AMITAVA Lala, J. - (1.) Since only the question of law is involved and parties agreed for hearing of the appeal on informal papers, the appeal is heard on the informal papers.
(2.) THIS appeal has been preferred by the concerned Insurance Company from the order of the Commissioner under the Workmen's Compensation Act, 1923, Meerut dated 2nd December, 2006. During the pendency of appeal another order of review was passed on 12th February, 2007, which by virtue of amendment of the appeal has been incorporated in the present appeal. Therefore, the appeal arises out from both the aforesaid orders. From the first order being dated 2nd December, 2006 it appears to us that the insurance company was held liable for paying the damages of Rs. 1,89,177/- and the owner of the vehicle was directed to pay simple interest at the rate of 12% on the aforesaid damages from the date of order till the date of payment and deposit. In the second order being dated 12th February, 2007 the insurance company was foisted with both the liability of payment of damages and also the interest. The appeal has been hotly contested on the point of maintainability of the application for review and second order passed by the Commissioner under the Workmen's Compensation Act, 1923. According to the appellant, the Commissioner under the Workmen's Compensation Act is not the Court, therefore, it does not possess any power of review. We have gone through the Rules 32 and 41 of the Workmen's Compensation Rules, 1924 (hereinafter called as the 'rule') formed in exercise of powers conferred by Section 32 of the Workmen's Compensation Act, 1923 (hereinafter called as the 'act, 1923" ). Rules 32 and 41 of the Rules are as follows : "32. Judgment.- (1) The Commissioner, in passing orders, shall record concisely a judgment, his finding on each of the issues framed and his reasons for such finding. (2) The Commissioner, at the time of signing and dating his judgment, shall pronounce, his decision, and thereafter no addition or alteration shall be made to the judgment other than the correction of a clerical or arithmetical mistake arising from any accidental slip or omission. " "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, 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. " Lot of controversies arose in respect of these two rules. According to the learned Counsel appearing for the appellant, by virtue of sub-rule (2) of Rule 32, as above, after putting signature at the time of pronouncement of the decision no addition or alteration shall be made other than a clerical or arithmetical mistake arising from any accidental slip or omission, meaning thereby any correction application can be made when there is no dispute but a substantial question of law cannot be reiterated without having such power of review under the law. On the other hand, learned Counsel appearing for the respondents relied upon the proviso (b) under Rule 41 of the Rules to explain that in case of sufficient reasons the Commissioner may, to protect the interest of the parties from any prejudice, pass an order in spite of finality of the order.
(3.) ACCORDING to us, statutory power of review is prohibited to the Commissioner. So far as inherent power of the civil Court as under Section 151 of the Code of Civil Procedure is concerned, that also cannot be applied in the case of Commissioner under the Workmen's Compensation Act. Therefore, excepting accidental slip or omission, a Commissioner cannot possess any power of review as available to the civil Court. Therefore, either second order passed by the Commissioner is an order without having any authority of the Commissioner or the same is made in the garb of an application for correction. From the plain reading of the order and consideration of various judgments it does not seem that the order is passed for correction of any accidental mistake or omission, but a complete order of review that too at the instance of third party/claimant. Third party/claimant cannot be said to be aggrieved by the order since he will get his entitlement of compensation and interest, if any, accrued thereon either by the owner or by the insurance company. Hence, the order is totally misconceived in nature. In AIR 1970 SC 1273, Patel Narshi Thakershi & Ors. v. Pradyumansinghji Arjunsinghji, a three Judges Bench of the Supreme Court held that it is well settled that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. Learned Counsel appearing for the respondents contended that if the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it can not on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on the fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistake or miscarriage of justice. In 1998 (1) LBESR 339 (SC) : 1998 ACJ 1, Ved Prakash Garg v. Premi Devi & Ors. , a question arose before the Supreme Court whether the phrase "liability arising under the Compensation Act" as employed by the proviso to sub-section (1) of Section 147 of the Motor Vehicles Act and as found under the proviso to Clause (i) of sub-section (1) of Section-II of the Insurance Policy, would cover only the principal amount of compensation as computed by the Workmen's Commissioner under the Workmen's Compensation Act and made payable by the insured employer or whether it can also include interest and penalty as imposed on the insured employer under contingencies contemplated by Section 4-A (3) (a) and (b) of the Compensation Act. The Court held that unlike Section 147 of the Motor Vehicles Act, Section 4-A (3) (a) of the Act, 1923 contemplates that liability to pay interest on the principal amount under the said provision remains a part and parcel of the statutory liability, which is legally liable to be discharged by the insured employer. Thus, the principal amount as well as the interest made payable thereon would remain part and parcel of the legal liability of the insured to be discharged under the Compensation Act and not de hors it. It, therefore, can not be said by the insurance company that when it is statutorily and even contractually liable to reimburse the employer qua his statutory liability to pay compensation to the claimants in case of such motor accidents to his workmen, the interest on the principal amount which almost automatically gets foisted upon him once the compensation amount is not paid within one month from the date it fell due, would not be a part of the insured liability of the employer. In 2006 (2) TAC 321 (SC), New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya & Anr. , the Supreme Court further held that a contract of insurance is governed by the provisions of the Insurance Act. Unless the said contract is governed by the provisions of a statute, the parties are free to enter into a contract as for their own volition. The Act does not contain a provision like Section 147 of the Motor Vehicles Act. It was further held that a policy of insurance has, therefore, to be construed like any other contract. On a construction of the contract in question it is clear that the insurer had not undertaken the liability for interest and penalty, but had undertaken to indemnify the employer only to reimburse the compensation the employer was liable to pay among other things under the Workmen's Compensation Act. Unless one is in a position to void an exclusion clause concerning liability of interest and penalty imposed upon the insured on account of his failure to comply with the requirements of the Workmen's Compensation Act, 1923, the insurer cannot be made liable to the insured for those amounts. In this situation, the obligation of the insurance company clearly stands limited and the relevant proviso providing for exclusion of liability for interest or penalty has to be given effect to. Unlike the scheme of the Motor Vehicles Act the Workmen's Compensation Act does not confer a right on the claimant for compensation under the Act to claim the payment of compensation in its entirety from the insurer himself.;