- (1.) The non-applicant-appellant-Insurance Company has preferred this Civil Misc. Appeal under section 30 of the Workmen's Compensation Act, 1923 (hereinafter to be referred as 'the Act') against the judgment and award dated 24.5.2008 passed by the Workmen's Compensation Commissioner, Alwar in Claim Case No. 20/2006 whereby an award of Rs. 2,21,004/- alongwith interest @ 12% per annum from the date of accident has been passed. The brief relevant facts for the disposal of this Civil Misc. Appeal are that Shri Devi Ram, who was employed as a driver on the vehicle (truck) bearing registration No. RNG-2665, owned by respondent-Shri Mehar Chand received serious injuries and as a result thereof both of his legs and one of his hand were amputated. In order to claim compensation, Shri Devi Ram filed a Civil Suit under the provisions of the Fatal Accident Act before Additional District Judge, Kishangarhbas which was registered as Civil Suit No. 62/2004. That suit was filed on 21.3.1996 and in that suit admittedly the appellant-Insurance Company was not made a party. During the course of that suit the injured-Shri Devi Ram filed an application under Order XXIII, Rule 1 read with section 151 CPC with a prayer that he may be allowed to withdraw the suit and the same was allowed by the Court vide order dated 5.10.2005 and the plaint was returned with a liberty to Shri Devi Ram to file a claim petition before a competent Court. Thereafter, Shri Devi Ram filed the present claim petition under the provisions of the Act before the learned Commissioner on 10.11.2005 claiming therein compensation as well as interest and penalty amount. The appellant and respondent No. 7 filed their respective reply and the learned Commissioner after recording evidence and hearing the parties passed the impugned judgment and award. It was ordered that the appellant-Insurance Company shall pay Rs. 2,21,004/- as compensation and shall also pay interest @ 12% per annum on this amount from the date of accident i.e. 24.12.95 till the amount is paid to the claimants. It is to be noted that during pendency of the claim petition, the claimant-injured-Shri Devi Ram died on 14.6.2007 and in place of him his dependents respondents No. 2 to 6 were substituted. Feeling aggrieved, the appellant-Insurance Company is before this Court by way of this Appeal. Although, to assail the impugned judgment and award in the memo of appeal several grounds have been taken but during the course of hearing of the appeal, the learned Counsel for the appellant raised only the following grounds:- (i) As during the pendency of the claim petition, the injured-claimant-Shri Devi Ram died on 14.6.2007 and as the claim was for the personal injuries sustained by him, with the death of the claimant, the claim petition abated and right to sue did not survive on his legal representatives or dependents and, therefore, the claim petition was liable to be dismissed as abated but the learned Commissioner without assigning any reasons allowed the respondents to continue the claim petition and ultimately wrongly allowed the claim petition in their favour. It was submitted that there was no previty of contract between the appellant-Insurance Company and the injured, who subsequently died during the pendency of the claim petition and the liability against the appellant being tortious liability, that liability came to an end with the death of the claimant. It was further submitted that in such matters, right to sue may survive only if the liability is contractual, (ii) the claim petition was hopelessly time barred as it was filed before the Commissioner after 10 years from- the date of the occurrence of the accident whereas according to section 10 of the Act, the claim petition is to be preferred within two years from the occurrence of the accident. The learned Commissioner did not consider the point regarding limitation although from the facts available before him, it was very much clear that the claim petition has been filed much after the prescribed period. Although, objection regarding limitation was not specifically taken by the appellant in the reply filed before the Commissioner, but this point being a purely legal in nature, it can be taken and considered at any stage of the proceedings. It was also contended that provisions of Indian Limitation Act do not apply to the proceedings under the Act and, therefore, the delay made in preferring the claim petition was not liable to be condoned under section 5 of the Limitation Act. Similarly, the time taken in pursuing the Civil Suit under the provisions of the Fatal Accident Act before the Civil Court cannot also be set-off. Therefore, the claim petition was liable to be dismissed being time barred, (iii) It is an admitted fact that in the Civil Suit the appellant Insurance Company was not a party and intimation regarding accident was received by the appellant only when notice of the claim petition was given to it. In such circumstances the appellant could not be held liable to pay interest from the date of accident i.e. 24.12.1995 to the date on which intimation of the accident was given to it but even then the learned Commissioner has ordered that the appellant shall pay interest from the date of accident till the amount is paid to the claimants. At the most the appellant can be held liable to pay interest from the date on which intimation about accident was given to it.
(2.) In support of his submissions, the learned Counsel for the appellant relied on the cases of Kaniji Bi v. Mines Manager, Damua Colliery, Western Coalfields Ltd.,2009 121 FLR 875 Naseeban and another v. Surendra Pal and others, 1995 1 ACC 537 and M. Veerappa v. Evelyn Sequeira and others, 1988 AIR(SC) 506
(3.) On the other hand, the learned Counsel for the respondents by supporting the impugned order, submitted as below:- (i) The liability to pay compensation is neither tortious nor contractual but it is a statutory liability under the provisions of the Act and the liability to pay compensation arises as soon as the accident occurs and as a result of that an employee/workman is injured or death is caused and, therefore, the liability to pay compensation is a "debt payable" to the injured workman and on his death, it passes to his heirs or dependents and only due to death the claim petition does not abate. In the present case, the injured- workman-Shri Devi Ram died during pendency of the claim petition but only by that reason it cannot be said that the claim petition abated and the right to sue did not survive on the heirs or dependents of the deceased. (ii) No objection regarding limitation was taken by the appellant before the Commissioner either by filing reply or during the course of hearing and, therefore, the appellant cannot be allowed to raise this question for the first time in this appeal. The objection regarding limitation is not a pure question of law liable to be raised any stage of the proceedings, but it is a mixed question of law and fact and unless specific objection is taken about it at the first opportunity, it cannot be taken subsequently and more particularly for the first time in the appeal. Apart from that, the Commissioner has jurisdiction to condone the delay caused in preferring the claim petition if sufficient cause is shown for the same. In the present matter Shri Devi Ram was bonafidely pursuing the Civil Suit under the provisions of the Fatal Accident Act before a competent Civil Court on a legal advise received by him and subsequently on the application made by him to withdraw the suit, the plaint was returned with a liberty to file claim petition before a competent Court, he was entitled to claim condonation of delay for the period for which the suit remained pending. It is pertinent to note that the plaint was returned vide order dated 5.10.2005 and the claim petition was preferred without any unreasonable delay on 10.11.2005 before the Commissioner. It was also submitted that the provisions of the Act are beneficial in nature and, therefore, each and every provisions of the Act should be liberally interpreted. The respondents cannot be deprived from receiving the compensation amount only by the reason that the claim petition has been preferred after the lapse of prescribed period of limitation. If a party bonafidely pursue an alternative remedy to receive compensation on a wrong legal advise, in the eye of law it is a sufficient cause to condone the delay. (iii) Although, the appellant-Insurance Company was not a party to the Civil Court filed by Shri Devi Ram but the fact of accident and injuries caused to him came into the knowledge of employer soon after the accident and it was the duty of the employer to give intimation to his insurer i.e. the appellant-Insurance Company. If by any reason the employer failed to intimate the appellant-Insurance Company, only by that reason the appellant cannot escape from his liability to pay interest from the date of accident itself.;