1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 4101 OF 2009 1. Sopan S/o Sambhaji Dhabe, Age: 50 years, Occu. Labaourer, 2. Pakharabai W/o Sopan Dhabe, Age: 45 years, Occu.: Household, Both R/o Pusegaon, Tq. Sengaon, Dist. Hingoli. ... PETITIONERS VERSUS 1. Dattaji S/o Jaisingrao Patil, Age Major, Occu. Business, The General Manager, D.J.P. Earthmovers, "Shiv-Datta, N. H. 4, Shiroli, Kolhapur-416122. 2. The Oriential Insurance Company Ltd., Through its Divisional Manager, 204, E Ward, Opp. Panchshil Hotel, Station Road, Kolhapur. ... RESPONDENTS *** Mr. Sachin Deshmukh, Advocate for the Petitioners. Mr. V. D. Salunke, Advocate for Respondent No. 1. Mr. U. S. Malte, Advocate for Respondent No.2. *** CORAM: S. B. DESHMUKH J. DATED:- 9th MARCH, 2010. ORAL ORDER: 1. Heard learned counsel for the parties. 2. Rule, made returnable forthwith, heard finally by consent of the parties. 2 3. The petitioners are challenging the judgment and order passed by the learned Civil Judge, Senior Division and Commissioner for Workmens Compensation, Hingoli [the learned Commissioner, for short] passed on 7th March, 2009 in Misc. Application NO.63 of 2008. 4. By this order, ex-parte Award dated 2nd December, 2006, passed in Fatal Accident No.09 of 2005 is set aside against all the Respondents. Parties are directed to appear in Fatal Accident No.9 of 2005 on 6th April, 2009 with condition that the applicant shall file written statement on that date itself. 5. Learned counsel for the petitioner presented certified copy of F.A. No.9 of 2005. It is marked by letter "X" for identification. It was made available to learned counsel Mr. Salunke for Respondent No.1 and Advocate Mr. Malte for Respondent No.2, for inspection. It is only copy, made available, it is accepted and taken on record. 6. It is not in dispute among the parties that F.A. NO.9 of 2005 was filed by the present Petitioners in the Court of Ex-office Commissioner for Workmens Compensation and 3 Civil Judge, Senior Division, Hingoli [the learned Commissioner, for short]. It was registered as F.A. No.9 of 2005. Said application was filed under section 4 (1) (a) of the Workmens Compensation Act, 1923 (the said Act, for short). This application was heard and partly allowed by the learned Commissioner by the judgment and Award dated 2nd December, 2009. Respondent Nos.1 and 2, in that case, were held jointly and severally liable to make payment of compensation of Rs. 3,63,820/- within three months. 12% interest was awarded from the date of filing of the petition dated 8th July, 2005 till the realisation of the amount. The respondent Nos.1 and 2, in that case, were saddled with the costs of the petition, payable to the petitioners in that case. The petition/ case was dismissed against Respondent No.3 in that case, who was Insurance Company. The present Respondent No.1 was Respondent No.2 in F.A. No.9 of 2005. Present Respondent NO.2 filed Misc. Civil Application NO.63 of 2008 in the Court of learned Commissioner. In that M.A.C. No.63 of 2008, present petitioners were non- 4 applicant Nos.1 and 2 and Insurance Company was non-applicant No.3. This M.A.C. No.63 of 2008 was for condonation of delay and quashing and setting aside the ex-parte order dated 17th February, 2006 and quashing and setting aside the Award dated 2nd December, 2008 in F.A. No.9 of 2005. It appears from copy of M.A.C. No.63 of 2008, which is on record Annexure-C, that it was filed on 9th June, 2008. 7. M.C.A. NO.63 of 2008, after hearing the parties, came to be partly allowed, as mentioned in the foregoing paragraphs of this order. This order, passed by the learned Commissioner, in M.C.A. NO.63 of 2008 is impugned in this writ petition. 8. Counsel for the Petitioner points out Annexure-B, page 9 to the compilation of this writ petition. It is reminder letter by the learned Commissioner to the learned Civil Judge, Senior Division, Sindhudurg - Oras. From the contents of this letter it appears that F.A. No.9 of 2005 was pending before the learned Commissioner. One Mr. Vinod, son of the present petitioner, met with an accidental 5 death on 14th January, 2005 in Government hospital at Sawantwadi. It was further communicated to the learned Civil Judge, Senior Division that Deccan Mineral Company, Kolhapur had deposited amount of compensation in the Court of learned Civil Judge, Senior Division, Sindhudurg - Oras. Learned Civil Judge, Senior Division has directed, in its communication Exhibit-B, that this information was received from the affidavit of deceased Vinod i.e. present petitioners filed in the Court of learned Civil Judge, Senior Division, Hingoli. Amount of compensation deposited by the Company with learned Civil Judge, Senior Division, was called for by the learned Civil Judge, Senior Division, Hingoli by this communication Exhibit-B dated 15th December, 2005. Counsel for the Petitioner fairly submits that he is not aware on which date the amount of compensation was deposited by the Respondent No.1 or Deccan Mineral Company in the court i.e. Civil Judge, Senior Division, Sindhudurg - Oras. He however is emphatic on the point that the said amount must have been deposited before 15th of December, 2005. 