The Oriental Insurance Co. Ltd. v Subaida and Lakshmy Amma

## CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 11TH DAY OF JULY 2013/20TH ASHADHA, 1935 MFA.(WCC) No. 9 of 2010 (D ) -------------------------------------------------- (AGAINST THE ORDER IN WCC 20/2005 OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION, (DEPUTY LABOUR COMMISSIONER),KOZHIKODE DATED 31-12-2008) .......................................... ## APPELLANT(S)/2ND OPPOSITE PARTY: ------------------------------------------------------- THE ORIENTAL INSURANCE CO. LTD. REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE, METRO PLAZA NORTH RAILWAY STATION ROAD, ERNAKULAM. BY ADV. SRI.VPK.PANICKER ## RESPONDENT(S)/IST OPPOSITE PARTY AND APPLICANT: ----------------------------------------------------------------------------------- ## 1. SUBAIDA, S/o. IBRAYI, OTHAYOTH HOUSE, P.O.VAKAYAD, NADUVANNUR. ## 2. LAKSHMY AMMA,W/O.RAMUNNI NAIR, MEETHALE KEEZHKURUSIYIL, THRIKKUTHYSERY AMSOM VAKAYAD DESOM, NADUVANNUR, KOYILANDY TALUK. R2 BY ADV. SRI.JACOB ABRAHAM R2 BY ADV. SMT.KOCHUMOL KODUVATH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2013, ALONG WITH CO. 1/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## CR ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** --------------------------------------------- M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 ----------------------------------------Dated, this the 11[th] day of July, 2013 ## J U D G M E N T K.M.Joseph, J. ## **M.F.A.No.9/2010:** Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the 'Act'). The Commissioner has awarded a sum of ₹.2,91,960/- with 12% interest to the second respondent herein who was the claimant. 2. The substantial questions of law which are projected in the appeal are as follows: _“A. Whether the Commissioner for_ _Workmen's Compensation did not err in fixing the appellant with liability under_ M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 2 _the Workmen's Compensation Act to pay interest on the amount awarded from the date of accident?_ _B. Did not the Commissioner for Workmen's Compensation err in not raising an issue and adjudicating as to the date on which the compensation fell due?_ _C. Is not the earliest date on which the liability to pay interest u/s.4A of the Workmen's Compensation Act 1923, to be construed as the date on which the liability comes to knowledge?_ _D. Ought not the Commissioner for Workmen's Compensation raised an issue_ _and considered as to on whom the_ M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 3 _liability to pay interest rests, and the dates from which the liability begins to run?”_ 3. We heard Adv.Sri.V.P.K.Panicker, learned counsel for the appellant and Adv.Sri.Jacob Abraham learned counsel for the second respondent. 4. Learned counsel for the appellant would not press the appeal in the light of the judgment of the Apex Court in _Oriental Insurance Co. Ltd. V, Siby George_ . _(2012 (3) KLT 544 (SC))_ Hence, the appeal is only to be dismissed and we do so. ## **Cross Objection No.1/2011:** 5. The learned counsel for the appellant contended that cross objection may not be maintainable in an appeal filed under Section 30 of the Act. According to Adv.Sri.V.P.K.Panicker, there will be no right under M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 4 Order 41Rule 22 of the Code of Civil Procedure available to the Commissioner under the Act and the Rules and therefore the said right would not possibly be available to the High Court when it hears an appeal under Section 30. 6. Per contra, the learned counsel for the second respondent/cross objector would contend that, cross objection is maintainable before the High Court in an appeal under Section 30. The High Court, when it is exercising its appellate power would be governed by the procedure which governs the appellate Court and being the High Court, the procedure and the power available to the High Court would essentially be the power available under the Code of Civil Procedure (Order 41). In this regard, he drew our attention to the following decision reported in _Vijayaraghavan v. Velu (1973 KLT 333)._ In M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 5 that case, this Court considered the scope of the powers of the High Court in dealing with an appeal under Section 30 of the Act. Therein, the learned Judges who wrote separate judgments have held as follows. _Viswanatha Iyer, J._ has held inter alia as follows: _“ When a statute prescribes that an appeal shall lie to an established court the practice and procedure of that court which that court shall adopt in deciding an ordinary case shall be the practice and procedure which should be followed in deciding appeals under the statute.”_ ## _Subramonian Poti, J_ . has held as follows: _“The practice which must govern the appeal must be the practice of the_ M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 6 _court to which the appeal lies unless it_ _be indicated otherwise. If an appeal has been provided to the High Court in regard to any civil matter the provisions of the Code of Civil Procedure in regard to appeals, so far as they are not repugnant to the provisions of the enactment which confers the right of appeal to the High Court, may be applicable.”