IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 MFA.No. 89 of 2009() -------------------- WCC.235/1998 of COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), ,KOZHIKODE .................... APPELLANT(S): IST OPPOSITE PARTY -------------------------------- MATHAI.K.P., P.W.D.CONTRACTOR, ONDAYANGADI, P.O.VEMAM, WAYANAD DISTRICT. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR RESPONDENT(S): APPLICANTS & OPP.PARTIES 2 & 3 --------------------------------------------- 1. SANTHA, W/O.HARIDASAN, (W/O.DECEASED HARIDASAN). 2. SARIKA, D/O.HARIDASAN, 3. SHONIMA, D/O.HARIDASAN, 4. SNEHA, D/O.HARIDASAN, CHERIKKA PARAMBIL HOUSE, P.O.KOKKALLUR, BALUSSERY, CALICUT. 5. CHATHUKUTTY, S/O.UNNICHATHAN, THATTARAKUZHIYIL HOUSE, P.O.CHEEKKIKODE, ATHOLI, KOZHIKODE DISTRICT. 6. JANU, W/O.CHATHUKUTTY, THATTARAKUZHIYIL HOUSE, P.O.CHEEKKIKODE, ATHOLI. 7. SUPERINTENDING ENGINEER, P.W.D. BUILDING AND LOCAL WORKS NORTH CIRCLE, CALICUT. 8. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOZHIKODE. GOVERNMENT PLEADER FOR R7 & R8 SRI.P.SANILKUMAR. SRI.K.MOHANAKANNAN FOR R1-6 SMT.A.R.PRAVITHA FOR R1-6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A.(W.C.C.Act) No.89 of 2009 ----------------------------------------------- Dated 12th August, 2011. J U D G M E N T Joseph, J. Appellant is the first opposite party in a claim filed under the Workmen's Compensation Act by the respondents/applicants. The case of the claimants was that their predecessor in interest was the workman of the appellant, who was a building contractor, and that while he was working, he fell from a building and he suffered injuries to which he later succumbed. The Commissioner allowed the application and ordered compensation at the rate of Rs.1,97,060/- with simple interest at the rate of 12% from the date of accident till the date of payment. 2. We heard the learned counsel for the appellant and learned counsel for the respondents/claimants. 3. Learned counsel for the appellant would contend that this is a case where the order sheet would show that the appellant was denied an opportunity to adduce evidence. The case of the appellant is that actually, the workman, who was M.F.A.89/09 2 otherwise engaged by him did not do any work on the said day, which happened to be a Sunday/holiday and being a Government work, the workman was not working on the fateful day and actually, the workman had fallen from a tree and died. In this regard, he placed reliance on Ext.R1(a) which is a record of the hospital, in which it is stated, according to the appellant, that the workman died due to fall from a tree. More importantly, he would contend that the order sheet would show that the petition was dismissed for default of the applicants. Later on, it is pointed out that the Commissioner suo motu restored the proceedings, but, without giving an opportunity to adduce evidence, the matter came to be disposed of as aforesaid. 4. Per contra, learned counsel for the claimants submits that this is a hard case, where the workman died. He also draw support from the evidence of the claimants including documentary evidence. He would further point out that actually the Commissioner had considered the hospital record relied on by the appellant also and found the version of the claimants more probable, and the evidence of the applicants was found M.F.A.89/09 3 acceptable, in short. 5. We notice from the proceedings that the matter was posted for evidence of the appellant on 16.8.2001. Thereafter, apparently, the Government of Kerala was sought to be impleaded. Again, the matter was posted for evidence on 10.1.2003 and thereafter, to 21.2.2003 for evidence of the opposite party and the opposite party requested to have a hearing on maintainability, which was not allowed. When the matter came up on 21.2.2003, it was posted to 5.1.2004 for hearing of the parties. Thereafter, the case was being posted for hearing and it would appear that the matter was being adjourned for hearing on preliminary issue and finally, we notice that the case was dismissed for default on 23.1.2008. On 24.1.2008, it is seen that the order is suo motu reviewed by the Commissioner and posted for evidence to a date convenient to his successor. On 13.8.2008, the matter stood posted to 30.9.2008. On 30.9.2008, it is stated that the parties were present, they were heard and the matter is taken for orders. 6. Since there is a case that the petitioner was not given an opportunity to adduce evidence, in the circumstances M.F.A.89/09 4 as noted above, we would think that an opportunity can be given to the appellant to adduce evidence in the matter. But, at the same time, we feel that having regard to the materials already on record, the order cannot be set aside unconditionally. Therefore, we allow the appeal and set aside the order for the reason that the appellant was not given opportunity to adduce evidence, and the matter is remanded back. In view of the fact that the matter is pending for some time, the parties will appear before the Commissioner on 1.9.2011 and the Commissioner will proceed to dispose of the matter on or before 31.12.2011. We further make it clear that it will be open to the claimants to withdraw a sum of Rs.75,000/- from out of the amount which has been deposited by the appellant. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.