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The Trustees of the Port of Bombay Vs. Natwarlal Parekh - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case Number Special Civil Application No. 2050 of 1972
Judge
Reported in(1979)81BOMLR373; 1978MhLJ870
AppellantThe Trustees of the Port of Bombay
RespondentNatwarlal Parekh
Excerpt:
.....by the commissioner under the act, the act stopped short by only providing for a substantive right to the persons mentioned in section 13 for being indemnified. that right therefore has got to be enforced in a civil court and could not be decided or settled or dealt with by the commissioner in a summary manner. ' it would thus appear that the jurisdiction of the civil court to entertain the instant action, is not ousted either expressly or by necessary implication either by the provisions of section 19 of the act or otherwise.;port trust, madras v. bombay company [1967] a.i.r. mad. 318 and o.f. & g. insurance co. v. union of india [1975] a.i.r. a.p. 222, followed. - - 1 having failed to make the payment, the petitioners filed regular suit no. that section as we have pointed..........disability of the petitioners' employee.7. the suit having proceeded to trial, although no question of jurisdiction was raised by the defences filed by respondents nos. 1 and 2, it appears that their learned advocate raised the question of jurisdiction at the time of the trial and contended that since the suit claim is based on the provisions of section 13 of the act, in view of the provisions of section 19 of the act, the said questions are required to be decided and settled by the commissioner appointed under the act and that therefore under sub-section (2) of section 19 of the act, the civil court had no jurisdiction to entertain the suit.8. on the issues settled for decision, the learned judge accepted the contention of the respondents nos. 1 and 2, and held that the court.....
Judgment:

Naik, J.

1. This petition raises the short question as to whether the civil Court has jurisdiction to entertain an action under Section 13 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act). It arises on the following facts :

2. The petitioners are a statutory corporation constituted under the Bombay Port Trust Act, 1879. Respondent No. 1 was the owner of Motor Lorry No. BMR 8966 and respondent No. 2 was the driver of that truck in the employment of respondent No. 1.

3. On February 16, 1961, the said motor lorry was being driven by respondent No, 2 in a rash and negligent manner on the extreme right hand side of the road at an excessive speed from south to north in the Alexandra Docks of the Bombay Port Trust and when it came near track No. 2, it knocked down one Kacher Gangaram an employee of the petitioners, who was attending to the shunting operation of the said track. The lorry actually dragged the said Kacher for a considerable distance as a result of which Kacher sustained numerous injuries,

4. As a result of the injuries sustained by Kacher by the rash and negligent driving of respondent No. 2 in the course of employment of respondent No. 1, Kacher was removed to St. George's Hospital and he was treated till May 11, 1962. He resumed his duties on June 5, 1962. On the basis of the injuries sustained by him, the honorary surgeon attached to St. George's Hospital issued a certificate stating inter alia that Kacher has suffered a permanent incapacity to the extent of 45 per cent. The certificate is dated May 11, 1962.

5. On September 13, 1961, the petitioners had informed respondent No. I about the injuries sustained by their employee Kacher and told him that he would be liable to indemnify the petitioners under Section 13 of the Act and that the said amount would be claimed from him as soon as the extent of injury and disabilities sustained by the employee were ascertained and after the compensation was paid to the said employee. The petitioners on the basis of the certificate issued by the honorary surgeon of St. George's Hospital were required to pay a sum of Rs. 2,205 to their workman Kacher as compensation under the Act as the said employee was injured in the course of the petitioners' employment on account of the rash and negligent driving by respondent No. 2 in the course of employment of respondent No. 1. The petitioners, thereafter sent a second notice dated September 17, 1962 calling upon respondent No. 1 to pay the said amount and to indemnify them under Section 13 of the Act but respondent No. 1 having failed to make the payment, the petitioners filed Regular Suit No. 433 / 1389 of 1963 in the Court of Small Causes at Bombay for recovering the said amount of Rs. 2,205 under Section 13 of the Act.

6. The suit was resisted by the respondents Nos. 1 and 2. By their defences they denied the petitioners' case in toto and in particular their liability to pay any amount to the petitioners. They maintained that the accident was entirely on account of negligence on the part of the injured. They also disputed the physical disability of the petitioners' employee.

