Satnam Kaur and others vs Punjab Agro Industries Corporation Limited

Gokal Chand Mital, J.—Tara Singh died in an accident in the year 1977 as an employee of the Punjab Agro Industries Corporation Limited (hereinafter referred to as ''the Corporation'') while on duty. His widow and two minor daughters filed a claim application under the Workmen''s Compensation Act, 1923, before the Workmen''s Compensation Commissioner, Rupnagar (hereinafter referred to as ''the Commissioner'') The claim application was opposed by the Corporation and, after contest, by order dated 11th of March, 1980, Rs. 25,100/- were allowed as compensation to the widow and two minor daughters, besides costs etc. by the Commissioner. The claimants took out execution of the aforesaid order, in pursuance of which the Corporation deposited Rs. 23,238/- (inclusive of costs etc.) with the Commissioner on 27th of September, 1980. Before the amount could be paid to the claimants, the Corporation filed objections on 5th of January, 1981, before the Commissioner to the effect that the deposited amount be not paid to the claimants as they had already been allowed compensation of Rs. 30, 000/- on account of the same accident by the Motor Accident Claims Tribunal (hereinafter referred to as ''the Tribunal''). The claimants opposed the objections of the Corporation. By order dated 31st October, 1981, a COPY of which has been annexed with the petition as Annexure P-6, the Commissioner allowed the objections and dismissed the execution application filed by the claimants in view of the fact that the claimants had already been paid Rs. 30,000/- as compensation for the same accident by the Tribunal by award dated 28th of February, 1979. In accepting the objections of the Corporation, reliance was placed on section 110--AA of the Motor Vehicles Act, 1939 (hereinafter referred to as ''the Act'') as also on Trading Corporation, New Delhi v. Nirmala Devi 1980 A.C.J. 230.

The claimants have come to this Court in revision petition under Article 227 of the Constitution of India read with section 115 of the Code of Civil Procedure.

After hearing the Learned Counsel for the parties, I am of view that this revision petition deserves to succeed on the following three grounds :--

(i) There was no power of review with the Commissioner.

(ii) Even if review was competent, the review petition was hopelessly barred by time ; and

(iii) The scope of section 110 AA of the Act has been misapplied by the Commissioner to the facts of the present case.

Coming to the first point, whether the Commissioner could review the earlier order dated 11th of March, 1980, awarding compensation, it is the admitted case of the parties that there is no specific provision for review under the Workmen''s Compensation Act The Learned Counsel for the Corporation wanted to bring his case either under the inherent powers of the Court to correct its mistake or wanted to urge that the earlier order awarded compensation was without jurisdiction, in as much as the claimants had already been awarded compensation by the Tribunal. As regards the inherent power to correct one''s own mistake, those would be casts where there is same clerical mistake committed by the Court or the Tribunal, which can he rectified but where a decision is given on merits, on contest of the parties, that decision cannot be sought to be changed on the basis of the so called mistake and if that order is changed, that will clearly amount to review. It has been ruled in Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, that there is no inherent power of review and such a power must be conferred either by law specifically or by necessary implication. As already noticed, there is no specific provision conferring power to review, and, therefore, the question would be whether by necessary implication, any such power can be inferred I have gone through the Workmen''s Compensation Act and I do not find any such power of review even by implication. The order which has been passed by the Commissioner clearly amounts to setting aside of the earlier order dated 11th of March, 1980, by which compensation was allowed to the claimants to the tune of Rs. 23,100/-, besides costs etc. Since, there is no power of review either expressly or by necessary intendment, the impugned order cannot be sustained.

