IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 20859 of 2009(B) -------------------------- PETITIONER(S): PETIONER: ------------------------ JOHN.K., VAZHAVILA SHERIN NIVAS, POOYAPPALLY P.O., KOTTARA, KOLLAM DISTRICT. BY ADV. SRI.C.A.JOY RESPONDENT(S): --------------- 1. THE COMMISSIONER FOR WORKMEN'S COMPENSATION, KOLLAM. 2. KUNJUMON, S/O.YOHANNAN, PUTHEN VEEDU, POOYAPPALLY, KOTTARAKKARA TALUK. ADV. SRI.B.MOHANLAL FOR R2 SR. GOVERNMENT PLEADER SRI.K.C.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J ............................................... W.P(C) No. 20859 of 2009 ................................................. Dated this the 9th day of September, 2009 J U D G M E N T The petitioner is the opposite party employer in W.C.C. No. 13/03 before the Commissioner for Workmen's Compensation, Kollam. The 2nd respondent herein was the applicant therein. The 2nd respondent filed the W.C.C. seeking compensation for injuries sustained by him allegedly in the course on his employment with the petitioner. The petitioner entered appearance in the W.C.C. and filed his written statement. However, when the matter was posted for evidence, he was absent. Therefore the commissioner recorded the evidence of the 2nd respondent and passed Ext.P3 award, directing the petitioner to pay compensation of Rs.40,666/- with interest at 12% from 4.2.2002. That was passed on 31.12.2008. On 30.3.2009, the petitioner filed Ext.P4 application for setting aside the ex-parte award and for adjudication of the compensation claim on merits giving the petitioner an opportunity to adduce evidence. In the same, the petitioner W.P(C) No. 20859 of 2009 -2- contended that the petitioner was not aware of the posting of the case for evidence, since the Workmen's Compensation Commissioner was not sitting for a long period neither the petitioner nor the advocate was aware of the fresh posting of the case for evidence. That petition was dismissed by Ext.P5 holding that averments of the petitioner are not correct and that the petitioner was repeatedly absent for many postings consecutively. In that order it was also held that the contention of the petitioner that there were no regular sittings of the Commissioner for the last one year was also not true. The petitioner is challenging Exts.P3 and P5 orders. 2. The writ petition is stoutly opposed by the 2nd respondent. According to the 2nd respondent, the petitioner is guilty of wilful negligence in the matter and therefore he is not entitled to any further opportunity in the case. 3. After considering the arguments of the counsel for the petitioner, I am also not satisfied that the petitioner has properly explained his absence before the Workmen's Compensation Commissioner when the same came up for evidence. However, taking a lenient view, I am inclined to direct the Workmen's W.P(C) No. 20859 of 2009 -3- Compensation Commissioner to give the petitioner another opportunity to put forward his case. However, I am of opinion that that can only on the condition that the petitioner deposits the entire amounts awarded by Ext.P3 before the Workmen's Compensation Commissioner as a condition for restoration of the workmen compensation case to file for fresh adjudication and the further condition that the petitioner pays costs in this writ petition to the 2nd respondent. 4. Accordingly, the writ petition is disposed of with the following direction: If the petitioner deposits the entire amount covered by Exts.P3 award, Exts.P3 and P5 orders would stand set aside. In such an event the Workmen's Compensation Commissioner, Kollam shall restore WCC No. 13/03 to file and re-adjudicate the claim after affording an opportunity to both sides to adduce evidence, if they request for the same. However, I make it clear that the petitioner shall be ready with his evidence on all posting days and on no account the petitioner shall seek adjournment of the case. The Workmen's Compensation Commissioner shall complete the fresh adjudication of the case and pass award, as W.P(C) No. 20859 of 2009 -4- expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The petitioner shall also pay an amount of Rs. 5,000/- as costs to the 2nd respondent in this writ petition, which shall also be a condition for setting aside Exts.P3 and P5. If the petitioner fails either to deposit the amounts covered by Ext.P3 or to pay the costs as directed above to the 2nd respondent within two weeks, the writ petition would stand dismissed and it would be open to the 2nd respondent to take steps to enforce Ext.P3 award. S. SIRI JAGAN, JUDGE rhs