# New India Assurance Co. Ltd., Moradabad v. Sri Mohd. Aslam &Ors

- **Citation:** (2023) 11 ILRA 744
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-05
- **Case number:** First Appeal From Order No. 1023 of 2008
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-india-assurance-co-ltd-moradabad-v-sri-mohd-aslam-ors-49400
- **Pages:** 18

## Headnote

A. Civil Law -Employees' Compensation Act,
1923-Section 30- substantial question of law-
Commissioner awarded compensation to the
claimants for the death of their son, in the sum
of ₹4,33,820/- and other incidental reliefs-the
victim was aged 25 years-The victim suffered
injuries during the course of employment, in
consequence of which, he died- The claimants
have been rendered without financial support,
inasmuch the victim was the sole breadwinner
of the family, whose life has extinguished in
consequence of the accident-The claimants
asked the owner to pay compensation, which he
did not-They served the owner with a notice
under Section 10 of the Act of 1923, but they
received nothing towards compensation for the
victim's untimely demise in the accident-The
substantial question of law involved here has
been formulated in the background of facts that
the Employees' Compensation Commissioner
has admittedly not issued a notice to the
Employees' Compensation Commissioner at
Begusarai, Bihar, where the accident happened-
He has also not issued notice to the State
Government concerned, the Government of
Bihar, the twin conditions to be mandatorily
fulfilled in terms of the proviso to Section
21(1)(b) of the Act of 1923 by a nonjurisdictional Compensation Commissioner trying
or processing, as the Statute says, a claim by an
employee or his heirs for compensation under
the Act of 1923- Therefore, The general rule
about venue or jurisdiction of a Court trying a
civil cause or proceedings akin to it is that the
Court competent to try the action or undertake
the proceedings is the one within the territorial
jurisdiction of which the cause of action has
arisen-Different Statutes, including the Code of
Civil Procedure, 1908, extend the venue to other
Courts, upon principles spelt out by the lawHere, the Statue, prior to its amendment by the
Act of 1995, did not invest any other
Compensation Commissioner, except for the one
in whose area the accident took place and
resulted in the injury- it is only subject to
adherence with the conditions of the proviso to
Section 21(1)(b) of the Act that extra territorial
jurisdiction can be exercised by a Compensation
Commissioner, and that appears to be the
position of the law not at all to be doubted,
considering the principles in Bharat Singh-The
insurer ought to have then pleaded the facts
stating what the territorial limits of jurisdiction
of the Commissioner at Moradabad were and
where the accident site was- No pleading in that
regard was made-Held, requirement of law
introduced by the proviso to Section 21(1)(b) of
the Act of 1923 is not a matter of procedural
irregularity, which can be ignored-It is an issue
of jurisdiction, which goes to the root of the
Commissioner's jurisdiction-Thus, the substantial
question of law involved in this appeal has to be
answered in the negative and the impugned
judgment and award passed by the Employees'
Compensation Commissioner set aside with a
remand of the matter to the Compensation
Commissioner for a decision de novo- Before
processing the claim de novo the Compensation
Commissioner shall strictly adhere to the
requirements of the first proviso to Section
21(1)(b) of the Act of 1923.(Para 1 to 47)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,601 of 60,903. This is a partial read: ask again with offset=39601 for what follows._

744 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned for compliance and further
necessary action.
----------
(2023) 11 ILRA 744
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2023

BEFORE

THE HON'BLE J.J.MUNIR, J.

First Appeal From Order No. 1023 of 2008

The
New
India
Assurance
Co.
Ltd.,
Moradabad ...Appellant
Versus
Sri Mohd. Aslam &Ors. ...Respondents

Counsel for the Appellant:
Sri S.C. Srivastava

Counsel for the Respondents:
Sri Mohd. Asim Zulfiquar, Sri Amit Kumar,
Sri Amit Kumar Verma, Sri R.K. Yadav

