IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 Ins.APP.No. 60 of 2011() ------------------------ IC.46/2008 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/RESPONDENT ------------------------------ THE REGIONAL DIRECTOR, ESI CORPORATION, SWARAJ ROUND NORTH, THRISSUR. BY ADV. SMT.T.D.RAJALAKSHMY, SC, ESI CORPN. RESPONDENT/ APPLICANT ------------------------ EASTERN RETREADS (P) LTD., VAZHAKULAM, MUVATTUPUZHA-686 670, MUVATTUPUZHA P.O. ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA THIS INSURANCE APPEALS HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA ,J. ------------------------- Ins. A No. 60 of 2011 -------------------------- Dated this the 5th August, 2011 J U D G M E N T This appeal is filed challenging the order of the Employees Insurance Court, by which it is declared that the orders Exts.P4 to P6 by which respondent Corporation imposed damages by way of penalty are not sustainable. 2. As per Exts.P4 to P6, appellant-Corporation imposed damages by way of penalty on respondent for different periods. Notices were also issued proposing to impose damages. The respondent contended before the Corporation that delay in payment of contribution was on account of financial difficulties, adverse business conditions etc., and there was no willful delay or mens rea to cause delay. Rejecting the contentions, appellant-corporation passed impugned orders imposing damages. Hence, a petition was filed by respondent establishment for declaration that Exts.P4 to P6 are unsustainable. 3. The Insurance Court on consideration of the materials placed before it passed the following observations Ins. A No. 60 of 2011 2 and findings in paragraph 9 of the impugned order. “ It is the uncontroverted and untraversed plea of the applicant that delay in payment of contribution is on account of the financial difficulty faced by the applicant due to adverse business conditions, which aspect is not controverted by the respondent. Therefore, I believe that above plea of the applicant is bona fide and correct. Therefore, it is manifest that the applicant had no mens- rea or ill will to commit delay. Therefore, the delay involved in this case is eligible to be excused and damages imposed is liable to vacated. I do so. 4. On the above finding, a declaration was granted in favour of the respondent. According to appellant, the Employees' Insurance Court committed an error in declaring Exts.P4 to P6 are unsustainable, in the absence of proof of financial difficulty, either oral or documentary. 5. It is clear from the observations and findings in paragraph 9 of the impugned order that the above fact was not controverted by appellant-corporation. Therefore, the absence of adducing any evidence by respondent is of no consequence in this case. The fact which is not disputed is impliedly admitted need not be proved by adducing evidence. Hence the Insurance Court has not committed Ins. A No. 60 of 2011 3 any illegality or impropriety in issuing the declaration, on the basis of the findings which are not unreasonable. At any rate, I am not inclined to allow the appeal on the argument that there is no evidence. This appeal is dismissed. (Sd/- K.HEMA, JUDGE) ma /True copy/ P.A to Judge Ins. A No. 60 of 2011 4 Ins. A No. 60 of 2011 5