6 According to him, present Respondent No.1 was aware of F.A. No.9 of 2005 filed by the present petitioners for compensation in the court of learned Civil Judge, Senior Division and Commissioner for Workmens Compensation. Despite this fact, Respondent No.1 did not appear and contest F.A. No.9 of 2005. His another limb of the argument is that after filing F.A. No.9 of 2005 summons was issued to Respondent No.1, was not served, present petitioners moved the learned Civil Judge, Senior Division and Commissioner for Workmens Compensation for substitute service under Order 5 Rule 20. It was permitted by the learned Commissioner. Respondent No.1, therefore, stands served through newspaper publication viz. Daily Sakal having wide circulation in the area. According to him, therefore, there was service to the present Respondent No.1 and Respondent NO.1 ought to have entered into appearance and put-forth his grievance. According to him, delay is inordinate around two years. Learned Commissioner condoned the delay without just and sufficient grounds, so also quashed and 7 set aside the exparte order without sufficient reason. He, therefore, seeks quashment of the order impugned, in this writ petition. 9. Mr. Salunke points out from copy of F.A. NO.9 of 2005 address of the present Respondent No.1 furnished by the present petitioners. It is only mentioned in the address that Respondent No.1 is a resident of Kolhapur city. Details have not been furnished. He points out observation of the learned trial Court, in para 7. According to him, learned trial Court has justifiably held that the Respondent No.1 was not duly served with F.A. No.9 of 2005. His contention is that, he came to know only after service of special Darkhast No.8 of 2008 that exparte award is passed against him. Thereafter, he moved the learned trial Court by filing application under Order 9 Rule 13 and it has been justifiably allowed. He points out contention raised in reply affidavit filed by Respondent No.1 in this petition which starts from page 25. 10. I have given due consideration to the submissions advanced on behalf of the parties. Substituted service was permitted by the 8 learned Commissioner. Newspaper publication in daily Sakal is also not in dispute. Copy, which is made available by Mr. Deshmukh, in F.A. No.9 of 2005. It shows that the address of the Respondent No.1 is given as resident of Kolhapur. Details were not furnished. The trial Court condoned the delay and set aside the exparte decree recorded a finding in favour of the Respondent No.1. Exparte Award is quashed and set aside with further direction to the Respondent NO.1 to file written statement. What I find is that while appreciating the sufficiency of cause and/ or explanation for delay, the trial Court has exercised positive discretion and condoned the delay. So far as service is concerned, trial Court has recorded a finding that detail address was not given and that is why the trial Court has arrived at a conclusion for quashing and setting aside the exparte Award in favour of the present petitioners. In my view, no interference is necessary, however, taking into account the fact situation that death of the son of the petitioners - Vinod is dated 14th of January, 2005, and still 9 proceeding is pending in the trial Court, the trial Court did not award any costs to the petitioners. In other words, inconvenience caused to the present petitioners is not being taken care of. Mr. Salunke, learned counsel, on instructions, submitted that amount of Rs.1 Lac was deposited by the company in the Court of learned Civil Judge, Senior Division, Sindhudurg - Oras. He, however, is not in a position to give details as to on which date this amount was deposited. He also does not possess receipt of the said amount. In my view, for said details now, it is not necessary to keep pending this proceeding. Inconvenience caused to the petitioners can be taken care of by saddling appropriate costs while dismissing the writ petition and maintaining the order passed by the trial Court. Counsel for the petitioner seeks Rs. 25,000/- towards costs. Counsel for the Respondent No.1 submits that Respondent No.1 has already parted with Rs.1 Lac, to which I have made reference in the foregoing paragraphs of this order. This amount, indisputably, is not received by the present 10 petitioners. Counsel for the Respondent No.1 opines that Rs.5,000/- would be appropriate Costs. In my view, Rs.10,000/- would be appropriate costs taking into account the date of accident, death of son of the petitioners and delay occurred in moving the trial Court by filing application under Order 9 Rule 13 of the C.P.C. 11. No case for invoking extraordinary jurisdiction. Petition stands dismissed, however, with costs of Rs.10,000/- [Rupees ten thousand only] to be paid by Respondent No.1 to the Petitioners on or before 7th April, 2010, to be deposited in the Court of learned Civil Judge, Senior Division and Commissioner for Workmens Compensation, Hingoli. On receipt of this amount, petitioners are permitted to make appropriate application for withdrawal of the amount from the trial Court. Trial Court shall pass appropriate order on that application. Needless to say, Respondent No.1 shall file written statement, as ordered by the trial Court, after depositing the costs in the trial Court and the trial Court, thereafter, shall decide the said F.A. No.9 of 11 2005 in accordance with the provisions of law, within a period of three months from 7th April, 2010. Rule discharged. [S.B.DESHMUKH, J.] Dated:09/03/2010. ans/4101 12 WRIT PETITION NO.: OF 200 Date of decision: 9th MARCH, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE