JUDGMENT
P.C. Pathak, J.
1. The employer has filed this appeal under Order 43, Rule 1(d), CPC against order of Commissioner for Workmen’s Compensation rejecting his application under Order 9, Rule 13 C.P.C.
2. Respondent No. 1 Smt. Ranchibai made an application before the Commissioner for award of compensation of Rs. 27,000/- for the death of her husband Kallu Thakur while driving truck MPK 5655 on 6th May,1983. The appellant as also respondent No. 2 Insurance Company filed reply denying their liability. The claimant examined herself and one Dhaniram. The case was adjourned on 22-1-1985 for recording the evidence of the appellant. On 22-1-85 counsels for the appellant reported no instructions on behalf of the Insurance Company also it was stated that it does not wish to examine any witness. The Commissioner proceeded ex-parte against the appellant and passed an order dated 24-1-1985 awarding compensation of Rs. 27,000/- to the respondent.
3. On 14-2-1985, the appellant made application before the Commissioner for setting aside ex-parte order, on the ground that he was bed ridden due to illness since 18-1-1985 and therefore he could not instruct his counsel on 22-1-1985 to appear on his behalf. After notice to the parties, the application was fixed for recording of evidence on 22-11-85. On this date, the appellant remained absent. His counsel requested for adjournment on the ground that the appellant had not returned from Ajmer. The Commissioner rejected the prayer. The appellant’s counsel then examined the doctor in support of the application and closed his evidence. During cross-examination the doctor admitted that the appellant was not so seriously ill as to be immobile. He had only advised him to take rest. The Commissioner by his impugned order held that the appellant failed to establish sufficient cause for his absence on 22-1-85 and consequently rejected the application.
4. Aggrieved by the order refusing to set aside ex-parte order, the appellant filed this appeal under Order 43, Rule 1(d), CPC. He also filed an application under Order 41, Rule 27, CPC to admit policy covering the vehicle involved in the accident issued by the Insurance Company.
5. The first question for decision is whether the appeal is maintainable. Section 30 of the Workmen’s Compensation Act, 1923 (herein after called ‘the Act’) provides appeal against certain specified orders detailed in Clauses (a) to (e) of Section 30(1). Order rejecting an application under Order 9, Rule 13 is not included in any one of those clauses. My attention was drawn to Rule 41 of the Rules framed under the Act, which is identical with the rules framed by the State of M.P. which runs as under:
Rule 41.–Certain provisions of the Code of Civil Procedure, 1908, to apply.–Save as otherwise expressly provided in the Act or these rules the following provisions of the first Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 13 and 15 to 30, Order IX, Order XIII, Rules 3 to 10, Order XVI, Rules 2 to 21, Order XVII, Order XVIII, Rules 1 and 2 shall apply to proceedings before Commissioners, in so far as they be applicable thereto:
Provided that
(a) For the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alteration not affecting the substance as may be necessary or proper to adopt them to the matter before him;
(b) The Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions, if he is satisfied that the interests of the parties will not thereby be prejudiced.
6. By the said rule certain provisions of the Code of Civil Procedure apply to the proceedings before the Commissioner. Order 9, CPC including Rule 13 is thus applicable and the appellant rightly made application before the Commissioner to set aside the ex-parte order. Rule 41 does not include Order 43, Rule 1 or any other provision of the C.P.C relating to appeal under which the appellant could file appeal before this Court.
7. Reference to Section 141, CPC, was made, which is reproduced below:
Section 141–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 jurisdiction.
In Kallianikutty Amma v. The State of Kerala , it was held that:
Section 141, Civil Procedure Code restricted to procedural matters cannot stretch to substantive rights of appeals which have to be conferred specifically by the special statute like the Land Acquisition Act. As such an order dismissing for default a petition for restoration of a reference under the Land Acquisition Act is not appealable.
A right of appeal cannot be claimed merely on the strength of Section 141. Gaja v. Mohd. Farukh and Ors. and Birendra Nath Biswas v. Monorama Devi and Ors. .
8. Order 43, Rule 1(c) which provides for an appeal against an order under order 9, Rule 9, CPC refusing to restore a suit dismissed for default cannot be applied by analogy to cases in which some other proceeding is dismissed for default. It was therefore held that there is no right of appeal against an order refusing to restore an application to set aside the dismissal of a suit for default. See Nathu Prasad v. Singhai Kapurchand .
9. It was argued that the word ‘suits’ Under Section 141 is used in an comprehensive sense so as to include appeals which are only continuation of suits. Hence, the procedure prescribed by the Code in regard to appeals governs appeals arising out of miscellaneous proceedings. The argument cannot be accepted. A proceeding in appeal cannot be said to be original proceeding as contemplated by Section 141. See Akhatarunnisa Begum and Ors. v. Ahmad Khan Qadarkhan 1970 Mah. L.J. 699.
10. Recently I had the occasion to examine similar question in M.A. No. 364/83 Mangal Chand Jain v. Ganeshram Sahu decided on 18-8-88. In that case against a similar order dismissing application under Order 9, Rule 13 CPC was challenged by filing appeal under Section 30 of the Act. In that case, I held that no appeal lay under Section 30 the Act. 1 further held that right to file an appeal is substantive right and unless the statute confers that right on a party, appeal cannot be filed by the aggrieved party.
11. It was next argued that both the non-applicants namely appellant and the Insurance Company were represented before the Commissioner by a common counsel even through the truck was covered by insurance policy, the Insurance Company denied its liability to indemnify the appellant and alternatively its liability was restricted to the policy. It is true that none filed the Insurance Policy before the Commissioner. This Court also cannot admit the policy as additional evidence since the appeal is not maintainable. The policy prima facie shows that the vehicle was covered by it on the date of accident and therefore the appellant is entitled to claim indemnity under Section 12(2) of the Act. The Insurance Company is now an undertaking of the Government and it must act with all fairness to abide by the contract undertaken under the said policy irrespective of the Commissioner exonerating Insurance Company. On the appellant’s application, after he had satisfied the claim to the claimant, the Insurance Company will, I hope, would examine the matter afresh and in case if it finds that the vehicle was covered by the policy in respect of driver also, the Insurance Company may honour the commitment. On failure the appellant will be free to approach the civil court for the redress.
12. Subject to the aforesaid observations, the appeal fails and is dismissed without any order as to costs.