IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 MFA.No. 1283 of 2001(B) ---------------------------------- WCC.283/1994 of COMMISSIONER FOR WORKMEN'S COMPENSATION ,KOZHIKODE .................... APPELLANT: OPPOSITE PARTY ------------------ V.ABDUL KAREEM, ABSHA BRICKS, KANNATTIKULAM, CHERUVANNUR, KOLOTHARA. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT: APPLICANT --------------------- SHAMSHEER, S/O. ABDULLAKUTTY, AREEKADAN HOUSE, MELANGADY P.O., KONDOATTY,, ERNAD TALUK. BY ADV. SRI.THOMAS ANTONY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.1283 OF 2001 ------------------------------------- Dated 4th February, 2008 JUDGMENT Koshy,J . Appellant was the opposite party in W.C.Case No.283 of 1994. Respondent filed an application claiming compensation contending that he met with an accident during the course of employment under the appellant. On receiving applications, workmen's compensation cases are registered only after preliminary examination. Therefore, when the application was filed, it was numbered as W.C.C.No.487 of 1993 and claimant was called for preliminary examination. Since the claimant (first respondent) did not appear on the date fixed for the preliminary examination, the Commissioner decided to close the matter and the matter was dismissed even before notice was issued to the appellant. But, after dismissal of the same, claimant appeared and on preliminary examination, Commissioner found that there is prima facie case. Therefore, Commissioner registered the matter and it was numbered as W.C.C.No.283 of 1994. In the impugned order itself it is stated that old number was 487 of 1993. There is no question of resjudicata because first order was in the preliminary stage. The Commissioner only gave a new number when the claimant appeared and notice was issued to the appellant only in this case. There is no MFA.1283/2001 2 adjudicated decision in the earlier order. According to the appellant, the respondent was not employed by him and denied all the averments before the Commissioner. A reading of the impugned order shows that appellant was not allowed to adduce evidence. In these circumstances, we set aside the impugned order and remand the matter to the Commissioner on merits. Both sides are allowed to adduce further evidence. Parties shall appear before the Commissioner on 24th March, 2008. The amount deposited should be deposited as fixed deposit in the treasury itself so that interest will not be lost. Question of refund or payment to the respondent can be decided at the time of passing final orders by the Commissioner. Appeal is allowed by way of remand. J.B.KOSHY JUDGE K.HEMA JUDGE tks