7. The suit having proceeded to trial, although no question of jurisdiction was raised by the defences filed by respondents Nos. 1 and 2, it appears that their learned advocate raised the question of jurisdiction at the time of the trial and contended that since the suit claim is based on the provisions of Section 13 of the Act, in view of the provisions of Section 19 of the Act, the said questions are required to be decided and settled by the Commissioner appointed under the Act and that therefore under Sub-section (2) of Section 19 of the Act, the civil Court had no jurisdiction to entertain the suit.

8. On the issues settled for decision, the learned Judge accepted the contention of the respondents Nos. 1 and 2, and held that the Court had no jurisdiction to entertain the suit. He further held that the petitioners were entitled to only a sum of Rs. 890-38 p. under the Act as against the claim of Rs. 2,205 which was made by them. But since he took the view that the Court had no jurisdiction to entertain the suit, he passed an order directing the plaint to be returned to the petitioners for presentation to the proper Court.

9. The petitioners thereafter moved the Full Court, but in the Full Court, a preliminary objection was raised by respondents Nos. 1 and 2 to the effect that since the final order passed by the trial Court was not a decree, but an order passed under Order VII, Rule 10 of the Civil Procedure Code, the Full Court could not proceed to review the order in question. The Full Court accepted the preliminary objection on behalf of respondents Nos. 1 and 2 and dismissed the petitioners' application.

10. It is as against this background that the petitioners have approached this Court. Mr. Daji the learned counsel for the petitioners has assailed the order of the trial Court as being based on misconception of the provisions of Sections 13 and 19 of the Act. Mr. Jain, the learned counsel for respondents Nos. 1 and 2 has however supported the reasoning of the trial Court.

11. The short question which we have therefore to decide is. as to whether the civil Court has jurisdiction to entertain this suit which has been evidently filed to enforce a right given to the petitioners under Section 13 of the Act. To appreciate the rival contentions, it is necessary to bear in mind the fact that the Act as such has been passed to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident Section 3 in chap. II lays down the employer's liability for compensation and it provides inter alia that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of the said Chapter. Section 12 of the Act is to this effect :

12(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purpose of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.

(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation and all questions as to the right to and the amount of any such indemnity, in default of agreement, be settled by the Commissioner.

(3) Nothing in this section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal.

(4) This section shall not apply in any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken, or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management.

Section 13 of the Act on which the suit is founded is to this effect :

13, Where a workman has recovered compensation in respect of any injury caused under circumstances creating a legal liability of some person other than the person by whom the compensation was paid to pay damages in respect thereof, the person by whom the compensation was paid and any person who has been called on to pay an indemnity under Section 12 shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.

12. In the absence of the provisions of Section 12, a workman engaged by a contractor who had taken contract from the principal, could have proceeded only against his contractor employer under Section 3 of the Act and he could not have proceeded against the principal with whom his own employer had contracted to do any particular work. It is only because of the enabling provisions of Sub-section (1) of Section 12 that the workman can proceed against the principal of his employer. Sub-section (2) of Section 12 provides that where any person who is the principal is required to pay compensation to a workman engaged by his contractor, he has a right to be indemnified to that extent by the contractor whose workman had recovered compensation from him under Sub-section (1) of Section 12 of the Act. Sub-section (2) of Section 12 makes it clear that all questions as to the right to and the amount of any such indemnity, in default of agreement, is to be settled by the Commissioner under the Act.

13. Now when we compare the provisions of Section 13 with the provisions of Section 12 of the Act which are set out above, it would appear that there is no provision therein to the effect, that 'all questions as to the right to and the amount of any such indemnity, in default of agreement, be settled by the Commissioner' which occur in Sub-section (2) of Section 12 of the Act. On the other hand all that is provided for in Section 13 is 'where a workman has recovered compensation in respect of any injury caused under circumstances creating a legal liability, of some person other than the person by whom the compensation was paid, to pay damages in respect thereof, (1) the person by whom the compensation was paid, and (2) any person who has been, called on to pay an indemnity under Section 12, shall be entitled to be indentified by the person so liable to pay damages as aforesaid,' This section therefore gives right to two types of persons who are entitled to be indemnified by a stranger who is liable to pay damages to the injured worker. The first set consists of persons who have paid compensation to a worker in respect of an injury caused under circumstances creating a legal liability of some person other than the person by whom the compensation is paid and the second set consists of persons who have been called on to pay an indemnity under Section 12, and it is provided that both these sets of persons shall be entitled to be indemnified by the person so liable to pay damages as aforesaid. As we have pointed out earlier, unlike the provisions of Sub-section (2) of Section 12, where it is provided that.all questions as to the right to and the amount of any such indemnity, in default of agreement, be settled by the Commissioner,