A. Civil Law -Employees' Compensation Act,
1923-Section 30- substantial question of law-
Commissioner awarded compensation to the
claimants for the death of their son, in the sum
of ₹4,33,820/- and other incidental reliefs-the
victim was aged 25 years-The victim suffered
injuries during the course of employment, in
consequence of which, he died- The claimants
have been rendered without financial support,
inasmuch the victim was the sole breadwinner
of the family, whose life has extinguished in
consequence of the accident-The claimants
asked the owner to pay compensation, which he
did not-They served the owner with a notice
under Section 10 of the Act of 1923, but they
received nothing towards compensation for the
victim's untimely demise in the accident-The
substantial question of law involved here has
been formulated in the background of facts that
the Employees' Compensation Commissioner
has admittedly not issued a notice to the
Employees' Compensation Commissioner at
Begusarai, Bihar, where the accident happened-
He has also not issued notice to the State
Government concerned, the Government of
Bihar, the twin conditions to be mandatorily
fulfilled in terms of the proviso to Section
21(1)(b) of the Act of 1923 by a nonjurisdictional Compensation Commissioner trying
or processing, as the Statute says, a claim by an
employee or his heirs for compensation under
the Act of 1923- Therefore, The general rule
about venue or jurisdiction of a Court trying a
civil cause or proceedings akin to it is that the
Court competent to try the action or undertake
the proceedings is the one within the territorial
jurisdiction of which the cause of action has
arisen-Different Statutes, including the Code of
Civil Procedure, 1908, extend the venue to other
Courts, upon principles spelt out by the lawHere, the Statue, prior to its amendment by the
Act of 1995, did not invest any other
Compensation Commissioner, except for the one
in whose area the accident took place and
resulted in the injury- it is only subject to
adherence with the conditions of the proviso to
Section 21(1)(b) of the Act that extra territorial
jurisdiction can be exercised by a Compensation
Commissioner, and that appears to be the
position of the law not at all to be doubted,
considering the principles in Bharat Singh-The
insurer ought to have then pleaded the facts
stating what the territorial limits of jurisdiction
of the Commissioner at Moradabad were and
where the accident site was- No pleading in that
regard was made-Held, requirement of law
introduced by the proviso to Section 21(1)(b) of
the Act of 1923 is not a matter of procedural
irregularity, which can be ignored-It is an issue
of jurisdiction, which goes to the root of the
Commissioner's jurisdiction-Thus, the substantial
question of law involved in this appeal has to be
answered in the negative and the impugned
judgment and award passed by the Employees'
Compensation Commissioner set aside with a
remand of the matter to the Compensation
Commissioner for a decision de novo- Before
processing the claim de novo the Compensation
Commissioner shall strictly adhere to the
requirements of the first proviso to Section
21(1)(b) of the Act of 1923.(Para 1 to 47)

The appeal is allowed. (E-6)

List of Cases cited:

1.
Mayan
Vs
Mustafa
&
anr..
11 All. The New India Assurance Co. Ltd., Moradabad Vs. Sri Mohd. Aslam &Ors.
745
2. Bharat Singh Vs Mgt of New Delhi
Tublerclosis Centre, New Delhi & ors.

3. Morgina Begum Vs MD, Hanuman Plantation
Ltd.

4. New India Assr. Co. Ltd Vs Smt. Shadab &
ors.

5. Bajaj Allianz Gen. Ins. Co. Ltd Vs Suman Devi
& ors.

6. ICICI Lombard Gen. Ins. Co. Ld. Vs Rakesh &
anr.

7. M/s. Chawla Techno Cons. Ltd. & anr. Vs St.
of U.P. & ors.

8. National Ins. Co. Ld Vs Smt. Nirmala Devi &
ors.

9. Guj. Mineral Dev. Corp. Vs Shri Brahmbhatt

10. Workmen of M/s. Firestone Tyre & Rubber
Co. of India (P.) Ltd. Vs Mgmt & ors.

(Delivered by Hon'ble J.J. Munir, J.)

This appeal under Section 30 of the
Employees' Compensation Act, 19231
is directed against the judgment and
award
of
the
Employees'
Compensation
Commissioner,
Moradabad
(then
called
the
'Workmen's
Compensation
Commissioner')
dated
02.02.2008,
awarding
compensation
to
the
claimants for the death of their son, in
the sum of ₹4,33,820/- and other
incidental reliefs.

2. This appeal was entertained by a
Division
Bench
of
this
Court
on
21.04.2008, though not formally admitted
to hearing. The question that would
tentatively be involved was also indicated
in the order of the day, though not
formulated as such. The appeal was later on
admitted to hearing vide order dated
09.12.2019, albeit without framing the
question/questions involved.

3. On 24.02.2022, when the appeal
came up, the following substantial question
of law was framed :

Whether a Commissioner, seized
of a claim in relation to an accident that has
taken place in an area other than one over
which he has jurisdiction, is entitled to try
and determine the claim, without issuing
notice
to
the
Commissioner
having
jurisdiction and the State Government
concerned in terms of the proviso to
Section
21(1)
of
the
Employee's
Compensation Act, 1923?

4. The appeal has been heard on the
aforesaid substantial question of law.
Learned Counsel for the parties have
addressed the Court on the issue, of course,
in the background of the facts and evidence
giving rise to the claim, very elaborately.

