IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 MFA.No. 1493 of 2001() ---------------------- WCC.116/1997 of W.C.C.,ERNAKULAM .................... APPELLANT/PETITIONER: -------------- P. P. JOSEPH, S/O. PAILEE, PATHIKKAL HOUSE, VENGOLA, PERUMBAVOOR VIA, ERNAKULAM. BY ADV. MR. KAPPILLIL ANILKUMAR RESPONDENT/RESPONDENT: --------------- PROPRIETOR, ST. MARY'S CREPE MILL, VENGOLA P.O., PERUMBAVOOR VIA, ERNAKULAM DIST. ADV. MR. PAULSON C.VARGHESE THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- M.F.A.No.1493 OF 2001 -------------------------------------------------- Dated this the 20th day of March, 2009 J U D G M E N T Appellant was a workman in the establishment of the respondent. He met with an accident on 3.2.1983 during the course of his employment while operating the machine. Appellant sustained injuries to his four fingers which were later amputated from Malankara Orthodox Syrian Church Medical Mission Hospital, Kolenchery. Later he resumed his employment. According to the appellant he was retrenched from service by the respondent on 20.10.1996. But according to the respondent, appellant himself decided not to continue the employment. According to the appellant there was a labour dispute before the District Labour Officer, Ernakulam and at that time it was brought to the notice of the appellant that he is not entitled to the compensation for the injuries sustained in the accident as it was allegedly paid to him. Appellant thereafter filed a petition for compensation under section 22 of Workmen's Compensation Act contending that the accident arose out of and M.F.A.1493/2001-B 2 in the course of employment and the respondent is liable to pay compensation. He also filed a petition to condone the delay of 14 years in filing the petition. Respondent appeared before the Commissioner of Workmen's Compensation and contended that the appellant was not retrenched from service and the compensation due to the appellant on the accident was settled and the settlement was registered before the Workmen's Compensation Commissioner in W.C.C.59 of 1983 and therefore the appellant is not entitled to claim any compensation. 2. As per the impugned order dated 18.7.2001 after recording the evidence of PW1, RW1 and Exts.A1 to A5 and R1 to R3, the Workmen's Compensation Commissioner dismissed the petition holding that appellant has no case that he had filed any objection to the memorandum of agreement sought to be registered under section 28 of the Workmen's Compensation Act or that the agreement was not registered and therefore the appellant is no entitled to further compensation. The application as well as application to condone the delay were dismissed. The appeal is filed challenging that order. 3. When the appeal was heard, finding that the copy of M.F.A.1493/2001-B 3 the depositions recorded by the Commissioner are not forwarded, the Commissioner was directed to forward the entire records. It was reported that the records are not available. Though the appellant and the respondent were directed to furnish the copy of the depositions learned counsel appearing for the appellant and respondent submitted that they are not in possession of copy of the deposition. 4. Learned counsel appearing for appellant and the respondent were heard. 5. The accident was on 3.2.1983. The petition for compensation under section 22 of the Act was filed only on 10.11.1997. The petition is dated 6.11.1997 and the petition to condone the delay was filed stating that the respondent had promised to get the compensation and obtained his signatures in blank papers and he was under the impression that the compensation will be paid at the time of his retrenchment and only when it was not paid, the fact was brought to the notice in the proceedings pending before District Labour Officer, appellant was aware of the fact that a petition is to be filed for compensation. M.F.A.1493/2001-B 4 6. The respondent in his statement filed before the Workmen's Compensation Commissioner specifically contended that there was a valid insurance policy and at the instance of the Insurance company there was a settlement of the claim and it was registered before the Workmen's Compensation Commissioner under section 28 of the Act. Learned counsel appearing for the respondent made available a copy of the notice issued to the appellant from the Commissioner of Workmen's Compensation, Ernakulam dated 4.10.1983 under Rule 49 directing him to appear before the Workmen's Compensation Commissioner, on 18.10.1983 and file objection if any in respect of the registration of the agreement under section 28(1) of the Workmen's Compensation Act, 1923. The letter issued by theNew India Assurance Company Ltd. on 31.8.2003 intimating him with regard to the claim on account of the injuries sustained by appellant on 3.2.1983 was also made available. That notice shows that there was a valid policy No.5227400785 and the insurance company had agreed to finalise the claim after getting the agreement registered with the Workmen's Compensation Commissioner and for that purpose respondent was directed to M.F.A.1493/2001-B 5 get the signature of the appellant/the workman and to return the vouchers in duplicate. Inspite of the contention of the respondent that there was a valid insurance policy, which is proved by the letter of the Insurance company dated 31.8.1983 admitting the liability, appellant did not implead the Insurance company in the petition or even in the appeal. 