E.S.I.C. vs M/S Kelvin Auto Industries & Anr
2010 Latest Caselaw 1893 Del

                                                      UNREPORTABLE

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                              FAO No.161/1989

                                      Date of Decision: April 12, 2010


       E.S.I.C.                          ..... Appellant
                          Through Mr. Bhupesh Narula, Advocate

                     versus


       M/S KELVIN AUTO INDUSTRIES & ANR      ..... Respondents
                     Through Mr. P.L.Bhandari, Advocate for R-1

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the 'Digest'? No

REKHA SHARMA, J. (ORAL)

C.M. Nos.10051/2008 & 10052/2008

These are two applications; one for restoration of the appeal

which was dismissed for non-prosecution on January 04, 2008 and, the

other for condonation of delay in filing the application for restoration.

For the reasons stated in the applications, the same are allowed and

the delay in filing the application for restoration is condoned. The

appeal consequently is restored to its original number.

The applications are disposed of.

FAO No.161/1989

This appeal has been preferred against the order of an

ESI Judge dated February 09, 1989 whereby an earlier order passed

by the same Court dated August 22, 1987 was modified. Learned

counsel for the appellant has handed over to me today in the Court

the earlier order passed by the ESI Court dated August 22, 1987. As

per the said order, the dispute between the parties was settled and

consequently, the appellant herein was to pay to the legal

representatives of the deceased 1/3 rd of the statutory liability of the

compensation and further 1/3rd was to be paid by the respondent

M/s Kelvin Auto Industries, with whom the deceased was employed.

It is not disputed by learned counsels for the parties that an

appeal against the order dated August 22, 1987 was preferred in this

Court and by an order dated August 23, 2002 the same was dismissed

holding that it was without any merit.

Insofar as the impugned order dated February 09, 1989 is

concerned, the ESI Court directed the appellant herein to refund the

1/3rd amount which it was to pay to the legal representatives of the

deceased, as soon as its liability towards the dependents of the

deceased came to an end.

It is submitted by the learned counsel for the appellant that

there was no justification in modifying the order dated

August 22, 1987 and directing the appellant herein to refund the 1/3 rd

amount to the respondent which it was to pay to the legal

representatives of the deceased, once the liability had already been

settled vide order dated August 22, 1987.

Having heard the counsels for the parties, I am of the view that

it is the order dated August 23, 2002 passed by this Court which has

to prevail and by virtue of this order, the appeal preferred by the ESIC

was dismissed. In other words, the order passed by the ESI Court

dated August 22, 1987 was upheld. In this view of the matter, the

appellant and respondent No.1 are liable to discharge their liabilities

in terms of order dated August 22, 1987. The modified order dated

February 09, 1989 which has been impugned in this appeal lost its

relevance consequent to the order of this Court dated

August 23, 2002.

The appeal is disposed of as noticed above.

REKHA SHARMA, J.

APRIL 12, 2010 ka