W.P.(C)9107/2008 Page 1 of 5 *IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 19th July, 2011 + W.P.(C) 9107/2008 M/S DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mr. Anand Nandan, Adv. Versus SMT. SANTRA DEVI & ANR. ..... Respondents Through: Mr. Prashant Katara, Adv. for R-1 CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may No be allowed to see the judgment? 2. To be referred to the reporter or not? No 3. Whether the judgment should be reported No in the Digest? RAJIV SAHAI ENDLAW, J. 1. The challenge in this petition is to the order dated 24th July, 2008 of the Commissioner under the Workmen’s Compensation Act, 1923. The order records, that there is no dispute about the employment death of late Sh. Om Prakash (i.e. the husband of the respondent No.1) employed as a Fitter with the petitioner DTC and computes the compensation under the W.P.(C)9107/2008 Page 2 of 5 Act at `72,288/- and directs payments thereof together with interest @12% per annum with effect from the date of filing of the claim i.e. 31st August, 2006. 2. The challenge by the petitioner to the said order is only on the ground that the responsibility for payment of the said compensation was of the respondent No.2 M/s Life Insurance Corporation of India (LIC) and not of the petitioner. On the said plea of the petitioner, notice of the petition was issued and the operation of the order stayed. 3. The respondent No.1 being the wife / widow of the workman has filed a counter affidavit denying any knowledge of insurance and pleading that in view of the availability of alternative remedy of appeal under Section 30 of the Act, this petition is not maintainable. 4. The petitioner has been unable to serve the respondent No.2 LIC in the last nearly three years and today also time is sought to serve the respondent No.2 LIC. 5. On the last date of hearing i.e. 8th April, 2011, the argument of the counsel for the respondent No.1 of the petition being not maintainable owing to the availability of alternative remedy of appeal was noted and the W.P.(C)9107/2008 Page 3 of 5 matter is listed today for arguments on the aspect of maintainability. 6. The counsel for the respondent No.1 relies on the judgment of the Division Bench of the Punjab and Haryana High Court in Piara Singh Vs. Commissioner, Workmen Compensation 1987 LAB.I.C. 818 to contend that owing to the availability of remedy of appeal, the writ would not be maintainable. 7. I have enquired from the counsel for the petitioner as to how the petitioner can contend that the liability is of the respondent No.2 LIC and not of the petitioner. A perusal of Section 3 of the Act shows that it creates the liability of the employer only and not of insurance company from which the employer may have obtained insurance. The counsel for the petitioner contends that there are resolutions of the petitioner to the said effect and seeks time to produce the same. However, the resolutions even if any of the petitioner (which ought to have been relied upon in the writ petition and of which there is no mention in the writ petition) cannot be contrary to the Act. Section 17 of the Act makes any contract or agreement, whereby a workman relinquishes any right of compensation from the employer, as null and void. W.P.(C)9107/2008 Page 4 of 5 8. The counsel for the petitioner has then referred to Section 12 of the Act to contend that the petitioner could have contracted out the liability to the insurance company. There is no merit in the said contention also of the counsel for the petitioner. Section 12 envisages the position of a contractor and a principal employer and can by no means be said to be relatable to contract of insurance. The Supreme Court in P.J. Narayan Vs. UOI (2006) 5 SCC 200 has held that there is no statutory liability on the insurance company; the statutory liability under the Act is on the employer and in the absence of any statute to that effect, insurance companies cannot be forced by Courts to take on the liability. Thus the sole ground on which the order has been challenged has no merit. 9. The counsel for the petitioner has also argued that once notice has been issued and one of the respondents remains unserved, arguments ought not to be heard. Such dilatory argument on the basis of litigant’s own default in effecting service cannot come in the way of hearing of the petition which is still at the stage of show cause and when no merit is found in the challenge made to the impugned order. 10. The counsel for the petitioner seeks liberty to avail of the remedy of W.P.(C)9107/2008 Page 5 of 5 appeal. The only ground on which the order was challenged was as aforesaid and which has not found favour and no liberty can be granted to now take up the same ground in appeal. The counsel for the petitioner however states that if the petitioner desires to challenge the order on other grounds, liberty to avail of the alternative remedy on those ground(s) be given. If at all any other ground of challenge is made out, the petitioner shall have liberty in accordance with law. 11. The petition is therefore dismissed. Cost of litigation has already been paid. RAJIV SAHAI ENDLAW (JUDGE) JULY 19, 2011 ‘gsr’