IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD. THURSDAY THE EIGHTH DAY OF OCTOBER TWO THOUSAND AND NINE. PRESENT THE HONOURABLE SMT. JUSTICE T. MEENAKUMARI AND THE HONOURABLE SRI JUSTICE G.V. SEETHAPATHY WRIT APPEAL NO. 6 1 0 OF 2009. Between : The Singareni Collieries Company Limited Represented by its Chairman & Managing Director, Hyderabad & Ors. …. Appellants V/s. Bandari Lingaiah, s/o. Rajaiah R/o Chennur (v), Chennur Revenue Mandal Adilabad district & Ors. …. Respondents Counsel for the Appellants : M/s. K. Srinivasa Murthy Counsel for the Respondents : Sri S.Lakshma Reddy Sri K. Venkatesh Gupta THE HONOURABLE SMT. JUSTICE T. MEENAKUMARI AND THE HONOURABLE SRI JUSTICE G.V. SEETHAPATHY WRIT APPEAL NO. 6 1 0 OF 2009. J U D G M E N T : (Per the Hon’ble Smt.Justice T.Meenakumari) The writ appeal is filed against order dated 24-10-2008 passed in WP.No.2345 of 2002 by the learned single Judge, whereby the learned single Judge while disposing the main writ petition held that firstly, the nominee of the deceased is entitled to receive amount for the accidental death as envisaged in items 3 to 5; secondly, respondent No.1 shall calculate the compensation under item No.6 in accordance with the provisions of the Act within a period of four weeks from the date of receipt of a copy of the order and pay the said sum along with the amounts covered by items 3 to 5 within the said time; thirdly, if any amount under any of the above items is already paid, the same shall be deducted from the amount payable to the nominee; and fourthly, respondent No.1 shall also pay the sum of Rs.3,00,000=00 in lieu of employment, within the above mentioned time. 2. The main writ petition has been filed seeking mandamus to declare the action of the respondents in not releasing the accidental death benefits to the petitioner as illegal, arbitrary and unconstitutional and sought for a direction to the respondents to release the accidental death benefits forthwith and appoint the petitioner in any suitable post. 3. The facts of the case are that the father of the petitioner, by name, Bandari Rajaiah was employed as “Coal Filler” in respondent No.1 company. It is stated that while he was working in underground mine of 1 and 1-A Incline of Singareni Collieries Company Limited, Chennur, Adilabad district on 12-10-2000, he died at about 12 noon due to insufficiency of oxygen in the underneath of mine. Thereafter, a complaint was lodged and the same was duly registered as FIR.No. 79 of 2000 of Chennur Police Station and postmortem examination was conducted by the Deputy Civil Surgeon, Govt. Civil Hospital, Chennur, Adilabad district, on 13-10-2000 at 10:45 a.m., wherein the doctor observed that the approximate time of death of Rajaiah is about 24 hours and his death occurred due to respiratory failure caused by Anoxia and Asphyxia and thereafter he issued postmortem examination report. A final report was submitted by the police stating that Bandari Rajaiah son of Posham aged about 43 years, Coal Filler, Chennur-I Incline of Singareni Collieries Company Limited, entered into the mine along with other workers and while working in the said mine, at about 12 noon he could not get sufficient oxygen in the underneath of the mine due to which firstly he became unconscious and the same was noticed by his co-workers. Thereafter the co-workers tried to bring up him from the mine but in the meantime, he died and there is no foul play suspected behind his death. After completion of investigation the Sub-Inspector of Police, Chennur, filed final report in Cr.No.79 of 2000, under section 174 Cr.P.C. of Chennur Police Station and referred the complaint as accidental death due to insufficiency of oxygen. The grievance of the petitioner is that respondent No.1 Company denied payment of compensation to him and his family members for the accidental death of his father. 4. On appreciation of facts and circumstances of the case and after hearing both parties, the learned single Judge while disposing of the main writ petition observed that the death of the deceased, Bandari Rajaiah, was accidental, the Act, which is a self-contained Code, fixed the rates of compensation and directed the respondent No.1 to calculate the compensation under item No.6 in accordance with the provisions of the Act within a period of four weeks from the date of receipt of order and pay the said sum along with the amounts covered by items 3 to 5 and further directed respondent No.1 to pay the sum of Rs.3,00,000=00 in lieu of employment, since the petitioner’s mother herself made a request. The learned single Judge held that the respondent No.1 should calculate the amount under the Workmen’s Compensation Act and should be paid to the nominee of the deceased. Aggrieved thereby, the present writ appeal is filed by the Singareni Collieries Company Limited. 