5. The claimants, Mohd. Aslam and
Smt. Husn Ara, Aslam's wife, are the
parents of Mohd. Salim alias Raja, said to
be the victim of a fatal motor accident, that
happened on 07.06.2005 at Begusarai,
Bihar. The claimants are residents of
Moradabad. They instituted Claim Petition
No. 31 of 2007 before the Employees'
Compensation Commissioner, Moradabad
on 07.06.2007, with allegations that their
son, Mohd. Salim alias Raja, was employed
as a Cleaner by the owner of Vehicle No.
HR 38 J/3735. Sarfaraz Khan was the
owner of the vehicle and impleaded as
opposite party No. 1 to the claim petition.
He shall hereinafter be called 'the owner'.
746 INDIAN LAW REPORTS ALLAHABAD SERIES

6. According to the claimants, their
son, Mohd. Salim alias Raja, who shall
hereinafter be called 'the victim' was
carrying a consignment of goods on board
Vehicle No. HR 38 J/3735, with Rais
Ahmad operating the vehicle as its driver.
The victim was carrying the consignment
according to the instructions of the owner
on board the ill-fated vehicle. The vehicle
had to deliver the consignment at a
destination in the State of Bihar. The victim
mounted the vehicle's tool box to recover
some tools, perhaps, to fix some fault that
had occured on way, when he slipped and
fell down onto the road, leading to injury to
the head and other parts of his body. The
driver immediately conveyed the victim the
same day i.e. 07.06.2005 to a certain
Shivam Nursing Home, managed by Dr.
Ram Yatan Singh, situate at Begusarai,
Bihar for necessary medical aid and
reported the matter to the local police
station at Begusarai, Bihar. During the
course of treatment by Dr. Ram Yatan
Singh, the claimants' son succumbed to his
injuries
on
the
following
day
i.e.
08.06.2005.

7. The owner would pay the victim
salary in the sum of ₹4,200/- per month,
besides a diet allowance. At the time of his
demise, the victim was aged 25 years.
The victim suffered injuries during
the
course
of
employment,
in
consequence of which, he died. The
claimants
have
been
rendered
without financial support, inasmuch
the victim was the sole breadwinner
of
the
family,
whose
life
has
extinguished in consequence of the
accident.
The
claimants
find
it
difficult to sustain themselves and
both
of
them
are
suffering
of
diseases. They do not have any other
person as their support.

8. The claimants asked the owner to
pay compensation, which he did not. They
served the owner with a notice under
Section 10 of the Act of 1923, but they
received nothing towards compensation for
the victim's untimely demise in the
accident.

9. The ill-fated vehicle was insured
with the New India Assurance Company
Limited, represented by its Regional
Manager, Regional Office, Civil Lines,
Moradabad on the date and time of the
accident. The insurance cover, bearing
number 396248 was valid from 02.10.2004
to 01.10.2005. The Insurance Company
aforesaid, who shall hereinafter be called
'the insurers' have been impleaded as
opposite party No. 2 to the claim petition.
The insurers are the appellants here. The
claimants and the owner are both residents
of Tehsil Sambal, Moradabad, and for the
said reason, the Employees' Compensation
Commissioner, Moradabad has jurisdiction
to try the claim. The claimants have prayed
that they be given compensation according
to the provisions of the Act of 1923, which
ought to be ordered from the date of the
accident till realisation, with simple interest
at the rate of 18% per annum .

10. The insurers contested the claim
before
the
Employees'
Compensation
Commissioner and put in a written
statement dated 23.07.2007. The insurers,
in their written statement, generally denied
the allegations in the claim petition, and
pleaded their case, raising additional pleas.
The case pleaded by the insurers is that the
victim was not a Cleaner on board the illfated vehicle, nor the owner had ever
issued any letter of appointment in his
favour. It is said in the written statement
that the claimants did not mention the date,
month or year of the victim's appointment
11 All. The New India Assurance Co. Ltd., Moradabad Vs. Sri Mohd. Aslam &Ors.
747
in the claim petition, nor have they
produced a copy of any salary certificate.
The victim was not performing his duty on
board the ill-fated vehicle. He never
mounted the toolkit chamber to recover
tools; also he did not sustain injuries to his
head or other parts of the body in the
claimed accident. It is said that if the victim
was on duty, the claimants would have
mentioned the date and time of the
accident, also mentioning if it happened by
night. It is emphasized that the time of
accident is not mentioned at all in the claim
petition. It is averred that for the claimants'
failure to get a First Information Report
relevant to the accident registered, the
claim petition is fit to be rejected.