Even if there was power of review, then under the second point, the next question would be whether the application filed by the Corporation was within the period of limitation. The limitation for entertaining a review application is provided by Article 137 of the Limitation Act, which is 30 days from the date of order sought to be reviewed. Admittedly, the previous order was passed on 11th of March, 1980, and the objections by the Corporation were filed on 5th of January, 1981. It may be noticed that no specific review application was filed for recalling the order dated 11th of March, 1980, and, therefore, this objection petition alone can be treated as a review petition for annulling or not giving effect to that order. There is no explanation given in the application, how the same was within limitation, nor any explanation has been given for the undue delay. Once that is so, I am co-strained to hold that the review was sought after undue delay, which has not been explained and, therefore, the same was hopelessly barred by time. It is well settled that the executing Court has no jurisdiction to sit in judgment over the order, which is sought to be executed because that can be done only by the superior Court in appeal or revision (see in this behalf the decision of the Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman 1970 R.C.R. 427.) Therefore, the executing Court clearly fell in error in nullifying the order granting compensation in a hopelessly barred petition. On this account also, the order of the Commissioner deserves to be set aside.

Coming to the last point, section 110-A of the Act, is as follows:--

110-AA Option regarding claims for compensation in certain cases:- Notwithstanding anything contained in the Workmen''s Compensation Act, 1923 (8 of 1923), where the death of or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmen''s Compensation Act, 1923 (8 of 1923) the person entitled to compensation may claim such compensation under either of those Acts but not under both.

The aforesaid provision provides that compensation can be claimed either under the Workmen''s Compensation Act, 1923 or under the Act, where the death of or bodily injury to any person gives rise to a claim for compensation under both the Acts The claimants first obtained an order of compensation to the tune of Rs. 30,000/- from the Tribunal under the Act by order dated February, 28, 1979, A separate application was filed under the Workmen''s Compensation Act, 1923 as well, which application was allowed on 11th of March, 1980, more than one year after the award of compensation by the Tribunal. It was for the Corporation to find out whether compensation had been claimed or awarded to the claimants under the Act or not, but they did not try to find it out till the final conclusion of the proceedings before the Commissioner. If the Corporation had filed an appeal against the order of the Commissioner dated 11th of March, 1980, in this Court and the matter had been pending here and the decision of the Tribunal dated 28th of February, 1979, awarding Rs. 30,000/- as compensation had been brought to my notice, I could certainly interfere and allow the appeal and dismiss the claim application in view of section 110-AA of the Act. But the Corporation did not choose to file an appeal and allowed the order of the Commissioner dated 11th of March, 1980, to become final. The jurisdiction of either the Tribunal or of the Commissioner to award compensation is not taken away, but the entitlement of the claimants is limited to claim compensation under either of the two Acts. Therefore, it cannot be said that the order of the Commissioner dated 11th of March, 1980, was totally without jurisdiction Here again, the observations of the Supreme Court in Vasudev Dhanjibhai Modi''s case (supra) are relevant, which deserve to be reproduced:--

.........Where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.

Therefore, the executing Court not overlook its own order dated 11th of March, 1993, or to refuse to execute the same merely on the ground that in view of section 110-AA of the Act, the claimants were entitled to compensation only under one of the two Acts and not under both. While it is true that the claimants are getting double benefit as compensation has been awarded under both the Acts, but it was for the Corporation to be vigilant in this behalf The Corporation for over a year failed to bring it to the notice of the Commissioner that since compensation had been awarded by the Tribunal under the Act, compensation should not be awarded under the Work men''s Compensation Act. Not only this, the award of compensation by the Commissioner was allowed to become final as no appeal was taken therefrom. Under these circumstances, the Corporation has to blame itself.

As already observed by me, if the Corporation had filed an appeal in this Court against the decision of the Commissioner dated 11th of March, 1980, and the fact of award of compensation to the claimants under the Act, had been brought to the notice of this Court, then in view of Trading Corporation''s case (supra) read with section 110-AA of the Act the appeal could be allowed and the award of compensation under the Workmen''s Compensation Act could be set aside in view of the award of compensation under the Act. But once the order was allowed to become final, the matter could not be reagitated at the time of execution. Therefore, I am of the view that neither section 110-AA of the Act, nor Trading Corporation''s case (supra) could be any assistance to the Corporation during execution proceedings.

For the reasons recorded above, this petition is allowed, the order of the commissioner dated 31st of October, 1981, is set aside and he is directed to proceed with the execution application to disburse the amount to the claimants according to order dated 11th of March, 1980. However, the parties are left to bear their own costs.