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Judgment
B Manohar
The Appellant bring aggrieved by the order dated 22.01.2010 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Davanagere in LOD:WCA:Mis:CR:No. 04/2008 dismissing the application filed under order 9 Rule9 for setting aside the order dated 16.06.2008 dismissing the Claim Petition filed by the claimant The case of the claimant is that he was working as a Hamali in a goods auto bearing registration No. KA-17-A-3227 belonging the 1st Respondent. While he was working as a Hawali, the said goods auto met with an accident. The claimant filed a claim petition seeking compensation before the Commissioner for Workmen''s Compensation. The said claim petition was posted for evidence of the claimant on 16.06.2008. On that data, due to the death of his close relative, he could not appear before the Commissioner for Workmen''s Compensation on 16.06.2008 to give evidence. In view of that, the Commissioner for Workmen''s Compensation dismissed the claim petition on the ground that the claimant remained absent for evidence. B(sic)ing aggrieved by the Order dated 1606.2008. the claimant filed the application under Order 9 Rule 9 seeking for restoration of claim petition and permit him to lead evidence and dispose of the case on merit. The Commissioner for Workmen''s Compensation after considering the objection filed by the insurer, rejected the said petition by his Order dated 22.01.2010 on the ground that there is no bonafide in the application for recalling the order dated 16.06.2008.
Being aggrieved by the same, the claimant has preferred this appeal setting aside the order dated 22,01.2010 and to restore the claim petition.
Shri. D. Manjunath, the advocate appealing for the insurer argued in support of the order passed by the Commissioner for Workmen''s Compensation and contended that though sufficient opportunity was given to the claimant, he has consistently remained absent. Taking into the consideration all these factors, the Commissioner for Workmen''s Compensation has dismissed the claim petition as well as petition filed under Order 9 Rule 9 of CPC and there was no bonafide claim made by the Appellant and sought for dismissal of the same.
After hearing the advocates for the parties, the only point for consideration in this appeal is;
Whether the appellant has made out a case for restoring the claim petition filed by the appellant.
The fact is not in dispute that the claimant has sustained injury while he was in service. He filed a claim petition seeking for compensation, On 16.06.2008 the claim petition was posted for evidence of the claimant. However, on that day he could not appear before the Court. In view of that, the satire claim petition is dismissed. Admittedly, the claim petition has been filed in the year 2006. There is no deliberate intention to delay the proceeding on the part of the claimant to remain absent. The claimant is an illiterate person and he is not aware of the Court proceedings. The Commissioner for Workmen''s Compensation ought to have been given one more opportunity permitting him to examine himself and permit the insurer to cross examine him. For his livelihood, he was working both in Karnataka and neighboring state. Taking into consideration, the entire totality of the matter and in order to give one more opportunity to the claimant, the appeal requires to be allowed. Accordingly I pass the following:
ORDER
(i) The claim petition is allowed.
(ii) The Order dated 22.01.2010 and Order dated 16.06.2008 dismissing the miscellaneous petition and the claim petition is set aside. The claim petition filed by the claimant is restored.
(iii) The Commissioner for Workmen''s Compensation is directed to give one more opportunity to the claimant to lead evidence and dispose of the matter in accordance with law.
(iv) However, the claimant is not entitled for interest for the period, which the claim petition is denied.