Ramyas Tripathi and Another vs Murarilal Bansal and Another

K.K. Trivedi, J.—This is a miscellaneous appeal u/s 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 CPC 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.

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.

Per contra, it is contended by the learned counsel for the respondents that appellants were required to show that there was sufficient cause for their non-appearance or for not producing evidence before the Commissioner, Workmen''s Compensation on the date when the matter was posted for hearing before the said authority. Nothing was indicated in the application filed by the appellants. On the other hand, the fact remains that they were paid the amount of compensation under the no fault provisions contained in the Motor Vehicles Act when they made an application for compensation on account of the very same accident. However, such an application was also dismissed and the application for grant of compensation was filed under the provisions of Workmen''s Compensation Act. This itself shows that the appellants were not vigilant in making their claim and the application of the appellants for restoration of such a claim case has been rejected assigning good reasons. Thus, no interference in this appeal u/s 30 of the Workmen''s Compensation Act is necessary. It is contended that appeal is liable to be dismissed.

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 CPC 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.

The constant view taken by the Apex Court is that such cases should not be dismissed on technicalities of law, like non-appearance or the non-production of the evidence. No order is produced on record of this miscellaneous appeal to show that the claim application of the appellants was considered on merits. On the other hand, the record of the court of the Commissioner, Workmen''s Compensation indicates that the claim case of the appellants was dismissed only on default and not on merits. That being so, it was necessary on the part of the Commissioner, Workmen''s Compensation to restore the claim case of the appellants on its original number and to decide the same on merits in stead of rejecting their application. However, this aspect is to be kept in mind that the death of employee of the respondent No. 1 had taken place on 15.1.1990 as is mentioned in the memo of appeal. For such a fatal accident the claim was made by the appellants for grant of compensation. It will be difficult to adduce the evidence of such an accident after such a long period. Because of this reason, the claim case of the appellants is not to be kept pending for a long time. In view of this, while directing the restoration of the claim application of the appellants, by allowing this appeal, it would be necessary to direct the Commissioner, Workmen''s Compensation to afford opportunities to the parties to produce the evidence expeditiously and unnecessary adjournment be not granted for production of evidence to the parties to the claim case.

Accordingly, this appeal is allowed. The order dated 20.10.2011 is hereby set aside. The original Claim Case No. 53/1997 Workmen''s Compensation Act (Fatal) filed by the appellants be restored to its original number by the Commissioner, Workmen''s Compensation, Satna and by granting three opportunities only for adducing evidence, the same be decided on merits. Since the parties to the said case are represented before this Court, it is directed that they shall appear before the Commissioner, Workmen''s Compensation, Satna on 24th March, 2014 and the said authority will fix the next date for adducing the evidence. If the pleadings in the said case are not complete, the Commissioner, Workmen''s Compensation will allow the parties to produce the pleadings only once and will fix the date for recording of the evidence. The said proceedings be completed by 30th September, 2014. The appeal is allowed to the extent indicated hereinabove. However, looking to the facts and circumstances of the present case, there shall be no order as to costs.