CHAUHAN, J. - (1.) THE appellant, the principal employer, has challenged the award dated 29-7-04 passed by the Workmen's Compensation Commissioner, Sawai Madhopur whereby the learned Commissioner has granted a compensation to the tune of Rs. 4]42]740/- in favour of respondent No. 1.
(2.) THE brief facts of the case are that the respondent No. 2, Premraj, had taken Meetha Lal, the workman from his village in District Sawai Madhopur for working on a house, which was under construction at Balotra. THE workman was promised a daily wage of Rs. 150/- as well as food and accommodation at Balotra. On 1-7-02, while Meetha Lal was working as a stone cutter on the Stone Cutting Machine, due to an accident, he was electrocuted. Meetha Lal expired on the spot itself. Since his old widowed mother was totally dependent on the earning of the deceased workman, she filed a claim petition against the appellant, the principal employer and against two contractors, the present respondent Nos. 2 and 3. THE appellant filed his written statement and denied the averments of the claim petition. According to him, the workman was not hired for the purpose of stone cutting, but was hired for the purpose of preparing the cement mixture for the walls. On the fateful day, while other workers were absent, the workman toyed with the stone cutting machine. Due to his own negligence he was electrocuted. Furthermore, he claimed that the workman was not directly under his employment but was employed by respondent Nos. 2 and 3, who were the contractors. Thus he denied his liability for the payment of the compensation amount. After going through the oral and documentary evidence, vide award dated 29-4-04, the learned Commissioner has granted the compensation as aforementioned. Hence this appeal before this Court. Mr. Mahendra Tiwari, learned counsel for the appellant, has raised four substantial questions of law, which are as under:- ``1. Whether the learned Court below was right in holding the age of deceased to be 22 years relying on the postmortem report, particularly when the doctor who conducted the postmortem was not produced to establish the report? 2. Whether the learned court below, in the facts and circumstances of the case, was right in holding the age of the deceased to be 22 years? 3. Whether the learned Court below was having the jurisdiction to entertain the claim petition as the accident occurred at Balotra? 4.Whether in the facts and circumstances of the case, learned court below was right in awarding the compensation as awarded by the impugned award?'' Since the first two questions are not questions of law, but are questions of fact, they need not detain us. He has forcefully argued on the point of jurisdiction. According to him as the accident had taken place at Balotra, the Workmen's Compensation Commissioner, Sawai Madhopur did not have the jurisdiction to entertain the claim petition at Sawai Madhopur. Therefore, the proceedings stand vitiated. On the other hand, Mr. Rajnish Gupta alongwith Ms. Swati Bhati, learned counsels for the respondents, have raised objection that the issue of jurisdiction was not pleaded before the learned Commissioner. Therefore, the said plea cannot be raised at the appellate stage. Moreover, according to them according to Section 21 of the Workmen's Compensation Act, 1923 (henceforth to be referred to as `the Act', for short) an option has been given to the claimant to file a claim petition, either before the Commissioner in whose area the accident had taken place, or where the claimants ordinarily reside, or where the employer has the registered office. Thus, the claimant being a poor widowed lady, had decided to file the claim petition in Sawai Madhopur as she was residing in District Sawai Madhopur itself. Therefore, the learned Commissioner at Sawai Madhopur had the jurisdiction to entertain the claim petition under Section 21 of the Act.
(3.) IN rejoinder, Mr. Tiwari has brought the first proviso to Section 21 to the notice of this Court and has argued that since the learned Commissioner at Sawai Madhopur did not have the jurisdiction, the learned Commissioner was duty bound to give notice to the workmen's Compensation Commissioner at Balotra. Since the learned Commissioner at Sawai Madhopur has not done so, the entire proceedings stand vitiated. We have given our anxious consideration to the rival contentions and have perused the impugned award. The only legal issue before this Court is whether the learned Commissioner at Sawai Madhopur had the jurisdiction to entertain the claim petition or not? Section 21 of the Act reads as under:- ``21. Venue of proceedings and transfers.- (1) Where any matter under this Act is to be done by or before a Commissioner the same shall, subject to the provisions of this Act and to any rules made hereunder, be done by or before the Commissioner for the area in which- (a) the accident took place which resulted in the injury; or (b) the workman or in case of his death, the dependent claiming the compensation ordinarily resides; or (c) the employer has his registered Office: Provided further that, where the workman, being the matter of a ship or a seaman or the captain or a member of the crew of an aircraft or a workman in a motor vehicle or a company, meets with the accident outside India any such matter may be done by or before a Commissioner for the area in which the owner or agent of the ship, aircraft or motor vehicle resides or carries on business or the registered office of the company is situate, as the came may be. (1a ). . . . . 2 . . . . . 3 . . . . 4 . . . . 5. . . . . (Sub-section (1-A) to Sub-section (5) are not being quoted as they are irrelevant to the controversy in issue.) ;