Ash - 1 - fa-1807.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 1807 of 2009 Shri Gulabsheth Tiwari. .. Appellant. Vs Smt. Surekha Arjun Shingade & Ors. .. Respondents -- Shri Ashok Chauhan i/b Shri A.H. Patil for the Appellant. Shri S.M. Kamble for Respondent Nos.1 to 4. -- CORAM : A.S. OKA, J DATED : 22ND DECEMBER, 2010 P.C. . The parties were put to notice that the Appeal will be taken up for final disposal at the admission stage. 2. The challenge in this Appeal is to the judgment and order dated 17th June, 2002 passed by the Learned Commissioner for the Workmen’s Compensation by which the compensation of Rs.1,75,540/- with interest accrued thereon has been directed to be paid to the 1st to 4th Respondents. Ash - 2 - fa-1807.09 3. The 1st to 4th Respondents filed a Claim Application under the provisions of the Workmen’s Compensation Act, 1923 ( hereinafter referred to as “the said Act” ) claiming compensation on account of death of one Arjun Krishna Shingade who was stated to be the employee of the Appellant. After service of the notice, the Appellant appeared through an Advocate before the learned Commissioner. Thereafter, the Claim Application is not contested by the Appellant. It appears that the application for setting aside the impugned judgment and order was made by the Appellant on the ground that he was not served with the notice of the claim application and that he had not engaged any Advocate. The said application was dismissed by the Learned Commissioner by holding that the only remedy of the Appellant was to prefer an appeal. 4. The learned counsel appearing for the Appellant has taken the Court through the record of the case and the impugned judgment and order. His submission is that the deceased was never an employee of the Appellant. Apart from the various submissions on merits, he pointed out that though an Advocate was appointed by the Appellant, the matter was not contested by him and the Appellant should not be made to suffer on account of default of the Advocate. The learned counsel appearing for the Appellant submitted that even after engaging an Advocate, the claim application was not defended. Ash - 3 - fa-1807.09 5. Learned counsel appearing for the 1st to 4th Respondents opposed the appeal. He submitted that though an opportunity was available, the Appellant did not contest the claim Application. He pointed out that the application for setting aside the impugned order has been rejected by the learned Commissioner. He pointed out that in the said application, a contention was raised by the applicant that he had not even appointed any Advocate. He submitted that there is no reason given as to why the Appellant did not contest the claim application. He submitted that if the impugned judgment and order is set aside, the Appellant will withdraw the compensation amount deposited with the learned Commissioner and in the event the Respondents succeed in the claim application after remand, it will be very difficult for them to recover the amount. 6. I have given careful consideration to the submissions. The learned Commissioner in the impugned judgment and order has noted that the Appellant engaged an Advocate and the Vakalatnama of the Advocate had been filed. It is pointed out that the Advocate applied for an adjournment and thereafter did not appear before the learned Commissioner. Ash - 4 - fa-1807.09 7. In the application for setting aside the said order, the Appellant contended that the deceased was not his employee and in fact, he was an employee of a Company having a place of business in the neighbourhood of the premises of the Appellant and that the Appellant has been involed only because he volunteered to give medical help to the deceased. 8. It is true that in the application filed by the Appellant for setting aside the impugned order, he has stated that he had not engaged any Advocate in the application. However, from the impugned judgment and order, it appears that an Advocate was appointed by the Appellant. The said Advocate did not appear after filing the Vakalatnama. It is not in dispute that the Appellant has deposited the entire decretal amount. There is an affidavit filed by the Appellant dated 9th December, 2010 in which it is stated that even if an order of remand is passed, the Appellant will not apply for withdrawal of the compensation amount and it will remain deposited till disposal of the claim application. 9. Considering all the above aspects, an opportunity deserves to be granted to the Appellant to contest the claim application made by the 1st to 4th Respondents. Ash - 5 - fa-1807.09 10. Hence, I pass the following order : - (i) The impugned judgment and order dated 17th June, 2003 is quashed and set aside and the W.C. Application No.59 of 1997 is restored to the file of the learned Commissioner for workmen’s compensation. (ii) Parties are directed to appear before the learned Commissioner on 10th January, 2011 for fixing the schedule of the hearing. It is made clear that no further notice of the claim application shall be served to the parties and that the parties are under an obligation to appear before the learned Commissioner. (iii) The statements made in the affidavit of the Appellant dated 9th December, 2010 are accepted. Undertakings contained therein are also accepted. (iv) In view of the undertakings, the learned Commissioner will not permit the Appellant to withdraw the compensation amount till disposal of the claim application. If the decision in the claim Ash - 6 - fa-1807.09 application is adverse to the 1st to 4th Respondents, withdrawal will not be allowed till the appeal period is over. (v) It will be open for the Appellant to file reply/written statement on or before 31st January, 2011. (vi) It will be open for the 1st to 4th Respondents to adduce further evidence in addition to the evidence which is already adduced. (vii) The claim application shall be decided afresh expeditiously as possible and in any event before the end of April, 2011. (viii) The Appeal is partly allowed on above terms. JUDGE