MUKAMBIKA FASHIONS BANGALORE Vs. PADMINI AMALANATHAN

JUDGEMENT

(1.) THE employer-respondent is in appeal under Section 30(l)(a) of Workmen Compensation Act 1923 (hereinafter referred to as the Act for the sake of brevity) questioning the correctness and legality of the judgment and award passed in WCA/B2/FC/CR/No.24/2000 passed by the Commissioner for Workmen Compensation. Sub-Division II. Bangalore-29 dated 30- 4-2002 whereunder the claim petition filed by the legal heirs of the deceased employee has been allowed in part.

(2.) THE facts leading to the filing of this appeal are as under and parties are referred to as per their ranks before the Commissioner for Workmen Compensation.

(3.) IT is the contention of Sri Nagarajappa that there has been delay in filing the claim petition and the delay having not been properly explained the order assailed in this appeal also does not spell out the reasons as to why delay has been condoned and for what reasons and hence he submits that on this short ground of application itself being belated same is liable to be dismissed. He would also submit that there was no relationship of employer and employee and inspite of opportunity having been sought for by the employer by filing an application on 23-10-200 1 to recall R.W. 1 to tender evidence in this regard having not been considered, the order in question is opposed to the principles of natural justice and accordingly he seeks for setting aside the judgment and award passed by the Commissioner for Workmen Compensation. He would also submit that death was not due to and in the course of employment and arising out of the employment and as such judgment and award is liable to be set aside. He would draw the attention of the Court to Section 10- B of Workmen's Compensation Act read with Rule 11 of the Workmen Compensation Rules, whereunder there is no report made available on record reporting the death due to fatal accident and as such it has to be construed that there is no accident at all and thus claim petition ought not to have been entertained by Commissioner for Workmen Compensation. On these grounds he seeks for dismissal of the claim petition and prays for allowing of the appeal. In support of the submission regarding death not occurring in the course of employment or arising out of employment he relies upon the judgment of the Apex Court in Jyothi Ademma Vs. Plant Engineer, Nellore and Another reported in (2006) 5 SCC 513.