TARAS PAL Vs. WORKMAN COMPENSATION COMMISSIONER

JUDGEMENT

(1.) Heard Sri P.S. Pundir, learned Counsel for the petitioner and Sri A.K. Shukla, learned Counsel for respondent No. 3, New India Insurance Company Ltd. Inspite of sufficient service no one appeared on behalf of claimant respondent No. 2, Bijendra Pal Respondent No. 2 filed a claim petition before workman compensation Commissioner/Assistant Labour Commissioner, U.P. Muzaffar Nagar, in the form of WCA 39 of 2004 Bijendra Pal v. Taras Pal and New India Assurance Company. In the said case petitioner, the truck, owner was served through publication in a newspaper by the name of Royal Bulletin. The case of the claimant respondent No. 2 was that his brother Bhushan was truck driver on the truck of petitioner and he died in an accident in the night of 21st/22nd November, 2002. New India Assurance Company filed written statement in which the fact that truck was insured with them was not specifically denied. The workman Compensation Commissioner on 23.3.2006 allowed the claim petition for Rs. 4,03,320/- which was directed to be paid by the petitioner. Thereafter on 25.5.2006 petitioner filed restoration application. The restoration application was rejected on 3.8.2006 by the workman Compensation Commissioner which order has been challenged through this writ petition. Petitioner also filed a recall application before the workman Compensation Commissioner which was rejected on 4.10.2006. The said order has also been challenged.

(2.) The restoration application was rejected only on the ground that it was not stated that how petitioner came to know about the ex parte order on 23.5.2006.

(3.) Under Article 123 of the Schedule to the Limitation Act it is provided that substituted service (through publication) shall not be deemed to be due service for the purpose of restoration. Service was affected through publication in a newspaper which has got virtually no circulation. The Supreme Court in M.K. Prasad v. P. Arumugam, 2001 AIR(SC) 2497 has held that while deciding restoration application and delay condonation application filed therein Court should keep in mind the nature of the exparte judgment extent of property involved and stake of the parties. In the said case the exparte judgment was unreasoned. In the instant case also detailed reason has not been given as to why liability was not fastened upon Insurance Company. The only reason given in the impugned order in this regard is that claimant could not file any document regarding valid insurance. However, in this regard the written statement filed by the Insurance Company was not properly perused. In V.K. Industries v. M.P. Electricity Board, Rampur, 2002 AIR(SC) 1151 it has been held that while setting aside exparte decree reasonable condition of deposit may be made. In the said case suit had been decreed for about Rs. 4,00,000/-. The Supreme Court directed that restoration should be allowed on deposit of Rs. 2,00,000/-.