STATE OF M.P. THROUGH THE EXECUTIVE ENGINEER, PUBLIC HEALTH ENGINEERING DEPARTMENT, (MECHANICAL) WRIGHT TOWN, JABALPUR AND ANOTHER Vs. SMT. DASODABAI

JUDGEMENT

(1.) This is an appeal under Sec. 30 of Workmens Compensation Act, 1923 against the Award dated 19th Sept., 1995 in Workmens Compensation Case No. 53/93/WC/Fatal (new) and W.C.C. No. 16/89/WC/Fatal (old). The Commissioner awarded the compensation to the respondent who is wife of deceased Jagdish Prasad, for his death as driver on duty on a Bus of appellants. The accident occurred on 3rd April, 1989 and he died on 11th April, 1989. The present appellant had contested the claim urging that the deceased was on earned leave from 4th April, 1989 to 4th May, 1989. He was not permitted to drive any vehicle during this period. He actually did not drive any vehicle of the appellants that day nor Jagdish Prasad made any report of accident on 3rd April, 1989. He, in fact, died of Cirrhosis of Liver with Haemetemesis with Malaria and not due to any accident. They filed documents in support of their contention, but the Commissioner did not consider these documents and awarded a sum of Rs. 91,220.00 as compensation to be deposited within sixty days, failing which interest thereon @ 6% per annum and penalty of 25%.

(2.) Since the appeal has been filed about 11 months and 4 days after the award, the appellant moved an application under Sec. 5 of the Limitation Act read with Sec. 14 of that Act for condonation of delay in filing the appeal. In this petition, under Sec. 5 of Limitation Act, the appellants urged that they had been prosecuting a petition under Order IX, Rule 13 C.P.C. for setting aside the ex-parte order, that the Commissioner has passed the award ex-parte. Along with the Memo of appeal, the appellants have filed a certified copy of an order dated 21st June, 1996 whereby their petition dated 22nd Dec., 1995 for setting aside the ex-parte order was dismissed. A certified copy of-the award dated 19th Sept., 1995 has also been produced. The Commissioner by his order dated 21st June, 1996 dismissed the application of the present appellants dated 22nd Dec., 1995 for setting aside the ex-parte award dated 19th May, 1995. The Commissioner noticed that the main claim petition No. 53/93 (fatal) was filed on 24th Oct., 1989 and thereafter on behalf of respondents nearly on all hearings, their Counsel was present, but on 29th April, 1995, the Counsel for claimant represented that the claimant did not want to produce any evidence and so his evidence was closed. The Counsel for respondent Shri Singh disclosed that he had no instructions from his client. The respondents and his witnesses were not present so even their evidence was closed. It was in this circumstance that the evidence of the respondent was closed and thereafter on six hearings uptil 19th Sept., 1995 nobody appeared on behalf of respondent. Then, on 19th Sept., 1995, the argument of Counsel for claimants were heard and the claim was decided ex-parte. The petition for setting aside ex-parte award was filed on 22nd Dec., 1995. The Commissioner held that it was not within the prescribed limitation period. Even otherwise, the Commissioner held that the Counsel for the present appellants had themselves expressed no instructions and so his evidence was closed and thereafter on six hearings, the case was adjourned, but the respondent took no steps to participate. The appellants were thus negligent in prosecuting their case before the Commissioner deliberately.

(3.) The appellants, urged that after their petition under Order IX, Rule 13 of C.P.C. was dismissed on 21st June, 1996, they filed the present appeal on 24th Aug., 1996.