The Oriental Insurance Company Ltd. vs Sri Jarnnail Singh and Others

A. Raghuvir, C.J.—Jarnnail Singh and his daughter Hurindar Kaur filed a claim petition against Kabul Singh for compensation of Rs. 1,27,066/- before the Deputy Commissioner, Cachar at Silchar. The compensation was claimed for the death of Kuldip Singh who was employed by Kabul Singh to ply vehicle AMU 3385. On December 18, 1985 at Salcharara District the vehicle met with an accident in that Kuldip Singh died. The Additional Deputy Commissioner ordered to pay compensation to the claimants Rs. 81,716/- u/s 4 of the Workmen''s Compensation (Amendment) Act, 1984 and a penalty for Rs. 42,358/-. The Oriental Insurance Company Ltd. with whom the vehicle was insured was not impleaded yet the Insurances Company was served a notice on February 27, 1987 to pay Rs. 1,27,066/-, Aggrieved by the order of payment appeal is preferred in this Court.

The Appellant averred the Company was not impleaded in spite of the fact that it was brought to the notice of the authority the vehicle was insured with the Appellant they were not impleaded in the case. The question therefore is whether the Insurance Company can file an appeal and what is the practice in such cases to be followed by this Court.

In the Annual Practice Vol. I at page 1658 it is recorded--"Any party to the action may appeal, for example, one alone of several Plaintiffs and also any person served with notice of the judgment and also any person served with notice of the judgment or order under Order, 16, Rule 40. But in addition, in accordance with old Chancery Practice, any person may appeal by leave (obtained on ex parte notion to the court of appeal) if he could by possibility have been made a party to the action by service". To similar effect is a passage contained in Halsbury''s Laws of England (IV Edition) Vol. 37 para 679 page 520--''''A person who is not a party and who has not been served with notice of the judgment or order may not appeal without leave, but a person who might properly have been made a party may obtain leave to appeal, as may a person who alleges that he Is aggrieved by the judgment or order and who can make out a prima facie case why he should have leave, but leave will not be given to a person who could not have been a party." In similar terms is the rule judgments and orders (7th Edition) Vol--I at page 824 it runs thus��where the Appellant is not a party to the record he can only Appeal by leave to be obtained on motion ex parte from the court of appeal. Leave to appeal will not be given to a person not a party unless his interest is such that he might have been made a party".

In the Securities Insurance Co. (1894) 8 Ch. 410 Lindley, J, observed. "...A person who without being a party is either bound by the order or is aggrieved by it or is prejudicially affected by it, cannot appeal without (sic)...If a person alleging himself to be aggrieved by an order can make out even a prima facie care why he should have leave he will get it but without leave he is not entitled to appeal." In (1881) 17 Ch. D. Watson v. Cave it is held "where a decree or order is made binding estates or interests in properties of estates of various individuals who are represented by some persons on the record then the Court will under some circumstances allow a person interested in the property to appeal if the party representing him on the record and against whom the order has been made does not wish to do so." The cases on this point In India ere legion, See 1949 Bomb 141 where Watson v. Cave was followed. See 1934 Mad 360, which was followed by the Bombay High Court. See also a Full Bench of 1962 A.P. 145 fully discussed the practice In India.

In the instant case insurance Company was not impleaded before the Additional Deputy Commissioner though the vehicle was Insured with the Appellant was brought to the notice of all concerned notwithstanding the same the Insurance Company was not impleaded. Besides we see Insurance Company is affected by the decision of that authority. The leave petition to file an appeal therefore is accorded. The order of this Court directing deposit of Rs. 1,27,066/- be made and not to pay penalty of Rs. 42,358/- to claimants and pay only Rs. 84,716/- is made absolute.

We express our gratitude to the learned Advocate General, Meghalaya for the assistance rendered to the Court in passing the order. We hold in all cases whenever like appeals are filed, the Appellants to seek leave of the Court in a petition and thereafter to file appeals as indicated. In the practice of this Court above.