Jaya Mathachan & Others v. Suvarna Rekha Marines Pvt. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935** **MFA.No. 190 of 2006 (D) ------------------------** **AGAINST THE ORDER IN WCC 16/2003 of W.C.C.,ERNAKULAM DATED 03-02-2006** ## **APPELLANTS/APPLICANTS NOS.1 TO 4 ::** **---------------------------------** **1. JAYA MATHACHAN, AGED 33 YEARS, W/O.LATE SEBASTIAN MATHACHAN, THARATH HOUSE, KANNAMALI P.O., KOCHI-682 008.** **2. SNEHA (MINOR), AGED 9 YEARS,** - **D/O.LATE SEBASTIAN MATHACHAN, THARATH HOUSE, KANNAMALAI P.O., KOCHI-682 008, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN, JAYA MATHACHAN.** **3. MEGHA (MINOR), AGED 6 YEARS,** - **D/O.LATE SEBASTIAN MATHACHAN, THARATH HOUSE, KANNAMALI P.O., KOCHI-682 008, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN, JAYA MATHACHAN.** **4. IMMANUEL (MINOR) AGED 4 YEARS,** - **S/O.LATE SEBASTIAN MATHACHAN, THARATH HOUSE, KANNAMALI P.O., KOCHI-682 008 REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN JAYA MATHACHAN.** **BY ADVS.SRI.H.B.SHENOY SRI.B.ASHOK SHENOY.** ## **RESPONDENT/OPPOSITE PARTY:** **-------------------------** **SUVARNA REKHA MARINES PVT.LTD., HEAD OFFICE, `OCEAN PARK', MAHARANIPETTA, BEACH ROAD, VISHAKHAPATTANAM - 530 002.** **BY ADVS.SRI.B.S.KRISHNAN (SR.) SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** **'C.R'** ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **------------------------------------------------** ## **M.F.A No.190 OF 2006** **------------------------------------------------Dated this the 18[th] day of July, 2013.** ## **J U D G M E N T** ## **K.M.Joseph, J.** Appellants are the claimants in a proceeding under Section 22 of the Workmen's Compensation Act, 1923 renamed as the Employee's Compensation Act, 1923 (hereinafter referred to as 'the Act'). They filed an application alleging inter alia that late Sebastian Mathachan, a workman employed by the opposite party as Deck Crew (seaman) in the ship, viz. K.M.Surya Teja III sustained personal injuries by accident arising out of and in the course of his employment on 23-11-2001 and subsequently died on 17-12-2001. It is stated that the cause of death was that while the deceased was employed by opposite party on board their ship viz. K.M.Surya Teja III in the waters of Indonesia, the fishing net pulley on board the ship hit on his head rendering him unconscious, necessitating hospitalisation and resulting in his death on 17-12-2001. 2. The Commissioner after preliminary examination of the ## **M.F.A No.190 OF 2006 2** first appellant and recording a statement took the application into the files and it was numbered as W.C.C No.16/2003. The respondent inter alia contended that as per the 2[nd] proviso to Section 21 of the Act, the Commissioner of Ernakulam has no jurisdiction. The Commissioner found that he has no jurisdiction by virtue of the 2[nd] proviso of Section 21 as the application is to be dealt with by the 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 situated. The application was dismissed with liberty to file the application before the concerned Commissioner for claiming compensation under the Act. Being aggrieved, the appellant is before us. 3. We heard learned counsel for the appellants Smt.C.G.Preetha and learned counsel for the respondent Sri.Joseph Sebastian. 4. Since the crucial question is whether the jurisdiction is exclusively limited under the 2[nd] proviso and the decision would depend upon the interpretation of Section 21 of the Act, we extract ## **M.F.A No.190 OF 2006 3** Section 21(1) :- - _**“ 21. Venue of proceedings and transfer.-** (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 employee or in case of his death, the dependant claiming the compensation ordinarily resides; or_ _(c) the employer has his registered office :_ _Provided that no matter shall be processed before or by a Commissioner, other than the Commissioner having jurisdiction over the area in which the accident took place, without his giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned._ _Provided further that, where the employee, being the master of a ship or a seaman or the captain or a member of the crew of an aircraft or an employee 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 case may be.”_ **M.F.A No.190 OF 2006 4** 5. The learned counsel for the appellants would point out that original clauses (b) and (c) were not part of the provision. The same came to be inserted by way of the Amendment Act of 1995. She would point out that the Parliament realised the difficulties caused to the employee or the dependants resulting from the requirement that the application could be maintained only before the Commissioner for the area in which the accident took place which resulted in the injury and the Parliament decided to relax the rigour of the jurisdictional requirement. She would plead that a liberal view is required to be taken. She also drew support from the judgment of the Andhra Pradesh High Court reported in _**Noorjahan v. National Insurance Company Ltd., Hyderabad and Another (1999-II-LLJ 1057).**_ She would further point out that it may also be noticed that even going by the 2[nd] proviso, it only speaks about the employee's meeting with the accident outside India. She would remind as that in clause (b) of sub section 1, after referring to the employee, Parliament provided that in the case of his death the matter may be ## **M.F.A No.190 OF 2006 5** brought before the Commissioner for the area in which the dependants claiming compensation ordinarily resides. Even if it is understood that the 2[nd] proviso confers exclusive jurisdiction on the Commissioner in respect of a case where the employee brings the claim, it may not be applicable in a case where the workman dies and the claim is brought by the dependants. Per contra, the learned counsel for the respondent supported the order. 