11. By way of an amendment
incorporated on 03.10.2007, it was pleaded
vide paragraph No. 18(a) of the insurers'
written statement that upon arrival of the
deceased's
cadaver,
an
inquiry
was
undertaken by the insurers' surveyor, D.
Kumar, who found that the victim's death
certificate
dated
08.06.2005 that
the
claimants had presented, was not issued by
Shivam Nursing Home or Dr. Ram Jatan
Yadav. It was a fabricated document, got up
and presented by the claimants. After
inquiry, it was also found that on
07.06.2005, no crime was registered at
Police Station Begusarai relating to the
accident. The written information that was
presented, too was a got up document. It is
the further case of the insurers that the
claim petition is barred by Section 10 of the
Act of 1923, inasmuch as it is provided
there that the Employees' Compensation
Commissioner shall not entertain any claim
under the Act of 1923, unless notice of the
accident has been given in the manner
provided, as soon as practicable, after the
event. It is averred that from a perusal of
the assertions made in the claim petition,
the claimants never served a notice upon
the insurers. The insurers have also raised a
plea that the driver of the ill-fated vehicle
did not possess a valid driving license, in
accordance with the provisions of the
Motor Vehicles Act, 1988. The driver and
the victim are not entitled to any
compensation, for the reason that the driver
did not hold a valid driving license on the
date and time of the accident. In the
circumstances, the insurers have no liability
to indemnify. The claim petition was urged
to be rejected on the basis of the aforesaid
pleas.

12. The owner of the ill-fated vehicle
filed his written statement on 31.07.2007.
The contents of paragraph Nos. 1 to 5 to
the claim petition were admitted. In answer
to paragraph No. 6 of the claim, it is
averred that the victim was employed on a
salary of Rs. 3500/- per month. It is
accepted in paragraph No. 8 of the written
statement that the victim died during the
course of employment. It is pleaded in
paragraph No. 13 that the claimants are not
entitled to compensation. However, in case
the Court is of opinion that the claimants
are entitled, burden has to be shouldered by
the insurers, because the owner's vehicle
was insured on the date and time of the
accident with the insurers, the policy being
valid from 02.10.2004 to 01.10.2005. The
insurance cover note is numbered as
396248, according to the owner.

13. In the additional pleas set out in
the written statement on behalf of the
owner, it is averred in paragraph No. 14
that the owner helped the claimants in
every manner possible, but the claimants
have not provided him with all the
necessary documents, such as the ration
card and others, on account of which, he
748 INDIAN LAW REPORTS ALLAHABAD SERIES
could not manage compensation to be paid
by the insurers.

14. On the pleadings of parties, the
Tribunal framed the following issues
(translated into English from Hindi) :

(i) Whether the claimants' son
died during the course of employment on
account of grievous injuries sustained in a
motor accident?

(ii) Whether on the date of the
accident i.e. 07.06.2005, vehicle No. HR
38J/3735 was insured with opposite party
No. 2?

(iii) What was the salary received
by the claimants' son at the time of the
accident?

(iv) Whether the driver had a
valid driving license at the time of the
accident?

(v) Whether the claimants are
entitled to any compensation? If yes, how
much and from which opposite party?

15. Parties led evidence, both oral and
documentary, of which there is eloquent
mention in the impugned judgment passed
by
the
Employees'
Compensation
Commissioner. There is no necessity to
refer to that evidence, considering the
substantial question of law, the answer to
which would govern the fate of this appeal
before this Court. Nevertheless, for the
sake of record, it must be held that the
issues were answered in favour of the
claimants and the claim petition allowed,
awarding compensation in the sum of
₹4,33,820/-, ordering the insurers to make
it
good.
It
was
ordered
that
the
compensation be paid within 30 days,
favouring
the
Deputy
Labour
Commissioner,
Moradabad
Region,
Moradabad. It was also directed that in the
event of non-compliance within the time
allowed, recovery proceedings would be
initiated without further notice. In addition,
notice was issued to the owner on the issue
of penalty.

16. This Court, at the time when the
appeal was entertained on 21.04.2008,
directed that no part of the compensation
awarded shall be released in favour of the
respondents. It is, thus, apparent that the
sum of ₹4,33,820/- deposited with the
Employees' Compensation Commissioner
by
the
insurers
vide
cheque
dated
26.03.2008 is lying in deposit with the said
Commissioner.

17. Heard Mr. S.C. Srivastava,
learned Counsel for the insurers and Mr.
Mohd. Asim Zulfiquar, learned Counsel on
behalf of the respondents.

