IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 27225 of 2006(N) -------------------------- PETITIONER(S): --------------- M.GANGADHARAN, S/O.KUNHIRAMAN, RESHMI, SOUTH BAZAR, PUZHATHI VILLAGE, KANNUR. BY ADV. SRI.O.D.SIVADAS RESPONDENT(S): --------------- 1. THE COMMISSIONER FOR WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMISSIONER, KANNUR. 2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), KANNUR. 3. THE VILLAGE OFFICER, PUZHATHI, KANNUR DISTRICT. 4. V.SEETHA, W/O.LATE RAGHAVAN, RESHMA NIVAS, MAKRRI, P.O.BAVODE, KANNUR. R1 TO R3 BY G.P. SRI. MATHEW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE JUDGMENT DATED 30.12.2004 IN WCC NO.22/2002 PASSED BY THE FIRST RESPONDENT. EXT.P2 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER IN WCC NO.22/2002 EXT.P3 TRUE COPY OF THE ORDER DATED 15.3.2005 IN WCC NO.22/2002 PASSED BY THE FIRST RESPONDENT. EXT.P4 TRUE COPY OF THE DEMAND NOTICE DATED 13.12.2005 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W. P. C NO. 27225 OF 2006 -------------------------------------------- Dated this the 20th day of August, 2009 JUDGMENT Petitioner is challenging Exts. P3 and P4 orders, one issued b y the Commissioner for Workmen's Compensation imposing penalty of Rs. 21,175/- on the petitioner under Section 4A(3)(b) of the Workmen's Compensation Act, 1923 for non-appearance in a claim petition filed by the wife of the deceased employee of the petitioner and the other is revenue recovery notice. Petitioner's case is that petitioner did not appear because the life of the employee was covered by valid insurance policy and in fact pursuant to the award by the Commissioner, the insurance company settled the liability. Government Pleader defended the order by stating that petitioner's non-appearance led to delay, leading to loss to the claimant. I am unable to accept this contention because Workmen's Compensation Commissioner has not examined the claim with reference to the coverage under the insurance policy, and if so, without petitioner's appearance the matter could be settled without any delay. When the claim is squarely covered by insurance 2 policy petitioner cannot be blamed for non-appearance before the Commissioner because he wanted only to avoid loss to him on account of litigation cost. In any case even if the petitioner did not appear the workmen's compensation commissioner should have set him exparte and proceeded to decide the matter. Therefore at the maximum non appearance will lead to only an exparte award against the petitioner. In this case the claimant obviously has not suffered any loss and the delay if any is on account of lack of understanding of the nature of the claim by the WCC Commissioner. In the circumstances, I allow the O.P. by quashing Exts. P3 order and Ext.P4 recovery notice. However, the payment made by the petitioner pursuant to interim order dated 17.10.2006 can be retained by the claimant. (C.N. RAMACHANDRAN NAIR) Judge kk 3