6. We are called up on to decide the effect of a proviso. What are the general principles which would govern the courts in the matter of interpretation of a proviso ? This question is no longer res integra and is covered by a large body of case law. In the Principles of Statutory Interpretation of statute by G.P.Singh, it is inter alia stated as follows :- ## _**“ Its real nature**_ _The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As stated by LUSH, J., “When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have_ ## **M.F.A No.190 OF 2006 6** _included the subject-matter of the proviso.” In the words of LORD MACMILLAN : “The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case.” The proviso may, as LORD MACNAGHTEN laid down, be “ a qualification of the proceeding enactment which is expressed in terms too general to be quite accurate ”. The general rule has been stated by HIDAYATULLAH, J., in the following words : “As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule”. And in the words of KAPUR, J : “ The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. ”_ 7. We may also notice that originally sub-section (1) of Section 21 read as follows : _“(1) Where any matter is under this Act to be done by or before a Commissioner, the same shall, subject to the provisions of this Act and to_ ## **M.F.A No.190 OF 2006 7** _any rules made hereunder, be done or before a Commissioner for the area in which the accident took place which resulted in the injury :_ _Provided that, where the workman is the master of a ship or a seaman, any such matter may be done by or before a Commissioner for the area in which the owner or agent of the ship resides or carries on business. ”_ It is subsequently that the Section came to be amended by Act 35 of 1995, with effect from 1-10-1996. It is thereafter that Section as it is presently found came into being. Originally therefore the law provided for jurisdiction with the Commissioner in respect of the area where the accident took place. The proviso dealt with a case of a master of a ship or a seaman, in which case the Commissioner for the area in which the owner or agent of the ship resided or carried on business could assume jurisdiction. By virtue of the amendment, the original proviso has been deleted. Instead the first proviso categorically provides that when a matter is brought before the Commissioner, other than the Commissioner having jurisdiction over the area in which the accident took place the matter cannot be ## **M.F.A No.190 OF 2006 8** processed except after giving notice to the Commissioner having jurisdiction over the area and the concerned State Government. Thus primarily it is the Commissioner of the area in which the accident took place resulting in the injury who is endowed with jurisdiction but by virtue of the amendment, the Commissioner for the area in which employee or in case of his death the dependant ordinarily resides and also the Commissioner for the area in which the employer has the registered office has been conferred with jurisdiction under Section 21. But when a matter is brought before a Commissioner within a meaning of clauses (b) and (c), the first proviso mandates giving of notice as provided therein. 8. Then we pass on to the 2[nd] proviso. The 2[nd] proviso provides for a situation where the employee is a master of a ship or a seaman or the captain or a member of the crew of an aircraft or an employee in a motor vehicle or a company meeting with an accident outside India. This is a complete change from what is contained in the earlier proviso. Not only does it bring about an enlargement of the employees covered, but it adds a new dimension and that is that ## **M.F.A No.190 OF 2006 9** it becomes the requirement for attracting the proviso that the accident occurred outside India. In such a case, the 2[nd] proviso mandates that the matter can be brought before the Commissioner for the area in which the owner or agent of the ship, aircraft of motor vehicle resides or carries on business or where the registered office of the company is situated as the case may be. In other words, by virtue of the 2[nd] proviso, power is conferred on a Commissioner in India to entertain a claim in regard to an accident which took place outside India. Secondly, it deals with the categories of workmen (employees after the amendment) who are covered by the 2[nd] proviso. 9. Having given the 2[nd] proviso, the aforesaid interpretation let us consider the argument of the learned counsel for the appellants. We may at once notice that both in sub-section (1) and in the 2[nd] proviso, the Commissioner for the area in which the employer has his registered office has jurisdiction. It is elementary that Parliament when it legislates is always aware of the felt necessities of the times of its people. Redundancy in words is not to ## **M.F.A No.190 OF 2006 10** be attributed to Parliament. Words are not wasted by Parliament. We make these observations as we notice the anomalous result which would follow, if we accept the contention of the appellants based on the amendment of 1995. There was a relaxation intended by Parliament and therefore by virtue of clause (b), the dependants of the deceased employee, could maintain the application before the Commissioner for the area in which they reside ordinarily. We find no rationale, when sub-section (1)(c) provides that the Commissioner for the area in which the employer has its registered office would have jurisdiction, that in the 2[nd] proviso also the Commissioner