18. Learned Counsel for the insurers
submits that in the absence of a notice
issued by the Compensation Commissioner
at
Moradabad
to
the
Compensation
Commissioner at Begusarai, within whose
territorial
jurisdiction
the
accident
happened, the award cannot be sustained.
He further submits that a notice was also
required to be issued by the Employees'
Compensation Commissioner, Moradabad
to the State Government of the State where
the accident occurred. In this connection,
he has placed reliance upon the first
proviso to Section 21(1)(b) of the Act of
1923. Mr. Srivastava impresses upon the
Court
that
where
a
Compensation
Commissioner, other than the one within
whose jurisdiction the accident occurred,
entertains and decides a claim, he can do so
11 All. The New India Assurance Co. Ltd., Moradabad Vs. Sri Mohd. Aslam &Ors.
749
after compliance with the first proviso;
else, he would have no jurisdiction. He
submits that but for compliance with the
proviso to Section 21(1)(b), or for that
matter, Section 21(1)(c) of the Act of 1923,
the non-jurisdictional Commissioner does
not possess jurisdiction to process and
decide an employees' compensation claim.
The failure, therefore, on the part of the
Employees' Compensation Commissioner
who is not the jurisdictional Commissioner
to comply with the proviso to Section
21(1)(b) would vitiate the award. In support
of the aforesaid contention of his, Mr.
Srivastava has placed reliance upon the
decision of a Division Bench of this Court
in ICICI Lombard General Insurance
Company
Limited
v.
Rakesh
and
another2.

19. Mr. Mohd. Asim Zulfiquar,
learned Counsel for the claimants, on the
other hand, submits that there is no plea
raised before the Employees' Compensation
Commissioner, Moradabad on behalf of the
insurers
or
the
owner
that
the
Compensation
Commissioner
was
mandated by law to issue notice to the
jurisdictional Commissioner and the State
Government concerned before processing
the claim. Mr. Zulfiquar says that in the
absence of this plea being canvassed before
the
Compensation
Commissioner
at
Moradabad, it is not open to the insurers to
urge for the first time in appeal before this
Court that there was no adherence to the
mandatory provisions of Section 21(1)(b)
of the Act of 1923. He submits, in the
alternative, that the Act of 1923 is a social
welfare legislation that has, for its object,
welfare of employees who are poor
persons. He points out that the provision
for a non-jurisdictional Commissioner to
entertain and process the claim was brought
in
through
Workmen's
Compensation
(Amendment) Act, 1995 (amending Act
No. 30 of 1995)3 vide Section 10 thereof,
with effect from 01.10.1996. The object of
this amendment was to ameliorate the
hardships of poor workmen and employees
that would be there if they were compelled
to suit their claim before the Compensation
Commissioner,
where
the
accident
happened.

20. Dilating on his submissions, Mr.
Zulfiquar has submitted that given the
socio-economic conditions of the labour
class, to which the employees and
workmen belong, they go away from home
across large distances in search of work,
particularly,
in
factories
and
other
establishments. They have no cause to stay
in that place, but their gainful engagement
in the factory or other establishment. Once
they meet with an accident, even if they
survive it, and are not fit to work, they
would have to go back home. If they die,
their heirs and legal representatives are, of
course, not at the place where an employee
or workman might have toiled to secure his
livelihood. Therefore, to insist, in these
circumstances, that the claim would have to
be instituted before the jurisdictional
Commissioner,
would
virtually
be
depriving poor employees and workmen of
their right to seek redress, the forum being
venued at a station far away from where the
claimant is domiciled. He submits that this
would defeat the object of the Act of 1923.
He submits, therefore, that once the plea of
non issue of notice by the Commissioner at
Moradabad
to
the
jurisdictional
Commissioner
at
Begusarai
and
the
Government of Bihar was not raised before
the
Employees'
Compensation
Commissioner, it ought not to be permitted
to be raised here, after claim has been
determined on merits by the Moradabad
Commissioner.
750 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In support of his contention, Mr.
Zulfiquar has placed reliance upon the
decisions of the Supreme Court in Mayan
v. Mustafa and another4, Bharat Singh v.
Management of New Delhi Tublerclosis
Centre, New Delhi and others5 and
Morgina Begum v. MD, Hanuman
Plantation Limited6, the decision of this
Court in New India Assurance Company
Limited v. Smt. Shadab and others7 and
the decision of the Punjab and Haryana
High Court in Bajaj Allianz General
Insurance Company Limited v. Suman
Devi and others8.

