Maharashtra Freight Carriers Pvt ... vs Kusum Lata & Ors
2010 Latest Caselaw 2874 Del

                                                         REPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                           FAO No.95/2009


                                    Date of Decision: June 01, 2010


       MAHARASHTRA FREIGHT CARRIERS PVT LTD ..... Appellant
                   through Mr. Prashant Sharma, Advocate

                  versus


       KUSUM LATA & ORS                         ..... Respondents
                    through Mr. Basant Kumar Gupta, Advocate
                    for respondent No.1.
                    Mr. Nawal Kishore Jha, Advocate for
                    respondent No.4.

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? Yes
2.     To be referred to the reporter or not? Yes
3.     Whether the judgment should be reported in the 'Digest'? Yes

REKHA SHARMA, J. (ORAL)

This appeal has been preferred against the notice dated

October 03, 2008 issued by the Sub Divisional Magistrate, Vivek

Vihar, Delhi, calling upon the appellant to deposit a sum of

Rs.3,17,086/-, failing which, the notice goes on to say that the amount

will be recovered through arrest warrants or attachment. The

impugned notice is a sequel to an order dated August 04, 2008 passed

by the Commissioner under Section 4A of the Workmen's

Compensation Act, 1923 granting in favour of respondents No.1 and 2

a sum of Rs.1,04,120/- as interest on the amount of compensation

awarded to the said respondents on account of death of Shri Pratap

Singh, husband of respondent No.1 while he was in employment with

the appellant and also granting a further sum of Rs.1,58,500/- by way

of penalty.

At the outset, it is submitted by learned counsel appearing for

respondents No.1 & 2 that the appellant is liable to pay only the

penalty amount and that in so far as the interest is concerned, the

liability to pay the same lies with the Insurance Company. It is also

submitted by the learned counsel that the impugned notice dated

October 03, 2008 has since been superseded and has been replaced

by another notice and thereby instead of calling upon the appellant to

deposit a sum of Rs.3,17,086/-, it has been asked to deposit a sum of

Rs.1,58,500/- only.

A perusal of the order dated August 04, 2008 whereby the

appellant has been saddled with the liability to pay the penalty

amount, goes to show that despite service of notice, neither the

appellant nor the Insurance Company who is liable to pay the interest

appeared before the Commissioner to contest the notice resulting in

an ex-parte order against them and consequently, the Commissioner

directed that a recovery certificate be issued under Section 31 of the

Workmen's Compensation Act, 1923. The appellant preferred no

appeal against the said order.

It is submitted by the learned counsel for the appellant that by

way of the present appeal, he has also impugned the order dated

August 04, 2008. However, it is not disputed that in so far as the

appeal against the said order is concerned, it is barred by the law of

limitation. It was supposed to have been filed within 60 days from the

date of the order which expired on October 03, 2008 but it was filed

on February 28, 2009.

The appellant has filed an application for condonation of delay

in filing the appeal vis-à-vis the order dated August 04, 2008. It is

stated therein that the appellant had come to know of the said order

only after it had received the impugned notice dated October 03, 2008

and that upon coming to know of the same, it applied for a certified

copy of the order dated August 04, 2008 on October 23, 2008 which it

received only on December 17, 2008. According to the counsel, if the

time taken in obtaining the certified copy is excluded for the purpose

of computing limitation, then his appeal challenging the order dated

August 04, 2008 is within time. The said submission of the learned

counsel for the appellant is liable to be rejected, for the reason that it

is not the case of the appellant in appeal before me that it had not

received any notice from the Commissioner, Workmen's

Compensation before passing of the order dated August 04, 2008. It

is clearly recorded in the order dated August 04, 2008 that neither

respondent No.1 nor respondent No.2 responded to the notice. In this

view of the matter, if the appellant chose not to appear before the

Commissioner despite service of notice, it cannot seek condonation of

delay on the ground that it came to know of the order dated August

04, 2008 only upon the receipt of the notice dated October 03, 2008.

As regards the submission that if the time taken in obtaining certified

copy of the order dated August 04, 2008 is excluded, then the appeal

filed by the appellant in relation to the said order is within time, is

totally misconceived. The period for filing the appeal against the

order in question was 60 days. The appellant applied for certified

copy of the order itself after the expiry of the said period of 60 days.

In this view of the matter, the appellant cannot claim any benefit on

account of the time taken in obtaining the certified copy.

For the foregoing reasons, I find no merit in the appeal. The

same is dismissed.

REKHA SHARMA, J.

JUNE 01, 2010 ka