IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 MFA.No. 41 of 2005() -------------------- AGAINST THE ORDER IN WC CASE NO.56/2000 (OLD WC 172/90) DATED 30.1.2002 AND ORDER IN REVIEW PETITION DATED 24.7.2004 PASSED BY THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER) KOZHIKODE. .................... APPELLANT: 2ND OPPOSITE PARTY ------------- UNITED INDIA INSURANCE CO.LTD., MALAPPURAM REPRESENTED BY THE MANAGER, UNITED INDIA INSURANCE CO.LTD., T.P.CLAIM CELL, VETTUKATTIL BUILDINGS, JOSE JUCTION, M.G.ROAD, KOCHI-16. BY ADV. SRI.A.R.GEORGE RESPONDENTS: APPLICANT/1ST OPPOSITE PARTY ----------------- 1. T.P.MARAKKAR S/O. KUTTI MOHAMMED HAJI, THADIYAN PURATH HOUSE, P.O.KARAKKUNNU, MALAPPURAM DISTRICT. 2. M.ALAVIKUTTY, MALANGADAN HOUSE, P.O.KARAKUNNU, MALAPPURAM DISTRICT. R1 & R2 BY ADV. SRI.K.V.GOPINATHAN NAIR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.PADMANABHAN NAIR, J. ------------------------------- M.F.A.No. 41 of 2005 ------------------------------- Dated this the 20th February, 2008. J U D G M E N T This is the second round of litigation. The first respondent was an employee of the second respondent. He sustained an employment injury on 31.8.1985. He filed a petition claiming compensation and produced a medical certificate to the effect that he was having 60% permanent disability. Accepting that certificate, the Tribunal awarded an amount of Rs.60,948/=as compensation with interest thereon. The appellant, who was the Insurer, challenged that order before this Court. As a condition precedent for entertaining the appeal, appellant deposited the entire amount with interest. When the appeal came up for hearing, the first respondent, petitioner in W.C.C. was allowed to withdraw 50% of the amount, which was quantified as Rs.30,249/=. 2. This Court allowed the appeal and remanded the case for reconsideration, and the respondent was directed to appear before a Medical Board. After remand, the first respondent was referred to a medical board and the medical board assessed his disability to 9%. It M.F.A.No.41 of 2005 2 was found that he is entitled only to Rs.9074.70 as compensation. The Deputy Labour Commissioner found that the Insurer is entitled to recover Rs.30,249/= which was not disbursed to the claimant. But it did not pass any order either disallowing or allowing the Insurer to recover the excess amount already received by the employee, stating that there was no direction by the High Court to recover the excess amount already paid to the employee. Insurer filed a petition for review. That review petition was dismissed by the Deputy Labour Commissioner stating that there was no direction by the High Court to recover the excess amount already paid to the employee. Challenging those orders, this M.F.A. is filed. 3. There is no controversy regarding the facts. First respondent was found eligible only for an amount of Rs.9074.70 as compensation. During the pendency of the proceedings, he received an amount of Rs.30,249/= from the appellant, Insurer. So, there cannot be any doubt or dispute as to the fact that the appellant is entitled to get back the excess amount of Rs.21,174/= paid to the claimant. The Deputy Labour Commissioner ought to have passed an order allowing the appellant to recover the excess amount already M.F.A.No.41 of 2005 3 received by the claimant/petitioner by executing the order. The reasons stated by the Deputy Labour Commissioner to refuse that relief is illegal and unsustainable. This Court accepted the contention of the Insurer that the first respondent was not entitled to get the compensation fixed by the Deputy Labour Commissioner. So, the finding of the Workmen's Compensation that since the High Court has not issued any specific direction authorising the Insurer to recover the excess amount, he is entitled to get the same is illegal and unsustainable. But the amount was released to the first respondent on 6.4.1994. He sustained an employment injury in the year 1984. This case was pending from 1990 onwards. Initially, it was allowed and the respondent was allowed to recover an amount of Rs.Rs.60,948/= as compensation. In the appeal, the same was set aside and remanded. 4. Considering the fact that the first respondent is only a driver, who was employed by the second respondent, I am of the view that it is only just and proper that the Insurer though it is entitled to recover the amount from the first respondent, claimant, does not put him to further difficulties by recovering the same, which was already paid more than 14 years back. So, though I find under Law M.F.A.No.41 of 2005 4 that Insurer is entitled to get the amount recovered, considering the peculiar facts of this case, I direct the appellant Insurer not to recover the award in this particular case. The appeal is disposed of in the above terms. K.PADMANABHAN NAIR, JUDGE nj.