_ No doubt, the Court took the view that the provisions contained in the Code of Civil Procedure relating to the appeals may be applied so far as they are not inconsistent to the provisions of the Act. 7. Still further, learned counsel for the respondent relied on the decision reported in _Travancore_ M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 7 _Devaswom Board v. Purushothaman (1989 (1) KLT 563)_ which again arose under the Workmen's Compensation Act. Therein, the Court held as follows: _In an appeal under the Workmen's Compensation Act, the appellate court can exercise the powers of a civil court under Order XLI Rule 33 of the Code of Civil Procedure. Under the above provision it is open to a court of appeal, while granting relief to the appellant, to pass a decree or order in favour of a non-appealing respondent against another respondent in case the facts and circumstances justify the same_ . The Court essentially relied on the judgment in M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 8 (1973 KLT 333) (supra). 8. In _Santha v. Ist Addl.District Judge (1994_ _(1) KLT 516),_ the question arose as to whether cross objection under Order 41 Rule 22 of Code of Civil Procedure could be filed under the Buildings (Lease & Rent Control) Act, 1965 (Kerala). The Division Bench held _inter alia_ as follows: _“9.Order 41 R.22 of the CPC entitles the respondent not only to support the decree appealed against but also to state that the finding against him in the court below in respect of any issue ought to have been in his favour, besides taking cross objection to the decree which he could have taken by way of appeal. Thus if any_ M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 9 _part of the decree of the court below is adverse to the respondent, he has_ _to challenge it by filing a memorandum of cross objection; but if the ultimate decree of the court below is in his favour, he can invoke his rights under R.22 and support the decree on points found in his favour or against, without formally filing a memorandum of cross objection. We do not see why the same principle shall not apply to rent control proceedings or to a revision petition filed under S.20 of the Act. It is no doubt true that O.41, R22 is not specifically applicable to appeals_ M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 10 _under S.18 or to revisions under S.20 of the Act. An appellate power is the power of entering into an appellate court for a review de novo of the decision of the court below, subject to limitations, if any, on the scope of the appellate power imposed by the provision conferring the right of appeal, as in S.100 C.P.C. Under the procedural law in India, an appeal is a continuation of the suit, and the hearing of an appeal is in the nature of a rehearing (Lachmeshwar Prasad Shukul v. Keshwar Lal Chandhuri, AIR 1941 F.C.5).”_ No doubt, the Court points out the anomaly of M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 11 not allowing the respondent to maintain a cross objection noting as follows: _“This is so because an appeal or a revision lies under Ss.18 or 20 only_ _at the instance of an aggrieved party,_ _and a person who has an order in his_ _favour cannot be stated to be aggrieved by that order. If we accept the view propounded by counsel for the petitioner, and accepted by the learned Single Judge in Prabodhini, the consequence will be that the findings of the lower authority on a particular point will become final without the aggrieved party having any remedy to_ M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 12 _challenge it at all in appeal or_ _revision.”_ 9. An appeal under the Workmen's Compensation Act lies under Section 30. Section 30 provides for certain orders which are appealable. Section 30 further contemplates the appeal being filed within a time limit, no doubt, with power to condone delay. Section 30 further contains deposits being made in respect of order passed under clause 'a' and insists on production of certificate in this regard. Still further, Section 30 contemplates an appeal only if there is substantial question of law. 10. Learned counsel for the appellant is correct in pointing out that the powers of the Commissioner may be circumscribed by the provisions contained in the Act and Rules and powers which are M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 13 available under the Code of Civil Procedure are indicated in Rule 41. As far as the High Court examining an appeal under Section 30 is concerned, there is no provision contained in the Act or Rules by which only certain provisions of the Code of Civil Procedure are made available nor does the Act or Rules contemplate limiting the power available to the High Court otherwise to certain expressly granted powers. In the absence of any words of limitation in the Act or in the Rules by which the appellate power of the High Court is circumscribed or limited, it may not be in keeping with the principles of