fa201.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 201 OF 2011 United India Insurance Co. Ltd. Through its Divisional Manager Divisional Officer, Aurangabad .. APPELLANT VERSUS 1 Jayashree w/o Prakash Undre age 32 years, occ. household r/o Washi, Tq. Washi Dist. Osmanabad 2 Pooja d/o Prakash Undre age 12 years, occ. education r/o as above. 3 Poonam d/o Prakash Undre age 10 years, occ. education r/o as above. 4 Rakesh s/o Prakash Undre age 7 years, occ. education r/o as above. ( Respondent nos. 2 to 4 being minors u/g of natural mother i.e. respondent no.1 Jaishree w/o Prakash Undre ) 5 Shivaji s/o Pralhad Undre Appeal dismissed age 65 years, occ. nil against respondent 5 r/o as above. vide order dt.4-2-21010 6 Radhika w/o Shivaji Undre age 60 years, occ. household fa201.11 2 r/o as above. 7 Balkirshna s/o Dharamraj Aute age major, occ. agriculture & pensioner r/o Jamgaon, Tq. Barshi At present Pankaj Kirana Stores Darewadi (Solapur Road) Tq. & Dist. Ahmednagar .. RESPONDENTS Mr. S.G. Chapalgaonkar, advocate for appellant. ===== CORAM : A.V. POTDAR DATE : 7 th DECEMBER, 2011 ORAL JUDGMENT : 1. Heard. Respondent Nos. 1 to 4 and 6 to 7 are absent even though duly served. 2. Admit. 3. Challenge in this appeal is to the order passed below exh. 5 in W.C.A. No. 32/2005 by Civil Judge, Sr.Dn., Osmanabad thereby allowing the application for interim relief under section 140 r/w section 143 of the Motor Vehicles Act and directing to pay interim compensation to the tune of Rs.50,000/-. fa201.11 3 4. It appears that respondent nos. 1 to 6 have filed an application under Workmen’s Compensation Act before the Commissioner for Workmen Compensation, Osmanabad / Civil Judge, Sr.Dn., Osmanabad on the ground that deceased – husband of respondent no. 1, father of respondent nos. 2 to 5 and son of respondent no. 6, met with vehicular accident in which his death occurred on 29-11-2004. At the time of accident, deceased Prakash was driving the vehicle. It is contended in the application that deceased Prakash was serving with respondent no. 6 and the accident took place during the course of employment. It appears that after service of summons appellant who is arrayed as respondent no. 2 in the said application filed written statement cum say to challenge the application. After hearing the parties, it appears that learned Civil Jude, Sr.Dn., Osmanabad / Commissioner for Workmen’s Compensation was pleased to allow the interim application vide judgment and order dated 5-9-2006 which order is impugned in this appeal. 5. During the course of submissions, the only point raised in this appeal is that even though the point of jurisdiction is not raised in the written statement, still the fact remains that the Commissioner for Workmen’s fa201.11 4 Compensation is not vested with the powers under Motor Vehicles Act and, in such circumstances, the order passed is without jurisdiction and is liable to be quashed and set aside. Considering this submission across the bar, the points for consideration are as under : 1 Whether the Commissioner under Workmen’s Compensation Act is empowered / vested with the powers of the tribunal under Motor Vehicles Act ? 2 If the finding on point no. 1 is in the negative then whether the order impugned is sustainable in law ? 6. Ground No. III in the appeal memo reads as : III That, the Commissioner for Workmen’s Compensation has no jurisdiction to pass order under provisions of Sec. 140 of M.V. Act. Therefore, order under challenge is without jurisdiction, hence requires to be quashed and set aside. . In the light of submissions across the bar advanced by learned counsel for the appellant and on perusal of the provisions of Workmen’s Compensation Act, it is clear that the Commissioner for Workmen’s Compensation is not empowered with the powers under Motor Vehicles Act. At this juncture, it is useful to advert to the observations of this Court in the matter of New India Assurance Co. Ltd. vs. Nirmalabai Rajaram Gosavi & others reported in 2009(1) Bom.C.R. 305 wherein it is observed in paragraph fa201.11 5 no. 8 thus : 8 Perusal of the said Act of 1923 shows that there is no power conferred on the Commissioner to pass such an interim direction. Moreover, section 23 of the said Act of 1923 makes it abundantly clear that the Code of Civil Procedure, 1908 will apply only for the purpose of taking evidence on oath, for enforcing attendance of the witnesses and compelling production of documents and material objects. In any event, there is no power vesting in the Commissioner to pass an interim order directing the opponents in a claim petition to pay interim or ad hoc compensation. . Apart from it, provisions of the Act of 1923 provide for claim of compensation in respect of death or permanent disablement of any person resulting from accident involving use of motor vehicle which is referred in section 140(1) of the Act of 1988. Going by the case pleaded by the claim, obviously, the provisions of section 140(1) of the Act will have no application as this is not a case where accident was a result of motor vehicle owned by the employer of the deceased. Application appears to be filed under the provisions of Motor Vehicles Act and not under the provisions of Workmen’s Compensation Act. As the provisions under Workmen’s Compensation Act are totally silent as to whether the Commissioner acting under the Workmen’s Compensation Act is empowered / vested with the powers under Motor Vehicles Act, exercise of powers under section 140 r/w section 143 of the fa201.11 6 Motor Vehicles Act by the Commissioner appointed under Workmen’s Compensation Act, is without any jurisdiction. In law if any order is passed without jurisdiction, then passing of such order is nullity. 7. Apart from this legal position, the order passed by the learned Civil Judge, Sr.Dn., Osmanabad is required to be considered from one another angle. The Member of the Motor Accident Claims Tribunal is the officer designata at par with the officer designated with the powers of the District Judge or Additional District Judge. The jurisdiction vested with the Commissioner under Workmen’s Compensation Act vests with the officer designated as Civil Judge, Sr.Dn., and it cannot be termed at par with the officer having designation of the District Judge. The fact remains that if the person to be appointed as the Member, Motor Accident Claims Tribunal, must be a judicial officer having designation of District Judge or equivalent to the District Judge. Certainly, Civil Judge, Sr.Dn., cannot be equated with the powers vested with the District Judge. Considering this fact, even if the legal position is to be considered from that angle, the powers vested with the Civil Judge, Sr.Dn., cannot be equated with the powers of the District Judge who can be appointed as the Member, Motor Accident Claims Tribunal. Considering this legal position, the presiding officer having fa201.11 7 designation of Civil Judge, Sr.Dn., cannot be equated with the judicial officer vested with the powers of District Judge. Thus, the order passed by the Civil Judge, Sr.Dn., holding he charge of the Commissioner under Workmen’s Compensation Act is without jurisdiction. Thus, finding to be recorded on point no. 1 is in the negative. In view of negative finding on point no. 1, the order impugned is nullity in the eye of law. In substance, appeals succeeds. As the order impugned is passed without jurisdiction, the same is hereby quashed and set aside. Appeal is allowed. Considering the peculiar circumstances, no order as to costs. 8. Statutory amount deposited in this court be refunded to the appellant. ( A.V. POTDAR ) JUDGE dyb