no such provision exists in Section 13 of the Act. It would therefore appear by comparing and contrasting the provisions of Section 12 with the provisions of Section 13 that all that is provided by Section 13 is to create a substantive statutory right for the two types of persons mentioned therein for being indemnified by the person liable to pay damages to the concerned worker. This section unlike Section 12 docs not at all refer to the forum where that substantive right which is given by the said section is to be enforced.

14. It is not disputed that the ouster of jurisdiction of a civil Court is not to be readily inferred unless the same is provided for either expressly or by necessary implication. Section 19 of the Act on which reliance was placed by the trial Court and also by Mr. Jain for respondents Nos. 1 and 2 is to this effect :

19. (1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to (he amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner.

(2) No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.

15. Now, undoubtedly if the enforcement of a substantive right given by Section 13 of the Act could be said to be any question arising in any proceedings under the Act as to the liability of any person to pay compensation or as to the amount or duration of compensation, the civil Court could have no jurisdiction inasmuch as under Sub-section {1) of Section 19, these questions shall in default of agreement, have to be settled by the Commissioner and Sub-section (2) of Section 19 specifically provides that

No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.

In order therefore that the jurisdiction of the civil Court may be ousted, the question raised for decision must be one which is required to be settled, decided or dealt with by the Commissioner as required under the Act or it must be a case where the parties seek to enforce any liability incurred under the Act.

16. In our judgment, the view that the civil Court has no jurisdiction to entertain the suit appears to be unsustainable. As we have stated earlier, the preamble to the Act itself would show that it is an Act to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. In the normal course as is provided by Section 3, it is only the employer who is liable to pay the compensation under the Act. But for the provisions of Section 12(1), a worker engaged by a contractor who had taken the contract from any person who is the principal could not have recovered compensation from the principal of his contractor or employer. It is only in view of the enabling provisions of Section 12(1) that the workman could proceed against the principal who had contracted with his employer. It is with a view to indemnify such principal and to hold the contractor of the injured person responsible for indemnifying the principal that Sub-section (2) of Section 12 of the Act was enacted. That section as we have pointed out clearly lays down that 'all questions as to the right to and the amount of any such indemnity, in default of agreement, be settled by the Commissioner.' Clearly therefore the jurisdiction to take action under Section 12 of the Act is vested in the Commissioner and therefore the jurisdiction of the civil Court to entertain this question would be barred under Section 19 of the Act. As against that, as we have endeavoured to show by comparing and contrasting the provisions of Section 12 with the provisions of Section 13 which also deals with the question of indemnity, there is no provision in Section 13 empowering the Commissioner to deal with any question as to the right to and the amount of any such indemnity, although such a right is given to the Commissioner under Section 12(2) of the Act. Clearly therefore what is given by Section 13 is only a substantive right and no provision is made therein for enforcing that substantive right. In the absence of any specific provision in Section 13 or even in Section 19 of the Act on the question of indemnity provided by Section 13, there is no basis for holding that the right of indemnifying conferred by Section 13 cannot be enforced in a civil Court.

