IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Review No. 142 of 2010. Decided on: 27.5.2011. __________________________________________________________ Bishan Dass and others. … Petitioners. Versus United India Insurance Co. Ltd. and another. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Anil Chauhan, Advocate. For the respondents : Mr. Ashwani K. Sharma, Advocate for respondent No.1. Mr. Y.W. Chauhan, Advocate for respondent No.2. ___________________________________________________________ Justice V.K. Sharma, J. (Oral). The petitioners are seeking relief of the judgment dated 27.4.2010 rendered by this court in FAO (WCA) No. 289 of 2005, United India Insurance Company Ltd. versus Bishan Dass and others. By way of the said judgment dated 27.4.2010, the appeal preferred by respondent No.1 herein against the order dated 17.5.2005 of the Workmen’s Compensation Commissioner (SDO) (Civil), Hamirpur (H.P.) granting compensation of Rs. 3,56,980/- in favour of the petitioners herein, was allowed. In order to set the record straight, it shall be apt to extract the text of the aforesaid judgment dated 27.4.2010 hereinbelow:- “The present appeal arises out of the order dated 17.05.2005 of the Sub Divisional Officer (Civil) exercising the powers of Commissioner, Workmen's Compensation Act, Hamirpur (H.P.), whereby compensation of Rs. 3,56,980 has been awarded in favour of the respondents (claimants) against the appellant. Proforma respondent No. 6, Smt. Sunita 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Devi, was arrayed as respondent No. 2 before the learned court below. 2. In brief, the facts of the case are that respondent No. 2, Smt. Sunita Devi, was at the relevant time owner of tractor No. HP 213577, which was insured with respondent No. 1. Admittedly, deceased, Shri Ramesh Chand, husband of proforma respondent, Smt. Sunita Devi, was on the driving wheel when the unfortunate accident leading to his death had occurred on 09.08.2002, at about 2 p.m., near village Chowki Masiyana, Tehsil & District Hamirpur. Whereas petitioners No. 1 and 2, Shri Bishan Dass and Smt. Ajudhiya Devi are parents of the deceased, petitioners No. 3 to 5, Master Ranbir Sharma, Ms. Manisha Sharma and Ms. Shivani Sharma are his minor son and daughters. 3. The parties are not in dispute in relation to other aspects of the matter except as to the status of the deceased, Shri Ramesh Chand, being the paid driver of his wife proforma respondent, Smt. Sunita Devi. The case setup by the petitioners was that the deceased, Shri Ramesh Chand, was paid driver of his wife proforma respondent, Smt. Sunita Devi, on monthly salary of Rs. 4,000/. This position is disputed on behalf of the appellant contesting respondent on the ground that in the absence of any documentary evidence as to contract of employment between proforma respondent, Smt. Sunita Devi, and the deceased, Shri Ramesh Chand, employing him as driver, the oral evidence led on behalf of the claimants cannot be taken on its face value. In this regard reliance has been placed on the law laid down by the Hon'ble Supreme Court in Gottumukkala Appala Narasimha Raju and others vs. National Insurance Company Limited and another (2007) 13 Supreme Court Cases 446 followed by this court in Brahmu and another vs. United India Insurance Company and another, 2009 (2) Shimla Law Cases 26, 3 wherein it has been authoritatively held that there may not be any bar to wife employing her husband as driver, but, however, in the absence of any contract of employment and other independent evidence to prove the fact that husband was an employee of the wife, it cannot be taken as a gospel truth that in the facts and circumstances of the case the husband was employed as driver by the wife. 4. In this case, as well no contract of employment between the deceased, Shri Ramesh Chand, and proforma respondent, Smt. Sunita Devi, to show that the former was, in fact, employed as a driver by the latter, has been brought on record. Except for the self serving statement of petitioner No. 1, Shri Bishan Dass, as PW2 that the deceased, Shri Ramesh Chand, was employed as driver by proforma respondent, Smt. Sunita Devi, there is no other independent, cogent and reliable evidence to establish this aspect. 5. In view of the above, in the face of clear pronouncement of the law on the subject by the Hon'ble Apex Court and this court, as noticed hereinabove, the appeal is bound to succeed, which is accordingly allowed with no orders as to costs. 6. The appeal stands disposed of in the above terms. 7. Pending CMPs, if any, shall stand disposed of as infructuous.” 2. The learned counsel for the review petitioners submits that the application for compensation filed by the petitioners before the Workmen’s Compensation Commissioner suffers from a formal defect and has in fact failed owing to such defect pursuant to the aforesaid judgment dated 27.4.2010 in FAO (WCA) No. 289 of 2005. The learned counsel further submits that there are sufficient grounds for allowing the petitioners to withdraw the application for 4 compensation and to allow them to institute a fresh petition under Section 163-A of the Motor Vehicles Act, 1988 (in short ‘the 1988 Act’). 3. Per contra the learned counsel for the respondent- Insurance Company contends that on the one hand the application for compensation cannot be said to suffer from a formal defect and on the other the predecessor-in-interest of the petitioners owing to whose death compensation was claimed, was not proved to be a workman and accordingly the appeal was allowed by this Court. 4. It is further submitted that permission to withdraw the application for compensation cannot be granted at this stage for the reason that the petitioners had already chosen their forum before the Workmen’s Compensation Commissioner and are thus, barred under Section 167 of the 1988 Act to now approach the Motor Accidents Claims Tribunal, under Section 163-A of the said Act. 5. I have given careful consideration to the rival contentions on behalf of the parties and have also perused the records. 6. On a bare perusal of the language employed by the Legislature in Rule 1 of Order XXIII of the Code of Civil Procedure, 1908, which reads as under, it is evident that the plaintiff or the petitioner is master of the lis and he or she can withdraw the suit or application at any time after institution of the same:- “Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit 5 nor any part of the claim shall be abandoned without the leave of the Court.” 7. In the present case, the predecessor-in-interest of the petitioners was stated to be a duly engaged driver of respondent No.2 herein, who incidentally is his wife. As already noticed, the application for compensation was allowed by the Workmen’s Compensation Commissioner. However, while relying upon the law laid down by the Hon’ble Supreme Court in Gottumukkala Appala Narasimha Raju and others vs. National Insurance Company Limited and another (2007) 13 Supreme Court Cases 446 as followed by a learned Single Judge of this court in Brahmu and another vs. United India Insurance Company and another, 2009 (2) Shimla Law Cases 26, this Court had allowed the appeal against the order passed by the Workmen’s Compensation Commissioner by holding that the evidence led by the petitioners before the said Commissioner was lacking to establish that their predecessor-in-interest was in fact engaged as a driver by respondent No.2 herein. 8. On a plain reading of sub section (1) of Section 163-A of the 1988 Act, which is extracted below, it is manifest that the same is a over-riding provision and it being so these will be no impediment in the way of the petitioners to approach the Motor Accidents Claims Tribunal, under Section 163-A of the 1988 Act:- “[163A. Special provisions as to payment of compensation on structured formula basis. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. 6 Explanation.—For the purposes of this sub- section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).” 9. In view of the above and in the facts and circumstances of the present case, I am more than satisfied that it shall be expedient and in the interest of justice as also lawful to permit the petitioners to withdraw the application for compensation filed before the Workmen’s Compensation Commissioner with liberty reserved to them to seek their remedy, if any, before the appropriate forum in accordance with law. Ordered accordingly. Consequently, the order passed by the Workmen’s Compensation Commissioner dated 17.5.2005 shall also stand set aside and as a natural corollary the judgment dated 27.4.2010 passed by this Court in FAO (WCA) No. 289 of 2005 shall also stand recalled. 10. The review petition is disposed of in the above terms, so also pending application(s), if any. (V.K. Sharma) May 27, 2011. Judge. (cr)