7. In such circumstances the question is whether the appellant is entitled to compensation. True, in the ordinary course when the appellant sustained injuries in the course of his employment with the respondent he is entitled to get the compensation for the injuries sustained. It is more so when the records show that his four fingers were amputated. But when there was an earlier settlement of the claim and the agreement was registered by the Workmen's Compensation Commissioner as provided under section 28 of the Act, the workman is not entitled to claim further compensation. 8. Section 28 of the Act provides for registration of agreements. Under sub section (1) where the amount of any lump sum payable as compensation has been settled by agreement, or where any compensation has been so settled has M.F.A.1493/2001-B 6 been payable to any one or a person under a legal disability, a memorandum thereof shall be sent by the employer to the commissioner who shall on being satisfied as to its genuineness record the memorandum in a register in the prescribed manner. Under sub section (2), an agreement for payment of compensation which has been registered under sub section (1) shall be enforceable under the Act notwithstanding anything contained by the Contract Act. Section 29 deals with the effect of the failure to register the agreement. Under the sub section where a memorandum of an agreement, the registration of which is required under section 28 is not sent to the commissioner as required under the said section, the employer shall be liable to pay full compensation which he is liable under the Act. Therefore once an agreement is registered under section 28(1), the workman is not entitled for further compensation. The question is whether there was a settlement and it was registered under section 28 (1) of the Act. The impugned order shows that Workmen's Compensation Commissioner did not enter a specific finding that the agreement was registered under section 28 of the Act. The relevant portion of the order reads: M.F.A.1493/2001-B 7 “ As per the learned counsel for the opposite party as per Ext.R3 notice, the Workmen's Compensation Commissioner issued notice to the opposite party informing his intention to proceed to the registration of the agreement. There is no case for the petitioner that they have filed any objections or the memorandum of agreement was not registered. Hence it is presumed that as per this notice Ext.R3 the memorandum of agreement might have been registered as WCC 59/83. So no further claim by the petitioner can be entertained as per the provisions of the law.” Therefore what is recorded in the order is only the representation of the learned counsel appearing for the respondent/employer and not the fact that a settlement was registered. Based on this the learned counsel appearing for the appellant submitted that the matter may be remanded for considering the question whether the settlement was registered under section 28 and if not the appellant is entitled to the compensation. M.F.A.1493/2001-B 8 9. Learned counsel appearing for respondent pointed out that for the failure of the appellant to implead the Insurance company the claim is to be rejected. I find force in the submission. The claim for compensation was raised before the Workmen's Compensation Commissioner in 1997 in respect of an accident which occurred in February 1983. Inspite of specific contentions before the Workmen's Compensation Commissioner that there was a valid insurance policy whereunder the compensation was to be paid by New India Assurance Company and there was a settlement of the compensation due to the appellant, appellant did not implead the Insurance company. It is seen from the letter made available by the appellant, from New India Assurance company that Insurance company had admitted the policy and the liability and on 31.8.1983 directed the employer to get the vouchers in duplicate executed by the workman returned to the Insurance company and to register the same. The copy of the notice issued to the appellant under Rule 49 dated 4.10.1983 establish that appellant was directed to appear before the Workmen's Compensation Commissioner on 18.10.1983 to raise objection if any for registration of the M.F.A.1493/2001-B 9 agreement. Appellant has no case that he had either appeared before the Workmen's Compensation Commissioner or filed any objection for registering the agreement. Under section 28(1) of the Act when an agreement is sought to be registered and the workman did not raise any objection, the agreement should have been registered under section 28(1). Therefore even though there is no specific finding that the agreement was registered under section 28, on the facts I do not find that the matter warrants remand to the Workmen's Compensation Commissioner. When the claim itself was filed after a delay of 14 years and in spite of pointing out the fact that there was a settlement and there is a valid insurance policy, the Insurance company was not impleaded. In such circumstances there is no necessity for a remand at this stage as there was settlement and the settlement was registered under section 28. Appellant is not entitled to claim further compensation. Appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb