Karnataka High Court

The Divisional Manager, vs Halappa S/O Siddlingappa ... on 16 July, 2021

Author: P.Krishna Bhat

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH                        R

              DATED THIS THE 5TH DAY OF JULY 2021

                            BEFORE

            THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

                  MFA NO. 24208 OF 2011 (WC)
BETWEEN

THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
A.M.ARCADE BUILDING, SHAMNUR SHIVASHANKARAPPA ROAD,
DAVANAGERE, NOW REP. BY ITS
ASST. MANAGER, REGIONAL OFFICE, HUBLI
                                                ...APPELLANT
(BY SRI.RAJASHEKHAR S ARANI, ADV.)
AND
1 . HALAPPA S/O SIDDLINGAPPA HUGGISHETTAR,
AGE: 35 YEARS, OCC: DRIVER R/O SAVANUR, TQ. SAVANUR, DIST.
HAVERI

2 . THE MANAGING DIRECTOR,
M/S VIJAYANAND ROADLINES LTD.,
GIRIRAJ ANNEX, CIRCUIT HOUSE ROAD, (I.B. ROAD), HUBLI
                                                  ...RESPONDENTS

   (BY SRI.M H PATIL AND G S HULMANI , ADVS. FOR R1
  *by SRI. HANUMANTHAREDDY SAHUKAR, ADV., FOR R2)

       THIS MFA IS FILED U/SEC.30(1) OF WORKMENS COMPENSATION
ACT 1923, AGAINST THE JUDGMENT AND AWARD DTD:21.01.2011
PASSED IN WCA/NF:NO:95/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMENS COMPENSATION, HAVERI
DISTRICT HAVERI, AWARDING THE COMPENSATION OF RS.1,74,703/-
WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF PETITION
TILL ITS DEPOSIT.

       Corrected vide Court order dated 16/7/2021

                         Sd/-
                         PKBJ
                                         2


     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                                  JUDGMENT

Short question that arises for consideration in this

appeal is whether after a claim petition was dismissed for

non prosecution, the claimant can file a fresh petition on

the same cause of action without getting the original

claim petition restored.

2. The facts lie in narrow compass. Claimant

Halappa was working as a driver in respect of lorry

bearing registration No.KA-25/B-574 owned by respondent

No.1 M/s. Vijayananda Roadlines Ltd., and insured with

appellant herein. On 11.10.2005 while the claimant was

driving the lorry, it met with an accident and claimant

suffered injuries. A case in Crime No.131/2005 was

registered in Hirebagewadi Police Station in connection

with the accident. The claim petition filed by him in

WC/NF/No.159/2005 before the learned Labour Officer and

Commissioner for Workmen's Compensation, Hubballi

came to be dismissed for non-prosecution by order dated

27.02.2007. Subsequently, he filed restoration petition in

Miscellaneous case No.2/2007. It was dismissed by order

dated 15.04.2008. A fresh claim petition was thereafter

filed in WCR/NF/No.95/2009 before the learned Labour

Officer and Commissioner for Workmen's Compensation,

Haveri (for short, 'Commissioner'). After inquiry, the

learned Commissioner by award dated 21.01.2011

awarded compensation of Rs.1,74,703/- with interest

thereon at 12% P.A.

3. The only contention advanced by the learned

counsel Sri.Rajasekhar S Arani for the appellant is that

since earlier claim petition in WC/NF/No.159/2005 was

dismissed for non prosecution, the claimant is not entitled

to file a fresh claim petition on the same cause of action.

4. The learned counsel places reliance on Rule 41

of the Employee's Compensation (Central) Rules, 1924

and submitted that since provision under order IX of Code

of Civil Procedure, 1908 is applicable to the proceedings

under the Employee's Compensation Act, it was incumbent

upon the claimant to challenge the order dated

15.04.2008 passed in Miscellaneous Case No.2/2007,

rejecting the restoration petition and he having not done

so, claimant is not entitled to file a fresh petition. His

precise contention is that the learned Commissioner has

passed the impugned award totally overlooking the said

position of law. Therefore claim petition ought to have

been dismissed and the present appeal is entitled to be

allowed.

5. Learned counsel Sri.Hanumathreddy Sahukar for

respondent No.2 supports the said contention of the

learned counsel appearing for the insurance company.

6. There is no dispute about the fact that the

Provisions of Civil Procedure Code 1908 (hereinafter

referred to as "CPC") to the extent it is permitted under

the Employee's Compensation (Central) Rules, 1924 is

applicable for all proceedings before the learned

Commissioner.

7. Rule 41 of the Employee's Compensation

(Central) Rules, 1924 reads as follows:

41. Certain provisions of Code of Civil Procedure, 1908, to apply .-Save as otherwise expressly pro vide d in the Act o r these Rules the following provisio ns of the First S chedule to the Code of Civil Procedure, 1908, namely, those contained in Orde r V, Rules 9 to 13 and 15 to 30: Orde r IX; Order XIII, Rules 3 to 10; Orde r XVI, Rules 2 to 21; Order XVII; and Orde r XXIII, Rules 1 and 2, shall apply to proce edings be fore Commissioners , in so far as they m ay be applicable there to:

Provided that-

(a) for the purpose of facilitating the application o f the said pro visions the Commissioner may construe them with such alte rations not affecting the substance as may be necessary or prope r to adapt them to the matter be fore him;

       (b)           the        Commissio ner              may,           for
                     sufficient               reasons,          procee d
                     otherwise than in acco rdance with
                     the said pro visions if he is              satisfie d

that the inte rests of the parties will not the reby be pre judice d.

8. Plain reading of the above Rule shows that

order IX of CPC is completely applicable to the

proceedings before the learned Commissioner.

9. It is borne out from the records that the

present claimant on the same cause of action had earlier

filed WC/NF/No.159/2005 before the learned Workmen's

Compensation Commissioner, Hubballi and the same came

to be dismissed for non prosecution on 27.02.2007. The

records also disclose that consequently he filed

restoration petition in Miscellaneous Case No.2/2007 and

after inquiry, the learned Workmen's Compensation

Commissioner, