RAMYAS TRIPATHI Vs. MURARILAL BANSAL

JUDGEMENT

(1.) THIS is a miscellaneous appeal under Section 30 of the Workmen's Compensation Act against the order dated 20.10.2011 passed by the Commissioner, Workmen's Compensation, Satna in Case No. 19/2006 Workmen's Compensation Act. A compensation application was filed by the appellants on account of death of Ram Jatan, who was said to be an employee of the respondent No. 2 and had succumbed to death on account of accident while in the employment. The said claim application of the appellants was dismissed in default as nobody appeared on behalf of appellants to adduce any evidence or to prosecute the claim case. On coming into know about the fact that such an application made by the appellants has been dismissed in default, the appellants approached the Commissioner, Workmen's Compensation by way of making an application under Order 9 Rule 4 of the Code of Civil Procedure for restoration of their original claim case application dismissed in default. After issuing notices of the said application to the respondents and after recording the evidence, the learned Commissioner, Workmen's Compensation, Satna came to the conclusion that no case was made out to restore the application of the appellants and rejected the same. Hence, this appeal was required to be filed.

(2.) IT is vehemently contended by the learned counsel for the appellants that even if the entire procedure of CPC was not made applicable to the proceedings initiated under the provisions of Workmen's Compensation Act, the powers were to be exercised by the Commissioner, Workmen's Compensation to restore the claim application of the appellants because there is no bar prescribed under the Act that once the claim case is rejected in default, a fresh application cannot be filed. It is contended that hard and fast rule cannot be made applicable, and since the application filed by the appellants was on bonafide reasons, the same was required to be allowed and the claim application of the appellant was liable to be restored. Having failed to do so, serious prejudice is caused to the appellants and, therefore, the order passed by the Commissioner, Workmen's Compensation is liable to be set aside.

(3.) AFTER hearing the learned counsel for the parties at length and after perusing the record minutely it is seen that though a defence was raised by the respondents by filing reply that the appellants were having the knowledge of the pendency of their claim case, but they have not taken any step to produce any evidence, on the other hand, got the said claim case dismissed in default, but no evidence to this effect was produced. It was the stand taken by the appellants in their application for restoration of the claim case that they engaged a counsel, paid him fees, who had not intimated them about the date fixed in the claim case and, therefore, they were unaware of the proceedings which were being done in their claim case. The fact remains that earlier application for grant of compensation under the Motor Vehicles Act was filed, but when it was found that the claim was to be granted under the provisions of Workmen's Compensation Act, the appellants had approached the competent court for grant of such a relief. Nothing is indicated in the order passed by the Commissioner, Workmen's Compensation that on any date appellants were present in the court or the next date was fixed within their knowledge, despite this, they had not appeared before the court nor had produced any evidence in proof of their claim. In absence of such a finding, it cannot be held that the appellants were aware of the date fixed in the said claim case and deliberately knowingly they have committed a default of not appearing in the court or of not producing the evidence in proof of their claim. Even otherwise, under Order 9 Rule 4 of the Code of Civil Procedure a fresh application for grant of compensation could have been filed as the same is not barred only because the earlier claim application was dismissed in default and not on merit. Keeping in view the aforesaid, it was necessary on the part of the Commissioner, Workmen's Compensation to allow the application of the appellants and to permit them to adduce the evidence in their claim case, which ought to have been decided on merits rather than dismissing the same in default.