5. It is contended by the learned standing counsel the respondent’s father died during the course of employment is an undisputed fact. But however, the observation of the learned single Judge that there is no need for the respondent to approach the competent authority under Workmen’s Compensation Act is contrary and the learned single Judge erred in coming to the conclusion that the opinion expressed by the doctor, on the basis of which, the Investigating Officer filed his final report under section 174 Cr.P.C., and the same are conclusive proof of death and the learned standing counsel has further submitted that the criminal case has been closed and that is the reason as to why there is no defence for the appellant-company to defend its case. It is also submitted that the amount had been calculated and paid to the respondent as a contempt case is filed and the learned standing counsel has submitted that this case shall not become a precedent in future cases. 6. On the other hand, the learned counsel for the respondent-petitioner contended that the fact remains that the respondent’s father died during the course of employment is an undisputed fact and the appellant-company is bound to pay compensation under the Workmen’s Compensation Act as per the schedule and as a matter of police the appellant-company can dispute in other cases where there is a dispute with regard to the cause of death. The learned counsel for the respondent No.1-petitioner submitted that the learned single Judge while relying a decision of the Supreme Court in HARBANSLAL SAHNIA V/s. INDIAN OIL CORPORATION, reported in (2003) 2 SCC-107 has rightly held that law is well settled that availability of alternative remedy is not an absolute bar as it is only a rule of convenience rather than rule of law. 7. After hearing the rival contentions of both the parties, we see some force in the contention raised by the learned counsel for the respondent No.1-petitioner. It is also a fact that criminal case is closed and the appellant-company has no opportunity to defend itself with regard to the report submitted by the Sub-Inspector of Police, Chennur, in Cr.No.79 of 2000 dated 13-10-2009 for the offence under section 174 Cr.P.C. before the Second Class Executive Magistrate-cum-Mandal Revenue Officer, Chennur, Adilabad district. 8. Under the above circumstances, we are of the opinion that in the particular circumstances of this case, as the cause of death of the deceased, Sri Bandari Rajaiah, remains an undisputed fact, as it happened during the course of employment, we are of the opinion that the order of the learned single Judge can be modified to the extent that it is the policy of the appellant-company to pay terminal benefits to those who died during the course of employment and it appears that the amount has already been calculated under the schedule of Workmen’s Compensation Act and paid to the respondent No. 1-petitioner. We deem it appropriate to further observe that the factum of death of the respondent No.1’s father remained undisputed, as it happened during the course of employment, the observation of the learned single Judge that the final report under section 174 Cr.P.C., filed by the Sub-Inspector of Police, Chennur, Adilabad district can be taken as conclusive proof of cause of death cannot be a basis to arrive at a conclusion, as the appellant-company had no opportunity to defend its case before this court though the amount already been paid and more so, the cause of death remained undisputed. However, we further make it clear that the observation made hereinabove with reference to the respondent No.1-petitioner should have approached the Tribunal under the Workmen’s Compensation Act, need not be taken as precedent in future cases. 9. Subject to the above modification, the writ appeal is disposed of at the stage of admission. In the circumstances, there shall be no order as to costs. __________________________ JUSTICE T. MEENA KUMARI __________________________ JUSTICE G.V. SEETHAPATHY 08-10-2009. I s L