17. Mr Jain drew our attention to the last sentence in Sub-section (2) of Section 19 of the Act to the effect 'or to enforce any liability incurred under this Act' and posed a question to us, as to whether a right under Section 13 which the petitioners seek to enforce is not a liability incurred under the Act. Surely in the instant case so far as the petitioners are concerned, they are enforcing a statutory right given to them under Section 13 and so far as respondents Nos. 1 and 2 are concerned, they could not say that it was a liability incurred under the Act which is being enforced against them. Their liability to pay damages arose independently of the Act, the moment respondent No. 2 knocked down Kacher by his rash and negligent driving and caused him serious injuries. The liability of respondents Nos. 1 and 2 therefore to pay damages for the injuries sustained by Kacher an employee of the petitioners arose by the tortious act of respondent No. 2 independently of the provisions of the Act and de hors the Act. Now since it is nobody's case that there was relationship of employee and employer between Kacher and respondents Nos. 1 and 2, surely Kacher who had sustained injuries could not have proceeded against the respondents Nos. 1 and 2 under the Act and much less could it be said that respondents Nos. 1 and 2 had incurred any liability under the Act by reason of the tortious act. It would thus appear that in the first place, Section 13 creates a statutory right in favour of the two classes of persons mentioned therein and that right of being indemnified is from a person liable to pay damages. Secondly that liability is not a liability arising under the Act but arising independently of the Act. There is no provision in Section 13 or any other provision enabling the Commissioner under the Act to give relief under Section 13 of the Act.

18. There is also another indication in the Act itself pointing to the view we are taking, and that could be seen by reference to Section 30 of the Act. Section 30 provides that an appeal shall lie to the High Court from orders mentioned therein. Sub-section (1) (d) of Section 30 provides that an appeal shall lie to the High Court from an order of the Commissioner allowing or disallowing any claim for the amount of an indemnity under the provisions of Sub-section (2) of Section 12 of the Act. It may be noted that there is no provision in Section 30(1) providing for an appeal to the High Court against the order passed by the Commissioner under Section 13 of the Act. The reason is obvious. Since no jurisdiction was intended to be conferred on the Commissioner to act under the provisions of Section 13, it was wholly unnecessary for the Legislature to provide in Section 30 for any appeal against such an order which could not at all be passed by the Commissioner for want of jurisdiction. It would thus appear on a close scrutiny of the preamble and the provisions of Section 13 contrasted with the provisions of Section 12 and the provisions of Sections 19 and 30 that the right to be indemnified conferred by Section 13 is a statutory right and that right could be enforced against the person who has become liable to pay damages de hors the Act, and since evidently such action could not be disposed of in a summary manner by the Commissioner under the Act, the Act stopped short by only providing for a substantive right to the persons mentioned in Section 13, for being indemnified. That right therefore has got to be enforced in a civil Court and could not be decided or settled or dealt with by the Commissioner in a summary manner. It would thus appear that the jurisdiction of the civil Court to entertain the instant action is not ousted either expressly or by necessary implication either by the provisions of Section 19 of the Act or otherwise. The trial Court was therefore not right in coming to the conclusion that the civil Court had no jurisdiction to entertain the suit.

19. We may now refer to the reported decisions relied upon by Mr- Daji for the petitioners. The first decision is reported in Port Trust, Madras v. Bombay Company : AIR1967Mad318 , in which the single Judge of the Madras High Court has also taken the view that an action under Section 13 of the Act can lie in a civil Court and that the jurisdiction of the civil Court to entertain such an action is not barred by the provisions of Section 19 of the Act. A similar view is also taken in O.F. & G. Insurance Co. v. Union of India : AIR1975AP222 . A contention similar to the one raised before us by Mr Jain and which had found favour with the trial Court was repelled by the division Bench in this case and the Court held that the case falls under the first part of Section 13 and that there is no machinery under the Act to enforce the liability. It was further held that.The question as to whether a stranger is liable to indemnify the person who has deposited the compensation is not a question which is by or under the Act to be decided or dealt with by the Commissioner. Hence the contention that the jurisdiction of the civil Court to entertain the suit is barred by Section 19(2) is without substance.

With respect, the above decisions are in consonance with the view we are taking. We are, therefore, of the view that order of the trial Court directing the plaint to be returned to the plaintiffs for presentation to the proper Court must be quashed and we accordingly quash the same. In the view we are taking it would appear that the order of the Full Court dated July 3, 1972 being infructuous, also must be quashed and we quash it accordingly. The suit is therefore remitted to the trial Court for disposal according to law in the light of this judgment. The rule is made absolute accordingly. Respondents Nos. 1 and 2 to pay the costs throughout and bear their own.


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