22. This Court has keenly considered
the submissions advanced by learned
Counsel for the parties.

23. There is not much issue on facts
and this appeal after all, though a first
appeal, is not an open appeal on both facts
and law. It has to be determined solely
upon the substantial question involved, of
course, with reference to facts, in the
context of which, it has been formulated.
The substantial question of law involved
here has been formulated in the background
of facts that the Employees' Compensation
Commissioner who has tried, or so to
speak, employing the language of the
Statute, processed the claim, has admittedly
not issued a notice to the Employees'
Compensation Commissioner at Begusarai,
Bihar, where the accident happened on
07.06.2005. He has also not issued notice
to the State Government concerned, that is
to say, the Government of Bihar, the twin
conditions to be mandatorily fulfilled in
terms of the proviso to Section 21(1)(b) of
the Act of 1923 by a non-jurisdictional
Compensation Commissioner trying or
processing, as the Statute says, a claim by
an employee or his heirs for compensation
under the Act of 1923. Therefore, the
substantial question, in the terms that it has
been framed, has arisen. The general rule
about venue or jurisdiction of a Court
trying a civil cause or proceedings akin to it
is that the Court competent to try the action
or undertake the proceedings is the one
within the territorial jurisdiction of which
the cause of action has arisen. Different
Statutes, including the Code of Civil
Procedure, 1908, extend the venue to other
Courts, upon principles spelt out by the
law. Here, the Statue, prior to its
amendment by the Act of 1995, did not
invest
any
other
Compensation
Commissioner, except for the one in whose
area the accident took place and resulted in
the injury. There was, of course, some
modification of the rule if the workman
was employed on a seagoing vessel or a
seaman. Section 21 of the Workmen's
Compensation Act, 1923, as the Act was
called prior to the alteration of its name by
Act No. 45 of 2009, reads :

21. Venue of proceedings and
transfer.-(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 any
rules made hereunder, be done by 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.

24. Section 21(1), as amended by the
Act No. 30 of 1995, reads: :
11 All. The New India Assurance Co. Ltd., Moradabad Vs. Sri Mohd. Aslam &Ors.
751

21. Venue of proceedings and
transfer.- (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 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 a 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.

25. In order to give effect to the
provisions of the amended Section 21(1),
the Employees' Compensation (Venue of
Proceedings) Rules, 19969 have been
framed by the Central Government in
exercise of power under Section 21(1) of
the Act. Rule 3 of the Rules of 1996 reads :

3. Processing of an application -
(1) An application under section 19 or
section 22 shall be processed before or by a
Commissioner for the area in which-

(a) the accident took place which
resulted in the injury; or

(b) the employees or in case of
his death the dependants claiming the
compensation ordinarily reside; 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 the
jurisdiction over the area in which the
accident took place without his giving
notice in Form A to the Commissioner
having jurisdiction over the area and the
State Government concerned.

(2) The Commissioner under
section 21(1)(b) or (c) may initiate
proceedings afresh or he may continue the
previous
proceedings
initialed
under
section 21(1)(a) as if the same or any of its
part had been taken before him if he is
satisfied that the interest of the parties shall
not thereby be prejudiced.

26. A reading of the scheme of the
Statute, as it originally stood prior to its
amendment by Act No. 30 of 1995, spares
not a shadow of doubt that the territorial
jurisdiction to try or process, as the Statute
calls it, a claim for compensation under the
752 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, lay exclusively with the Compensation
Commissioner for the area in which the
accident
took
place.
However,
by
amendment, in order to further the
benevolent object of the social welfare
legislation, the Statute has introduced
enabling provisions that facilitate the
employee to institute a claim petition
before a Compensation Commissioner for
another area, different from one where the
accident happened.

27. A fortiori the amended provisions
confer jurisdiction on other Compensation
Commissioners as well, if an employee
moves such Commissioner, invoking his
jurisdiction in terms of Section 21(1)(b) or
Section 21(1)(c) of the Act of 1923. The
object behind introduction of this change in
the Act, as it originally stood, is obvious.
We have mentioned it hereinbefore and
need not recapitulate in all its details. It is
to facilitate a poor workman or employee
suiting his claim at a venue of his
convenience. But, the provision that
enables the workman to approach a
Compensation Commissioner, other than
the one for the area where the accident
happened,
mandates
that
before
the
jurisdiction of a Commissioner other than
the jurisdictional Commissioner is invoked,
the Commissioner, who is approached
under Section 21(1)(b) or 21(1)(c) of the
Act, must adhere to the mandatory
conditions for assuming jurisdiction in the
matter spelt out by the proviso to Section
21(1)(b), or for that matter, 21(1)(c). The
conditions are that the Commissioner, who
has been approached to process a claim
other than the one in whose area the
accident has taken place, must give notice
to the Commissioner having jurisdiction
over the area in which the accident took
place and also to the State Government
concerned. Both these notices are to be
given in the manner prescribed by the
Central Government.

