KAREEM AHMED H. Vs. RAMAKKA

JUDGEMENT

(1.) The present appeal is filed impugning the order dated 25.2.2011 passed by the Labour Officer and the Commissioner for Workmen's Compensation, Tumkur District, Tumkur (for short, 'the Commissioner') in Ka. Aa Tu: Kapaka: CR: MISC. ETC. 2011 IN KaAa Tu: KaPaKa/ CR/147/07. The Commissioner by the impugned order has rejected the application filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure, 1908 seeking recall of the ex-parte order dated 4.11.2009.

(2.) The present appeal emanates in the following circumstances. The Respondent Nos. 1 to 5 filed a claim petition in proceedings in WCA No. 147/2007 under the Employees' Compensation Act, 1923 asserting that they were the legal representatives of the deceased Kariyanna who suffered fatal injuries in the course of employment with the appellant. The Respondents Nos. 1 to 5 arraigned the insurer as one of the corespondents along with the appellant. The notice of this claim petition was issued to the appellant, but the appellant was not served. Thereafter, service of notice through substituted service was permitted and notice of hearing date of the proceedings was published in a local journal called "Ekesh Patrike". The appellant, in terms of this public notice, was required to appear before the Commissioner on 13.11.2008. However, the appellant did not appear before the Commissioner and therefore, the claim petition was considered ex-parte and allowed by order dated 4.11.2009. As there was no compliance with the order dated 4.11.2009, communication dated 15.3.2010 was addressed by the Commissioner to the Deputy Commissioner for enforcement of the award. It is at this point of time, the appellant filed an application under Order IX Rule 13 of the Code of Civil Procedure for recall of the ex-parte order dated 4.11.2009.

(3.) The Commissioner rejected this application under Order IX Rule 13 of the Code of Civil Procedure by the impugned order dated 25.2.2011 considering that the intimation for enforcement of the award was sent to the same address as mentioned in the original claim petition. The appellant had received such intimation. This according to the Commissioner was conclusive that the appellant was also served with the notice of the claim petition and that the appellant had not participated despite such notice.