.No.112 of 2004 on the file of the Commissioner of Workmen Compensation - II, Chennai (before the Deputy Commissioner of Labour - II, Chenni) claiming compensation for the death of one Soundararajan in an alleged accident which occurred on 05.10.2003 during the course of his employment under the 5th respondent.

According to the respondents 1 to 4, the deceased Soundararajan was a lorry driver earning Rs.5,000/- per month and he was driving the lorry bearing Registration No.TN-05-C-9559 and in the course of his employment, when he was driving the lorry from Mangalore to Chennai, via, Udipi, near Penambur Beach Cross Road, he parked the vehicle and when he was crossing the road to have his supper at about 08:30 pm, he was hit by another vehicle bearing Registration No.KA-19-A-7117 and died on the way to the hospital.

The Deputy Commissioner of Labour, by his order dated 23.11.2004, awarded a compensation of Rs.3,39,800/- with interest. Challenging the award passed by the Deputy Commissioner of Labour, the petitioner/Insurance Company filed an appeal in C.M.A.No.1163 of 2005 before this Court and the Division Bench of this Court, by order dated 15.04.2005, dismissed the appeal and confirmed the order of the Deputy Commissioner of Labour. While dismissing the appeal, the Division Bench rejected the contention of the Insurance Company that the deceased was on leave on the fateful day and therefore, the accident has not taken place during the course of the employment. Further, the Division Bench observed that there can be no dispute that the deceased had died in the course of the employment since there was no occasion for him to be at Penambur Beach Cross Road transporting the goods from Mangalore to Chennai, via, Udipi, unless he has been driving the lorry. Further, the Division Bench observed that the insured lorry was found to be present near Penambur Beach Cross Road transporting goods from Mangalore to Chennai, via, Udipi and the deceased was working as lorry driver of the lorry bearing Registration No.TN-05-C-9559 belonging to the 5th respondent, which is insured with the petitioner/Insurance Company.

After the dismissal of the appeal by the Division Bench of this Court on 15.04.2005, the petitioner/Insurance Company filed an application before the Deputy Commissioner of Labour - II, Chennai to condone the delay of 133 days in filing a petition to re-call and review the order passed by the Deputy Commissioner of Labour in W.C.No.112 of 2004. In the affidavit filed in support of the petition, the petitioner has stated that the deceased was not in employment on the fateful day and that the claimants have made fake claim by colluding with the other respondent and by furnishing wrong address in the claim petition.

So far as the issue whether the deceased had died during the course of employment or not, was already decided by the Division Bench of this Court in C.M.A.No.1163 of 2005 wherein the Division Bench rejected the contention of the Insurance Company that the deceased was on leave on the fateful day and therefore, the accident has not taken place during the course of employment.

The learned counsel for the petitioner, in support of his contention, relied upon a judgment reported in 2000 3 SCC 581 [United India Insurance Co. Ltd., Vs. Rajendra Singh & Ors.] wherein the Hon'ble Supreme Court held that no Court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect very basis of the claim.

Though there is no dispute with regard to the ratio laid down by the Hon'ble Supreme Court in the above referred judgment, since the facts and circumstances of the present case are completely different, the said ratio cannot be applied to the present case.

As already stated, in the case on hand, the issue now raised by the petitioner in the application filed before the Deputy Commissioner of Labour was already considered by the Division Bench of this Court in C.M.A.No.1163 of 2005 and a specific finding was also given by the Division Bench. In such a case, when the Division Bench had specifically rejected the contention of the petitioner, the petitioner/Insurance Company cannot re-agitate the issue before the Deputy Commissioner of Labour and file an application to re-call the order, without obtaining liberty from the Division Bench, which was already confirmed by the Division Bench.

The Deputy Commissioner of Labour, by order dated 26.05.2005, rejected the application filed by the petitioner stating that the appeal filed by the Insurance Company was already dismissed by the Division Bench of this Court. For the reasons stated above, I do not find any error or irregularity in the order passed by the Deputy Commissioner of Labour. The Civil Revision Petition is devoid of merits and the same is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.