28. It has to be noted here that the
first proviso to Section 21(1) (b) and
21(1)(c) is cast in prohibitive words. It says
that "No matter shall be processed before
or by the Commissioner other than the
Commissioner having jurisdiction over the
area in which the accident took place,
without giving notice...." to quote the
words employed by the Statute. The words
clearly
show
that
so
far
as
the
Commissioner within whose area the
accident has taken place is concerned, the
right of the claimant is as untrammelled as
the jurisdiction of the Commissioner to
process the claim. The jurisdiction of any
other Commissioner, that is to say, other
than the one within whose area the accident
took place, is forbidden by law, unless
notice in the manner prescribed is served
upon the jurisdictional Commissioner and
the State Government concerned. The
service of notice in accordance with the
first proviso to Section 21(1)(b), or for that
matter, 21(1)(c) of the Act of 1923 then
becomes a jurisdictional fact. A nonjurisdictional Commissioner is invested
with jurisdiction not just upon receiving a
claim with regard to an accident that took
place beyond his area, but, upon service of
notice, as mandated by the first proviso to
Section 21(1) (b) or 21(1) (c) of the Act.
The presentation of a claim to a nonjurisdictional Commissioner is a state of
things where he may proceed to assume
jurisdiction, after he issues notice in the
manner
prescribed
by
the
Central
Government
to
the
jurisdictional
Commissioner for the area where the
accident occurred, as well as the State
Government concerned; if he does not do
that, a non-jurisdictional Commissioner has
11 All. The New India Assurance Co. Ltd., Moradabad Vs. Sri Mohd. Aslam &Ors.
753
no jurisdiction to proceed, notwithstanding
the state of things on which he may act.

29. Rule 3 of the Rules of 1996, in
particular,
Rule
3(1),
reinforces
the
aforesaid construction of the proviso to
Section 21(1)(b) and 21(1)(c) of the Act of
1923. It prescribes a form, to wit, Form A
to the Rules, in which notice has to be
given
by
the
non-jurisdictional
Commissioner
to
the one
who
has
jurisdiction over the area where the
accident
took
place
and
the
State
Government concerned.

30. In ICICI Lombard General
Insurance Company Limited v. Rakesh
and another (supra) relied upon by the
learned Counsel for the insurers, it was
held by their Lordships of the Division
Bench of this Court :

4. We have considered the pros
and cons. We are of the view that there are
two situations, i.e., judicial authority
inherently lacks the jurisdiction and having
jurisdiction
not
complied
with
legal
formalities.
If
the
Commissioner
completely lacks jurisdiction then the entire
exercise subsequent thereto will render
futile and no proceeding can be proceeded
without such notice but when the Court
having jurisdiction did not discharge
obligation/s
required
to
be
done
procedurally then an appropriate order at an
appropriate stage can be passed but
depending
upon
the
facts
and
circumstances of each case. In this
particular case no such point has been
raised by the appellant preliminary or
substantially
before
the
court
of
Commissioner. The Commissioner has
proceeded on merit, delivered a judgment
and passed an order giving compensation to
the claimant on account of injury. It is for
the first time before the appellate court, the
appellant has taken the point. Although the
point can be taken at the appellate stage but
one should be diligent before the court of
first instance at the time of framing issues
and leading evidences. The objects and
reasons of Workmen's Compensation Act,
1923 is to provide compensation to certain
classes of workmen or their dependants on
account of injury caused by the accident.
Therefore, it is a beneficial piece of
legislation. In the case of beneficial piece
of legislation, law is little tilted in favour of
the beneficiaries. Hence, the requirement
for the Court is to determine the course of
payment as natural and refusal, if any, as
unnatural. One of such reason of refusal is
extortion of money by practising fraud
upon the Court. To plug the loophole, law
has provided the parameter to avoid double
benefit. The requirement of law is that the
Commissioner who is going to pass an
order having jurisdiction over the residence
of the claimant has to have knowledge or
information about proceeding, if any,
before
the
Commissioner
in
whose
jurisdiction accident took place. Therefore,
non-discharge of
such
duty
by the
Commissioner
is
definitely
an
acute
procedural irregularity but the same cannot
be
construed
as
inherent
lack
of
jurisdiction. On the basis of the ratio of
Ramchandra Keshav (supra), it is expected
that the judiciary must be much more
careful since judicial accuracy gives correct
message to the society.

31. The Division Bench in Rakesh
has taken note of the other object of
providing for notice to be given to the
jurisdictional Commissioner. It is to avoid
fraud being practised by the claimant,
simultaneously presenting, prosecuting and
realising
for
the
same
accident
compensation before two fora. This is
754 INDIAN LAW REPORTS ALLAHABAD SERIES
certainly one of the objects behind the
requirement to serve a notice upon the
jurisdictional Commissioner. But, to the
understanding of this Court, that is not
relevant to the validity of the exercise of
jurisdiction
by
the
non-jurisdictional
Commissioner. As already stated, the non
jurisdictional
Commissioner
acquires
jurisdiction only upon the fulfilment of the
conditions mentioned in the proviso to
Section 21(1)(b) or 21(1)(c) of the Act of
1923. Else, he does not have it.

