IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 Ins.APP.No. 93 of 2007(F) --------------------------------- IC.82/2004 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/RESPONDENT ------------------------------------ THE REGIONAL DIRECTOR, E.S.I.CORPORATION, PANCHADEEP BHAVAN, N.S.ROUND, THRISSUR-20. BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENT(S): APPELLANT ------------------------------------ M/S P.P.K.SONS, MOTOR SERVICE, KOTHAMANGALAM, ERNAKULAM. ADV. SRI.JOBY JACOB PULICKEKUDY FOR R SRI.ANIL GEORGE FOR R THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 93 OF 2007 = = = = = = = = = = = = = = = Dated this the 15th day of December, 2008. J U D G M E N T This appeal is preferred against the judgment of the Employees Insurance Court, Alappuzha in I.C.82/04. It was an application filed for setting aside the order of imposition of damages. The E.I. Court after considering the materials held that there are no sufficient grounds to impose damages and therefore set aside the same and interfered with Exts.P2 order and P4 notice and upheld the validity of Ext.P3 order. It is against setting aside Ext.P2 and P4, the insurance Corporation has come up in appeal. 2. Heard the counsel for both sides. The learned insurance Court held that there was no willful omission or laches or any contumacious conduct on the part of the applicant in committing delay in payment of contribution. It was held that the delay was occasioned due to financial difficulties of the applicant which has not been controverted by the respondent. Recently, a Division Bench of this Court INS.APPEAL NO. 93 OF 2007 -:2:- in the decision reported in Regional Director, ESI Corporation v. Managing Director, M/s Qetcos Ltd. (ILR 2008 (3) Kerala Series 132) has held that when it is proved that there was financial crisis and there was no willful laches or negligence then the question of levying damages has to be favourably considered and the power has to be judicially exercised. The Division Bench also referred to the dictum laid down by the Apex Court regarding the necessity of mensrea and actus reus. Here is a case where the delay has been occasioned wholly on account of the financial crisis and no materials are available to show that there has been any contumacious or deliberate or willful conduct on the part of the applicant to delay the payment. Therefore the judicial discretion has to be exercised favorably in favour of the applicant and I do not find that the E.I. Court had committed any mistake in doing so. Therefore the appeal lacks merit and it is dismissed. M.N. KRISHNAN, JUDGE. ul/-