for the area in which the registered office of the company is situated would have jurisdiction. We are unable to ascribe to Parliament any intention to duplicate words. This in our view would provide us with sufficient light to reason that what is covered by the 2[nd] proviso is what is not covered by the main provision. As we have already noted the main function of a proviso is to except situations out of the main provision. In other words the function of a proviso is to provide for a case which is not covered by ## **M.F.A No.190 OF 2006 11** the main provision. In our view, clauses (a), (b) and (c) are intended to cover a situation where the accident in question takes place within India. If it is so interpreted, then it means that when the accident takes place within India, the matter may be brought before the Commissioner for the area where the accident took place or where the employee or in the case of his death the dependant claiming compensation ordinarily resides or the Commissioner for the area in which the employer has his registered office. If we give such an interpretation, it will in our view, harmonise sub-section (1)(a),(b) & (c) with the terms of the 2[nd] proviso. In other words, the two provisions deal with two mutually exclusive situations. i.e., to say Sub-section (1) deals with a case in which the accident took place within India and the 2[nd] proviso pertains to a situation where the accident takes place outside India. 10. We are not shaken in this view which commends itself to us by the further argument of the learned counsel for the appellant that under the 2[nd] proviso what is provided is where the 'employee meets with an accident outside India'. The arguments appears to be ## **M.F.A No.190 OF 2006 12** that if the employee is alive and he brings a claim in regard to the accident which took place outside India then it could be said, if at all, that he is covered by the mandate of the 2[nd] proviso, but it is not so when the dependants bring a claim. We are unable to accept the contention. It is true that the words 'employee meets with an accident' are mentioned in the 2[nd] proviso. It is also true that clause (b) covers a case where there is an injured employee who is the claimant as also cases of dependants in the case of his death who are claimants raising their claims on the basis of the place where they ordinarily reside. It could be at first blush appear that the argument is attractive. But we would think that what Parliament intended was that 2[nd] proviso deals exclusively with a situation where the employee meets with an accident outside India to confine the jurisdiction of the Commissioner to only the area where the employer resides or carries on business or has its registered office. Once we understand the purport of 2[nd] proviso on the said lines, then we find it difficult to accept the plea that if the employee was alive and was to bring the claim, he would be constrained to move ## **M.F.A No.190 OF 2006 13** before the Commissioner mentioned in the 2[nd] proviso and that the law will be different when the dependants claim and that they can avail of the main provision even though such a claim is against the same employer and in respect of an accident which took place outside India. If it is interpreted that the 2[nd] proviso should be confined only to the employee himself bringing a claim in respect of an accident taking place outside India, then the provisions may not be available to the dependants to bring a claim in respect of a claim where the accident take place outside India. We do not go so far. We would think that what is intended by the 2[nd] proviso is to refer to the jurisdictional fact, namely the employees of the categories mentioned in the 2[nd] proviso meeting with an accident outside India and then Parliament intends that 'any such matter' may be done before the Commissioner of the areas mentioned therein. The words 'any such matter' in our view would mean that it may be a claim by the workman in the case of his injury and in the case of his death it may be a claim by his dependants. On the said interpretation, we are of the view that the order of the Commissioner is only to be ## **M.F.A No.190 OF 2006 14** sustained. 11. The learned counsel for the appellant then contended that there was a contention taken, in the light of the objection taken by the respondent that the Commissioner has no jurisdiction as it is essentially operating from Visakapattanam where it has a registered office, that the respondent is carrying on business in various places in India, including Cochin. 12. Learned counsel for the appellants would submit on the basis of the same that the matter may be remitted back. We do not find the said contention acceptable. When the respondent contended that it was having its registered office at Visakapattanam and that it is carrying on business from Visakapattanam and that it is residing at Visakapattanam and the appellants had a case that it was carrying on business in Cochin also and the Commissioner proceeded to take up the matter the appellants ought to have adduced evidence in support of their contention in regard to the jurisdictional fact. Further more, when we asked the learned counsel for the appellants whether she had any material to show that the respondent is carrying on business **M.F.A No.190 OF 2006 15** in Cochin, learned counsel for the appellants was not in a position to point out any such material. We would think that a remand would be a futile exercise. In such circumstances, we uphold the order of the Commissioner and dismiss the appeal. Sd/- **K.M.JOSEPH, JUDGE. Sd/-** amk **A.HARIPRASAD, JUDGE.** //True Copy// P.A to Judge