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MCA/143020/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION No. 1430 of 2008
In
FIRST
APPEAL No. 1085 of 2007
WITH
MISC.CIVIL
APPLICATION No. 1431 of 2008
In
FIRST
APPEAL No. 1086 of 2007
WITH
MISC.CIVIL
APPLICATION No. 1432 of 2008
In
FIRST
APPEAL No. 1087 of 2007
WITH
MISC.CIVIL
APPLICATION No. 1433 of 2008
In
FIRST
APPEAL No. 1088 of 2007
WITH
MISC.CIVIL
APPLICATION No. 1434 of 2008
In
FIRST
APPEAL No. 1089 of 2007
WITH
MISC.CIVIL
APPLICATION No. 1435 of 2008
In
FIRST
APPEAL No. 1090 of
2007
=========================================================
PABABHAI
MAYABHAI HARIJAN & OTHERS
Versus
NEW
INDIA ASSURANCE CO.LTD. & OTHERS
=========================================================
Appearance :
MR
BALRAM D JAIN for Applicant 1 - 2.
MR KV GADHIA for Opponent :
1,
None for Opponent: 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 16/07/2008
COMMON
ORAL ORDER
The present Misc.
Civil Applications are filed by the learned advocate for the
original claimants. The title of the applications state that the
applications are for ?Sreview?? [of the judgment in the respective
First Appeals stated above]. However, the prayer made in the
applications is for ?Srecall?? of the judgments. ‘Review’ and
‘recall’ are distinct in legal parlance. That apart, the affidavit
in support of the applications is not sworn by the respective
petitioners but it is sworn by learned advocate Mr. Balram D. Jain.
One therefore fails to understand whether the applications are filed
at the instruction of the applicants or at all. Yet, though the
applications deserve dismissal on these technicalities, this court
proposes to dispose of these applications on merits.
The learned
Commissioner while passing the award in the respective Workman
Compensation cases has specifically held that the Insurance Company
alone is liable to pay the entire award, including interest and
penalty. The Insurance Company has, therefore, filed the present
appeals challenging the award whereby it is directed to pay interest
and penalty.
If the present
applicants were aggrieved by the award holding only the Insurance
Company liable for the entire award, interest and penalty, they ought
to have preferred either an appeal or a cross-objection for holding
the employer also liable jointly and severally. Having not done so,
the present applicants cannot pray for any relief in the appeals
filed by the Insurance Company. The applications, therefore, deserve
to be rejected.
That apart, this
Court was aware and conscious of this fact even while disposing of
the aforesaid appeals, inasmuch as this Court, placing reliance on
the judgment rendered by the Apex Court in the case of NEW INDIA
ASSURANCE CO. LTD. Vs. HARSHADBHAI AMRUTBHAI MODHIYA reported in
2006 ACJ 1699 has observed that ?Sthough the learned Commissioner
has passed the award only against the Insurance Company and has not
passed any award against the respondents No.2 and 3 herein and the
same is not challenged by the claimants, considering the fact that
the Act is a social welfare legislation, it is held that the employer
shall be liable to pay the amount of interest to the claimants??.
Thus, having carefully considered the fact that the claimants have
not challenged the award, yet taking a humanitarian view in the light
of the fact that the Act is a social welfare legislation, this Court
directed that the employer shall be liable to pay the amount of
interest to the claimants. The sympathy shown by the Court cannot be
taken for a ride.
In the aforesaid
fact situation, this Court is not inclined to entertain the present
applications, and the same are rejected.
Registry
to keep a copy of this order in each of the above matter.
mathew [H.B.ANTANI,
J.]
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