justice or the principles of interpretation of the statute to restrict the jurisdiction particularly having regard to the principle that the court would adopt an interpretation which widens its powers/jurisdiction. The principle which has been M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 14 enunciated by the Division Bench of this Court in _Vijayaraghavan v. Velu (1973 KLT 333)_ is apparently arrived at drawing support from the following dicta of the Supreme Court in _Collector, Varanasi v. Gauri Shanker (AIR 1968 SC 384)._ _“Neither the Act nor the rules_ _framed thereunder prescribe any special procedure for the disposal of appeals under Section 19(1)_ _(f). Appeals under that provision_ _have to be disposed of just in the same manner as other appeals to the High Court. Obviously after the appeal has reached the High Court it has to be determined according to the rules of practice_ M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 15 _and procedure of that Court. The_ _rule is well settled that when a statute directs that an appeal shall_ _lie to a court already established_ _then that appeal must be regulated by the practice and procedure of that Court: (1913)_ _AC 546 and AIR 1953 SC 357,_ _Rel.on.”_ We cannot overlook Section 141 of Code of Civil Procedure which reads as follows: _.-_ _**“141. Miscellaneous proceedings** The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil_ M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 16 _jurisdiction.”_ 11. If we accept the principles enunciated in 1973 KLT 333 (supra) and 1989 (1) KLT 563 (supra), we see no reason why the right should not be vouchsaved to the respondent in an appeal under Section 30 of the Employee's Compensation Act to maintain cross objection subject to all limitations contained in Section 30. In particular, we may indicate that a cross objection can be premised only on the existence of a substantial question of law. But, if all the requirements of Section 30 are satisfied we find ourselves unable to accept the argument of the learned counsel for the appellant that since the Commissioner under the Act is not endowed with all powers available under the Code of Civil Procedure, the High Court should thereby stand deprived of the powers which are M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 17 available to it as a Civil Court in view of the fact that there are no provisions in the Act or Rules which militate against the High Court being so empowered. 12. No doubt, learned counsel for the appellant pointed out that, the exercise of power under Order 41 Rule 33 would not be as a matter of right. In fact, the power is to be exercised sparingly. But, conferment of a right on the respondent in an appeal under Section 30 even if under Order 41 Rule 22 would entitle him to insist upon the adjudication of a properly filed cross objection. We are of the view that, in principle as held by the Court in _Vijayaraghavan v. Velu (1973 KLT 333)_ the power is available to the High Court by virtue of the fact that appeal is filed before it and the practice it follows also would take in the right to entertain a cross objection in keeping no doubt with the M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 18 provisions of Order 41 Rule 22. We would think that the aforesaid conclusion of ours is in keeping with the law laid down in _Vijayaraghavan v. Velu (1973 KLT 333)._ In such circumstances, we hold that subject to the restrictions contained in Section 30, namely, the existence of a substantial question of law being made out and the other conditions, if any, in the Section, cross objection is maintainable in an appeal filed under Section 30 of the Employee's Compensation Act. 13. In this case, as far as the merits of the cross objection is concerned, learned counsel for the cross objector would submit that this is a case where funeral expenses is denied. Funeral expenses is payable under Section 4 of the Act. We notice that, actually no question of law as such is raised. Assuming for a moment question was projected as substantial question M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 19 of law we would think that, the cross objector has not made out actually existence of any substantial question of law. The accident took place in the year 2004 and going by Section 4 as then stood the amount payable as funeral expense was .2,500/-. Funeral expense is to be₹ paid by the employer. If the claimant had a case that funeral expense was not paid it would have found reflection in the pleading. It is not disputed that such a claim is not made in the petition. We also are not shown any complaint being voiced before the Commissioner in this regard. No doubt, learned counsel for the cross objector would submit that, there is evidence given. We would not think that, in the facts and circumstances, the cross objector has made out a case for the interference in cross objection as no substantial question of law has been made out. Accordingly, we dismiss the cross M.F.A.(WCC) No.9 of 2010 & Cross Objection No.1 of 2011 20 objection also. (K.M.JOSEPH) JUDGE. ( A.HARIPRASAD) JUDGE. MS