32. For the same reason, the failure to
raise this plea before the Compensation
Commissioner
may
be
blameworthy
conduct on the insurers' part, that may
entitle the claimant to be compensated in
costs, but being a jurisdictional plea, pure
and simple, and one not involving any
mixed question of fact and law, it can be
permitted to be raised at the appellate stage,
without doubt. It is, after all, a plea of
jurisdiction that goes to the root of the
matter. In this connection, reference may be
made to the decision of the Karnataka High
Court in National Insurance Company v.
B. Ramaswamy and another10 where it
was observed :

6. From the records, it is seen that
the accident had occurred in Andhra
Pradesh, the injured was treated at Andhra
Pradesh and that the police complaint was
lodged there. The single circumstance that
claimants have shown their address at
Bellary in lodging the claim petition would
certainly raise a clear doubt as to the
Commissioner
for
Workmen's
Compensation who would have jurisdiction
to adjudicate the claim. This is an aspect,
which goes to the very jurisdiction of the
Commissioner
for
the
Workmen's
Compensation for entertaining the claim
petition. The legislature in its wisdom has
prescribed under Section 21 of the Act, that
the first requirement of the Commissioner
for
Workmen's
Compensation
is
to
ascertain that the claim would not lie before
any other Commissioner and if it is
possible that claim would be within the
jurisdiction of some other Commissioner,
that a notice should be issued to such other
Commissioner, before processing the claim.
This exercise is necessary obviously in
order to avoid dual claims. It is apparent
from the record that no such notice has
been issued and this procedure is a
mandatory requirement, which has been
apparently overlooked. Therefore, in the
absence of a notice, in the first instance, by
the
Commissioner
for
Workmen's
Compensation,
Bellary
to
the
Commissioner
for
Workmen's
Compensation, Kurnool, the same was not
capable of being processed in the first
instance.

7. The second circumstance, that
the claimants claimed as labourers in spite
of their advanced age and that the vehicle
involved was moving inter-State and the
improbability of loaders being carried from
Madhya Pradesh to Karnataka, being a
glaring circumstance, it is difficult to
envisage the manner in which the
Commissioner
has
proceeded
to
entertain and allow the claims. Hence,
the
very
jurisdiction
of
the
Commissioner having been questioned,
the embargo placed on the defence that
may be set up by the insurance
company and the grounds on which an
appeal can be filed, could not come in
the way of the insurance company
raising a substantial question of law
touching upon the jurisdiction of the
Commissioner to entertain the claim
petition. In this light of the matter, I
hold that appeals deserve to be allowed.
11 All. The New India Assurance Co. Ltd., Moradabad Vs. Sri Mohd. Aslam &Ors.
755

33. This position of law was
adumbrated by a learned Single Judge of
this Court in M/s. Chawla Techno
Construction Ltd. and another v. State of
U.P. and others11. In Chawla Techno
Construction (supra) it was observed :

9. A bare perusal of provisions
quoted above would go to show that under
Section 21 sub Rule (1) has been in
corporated in respect of Venue of the
proceedings
and
transfer
of
the
proceedings. Section 21 started that where
any matter under the 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) 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. This
particular
section
proviso
has
been
provided that no matter shall be processed
before or by a Commissioner other than the
Commissioner having jurisdiction over the
area which is 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.
Workmen's
Compensation
(Venue of Proceedings) Rules 1996 Form
and in exercise of power provided under
sub section (1) of Section 21 Central
Government provides that an application
under Section 19 or Section 21 shall be
processed before or by a Commissioner for
the area in which accident to take which
resulted in injury, the workman or in case
of his death the dependent claiming the
compensation ordinarily resides or (c ) the
employer has his registered office. This
particular proviso by providing that no
matter shall be possessed before the
Commissioner then Commissioner having
jurisdiction over the area in which accident
took place without his giving notice in
Form-A to the Commissioner having
jurisdiction over the area and the State
Government concerned. Sub-section 3 of
Section
21
further
provided
that
Commissioner under sub Section (1)(b) and
(c) may initiate proceedings afresh or he
may continue the previous proceedings
initiated under Section 21 (1) (a) as if the
same or any of its part had been taken
before him if he satisfied that the interest of
the parties shall not be prejudiced. Thus as
per this Rule orderly it is the Commissioner
having jurisdiction over the area in which
the accident has take place has the authority
to proceed however after giving notice in
Form A to the Commissioner having
jurisdiction in whose area workmen or the
dependent in case death claiming the
compensation ordinarily resides or the
employer has his registered.

10.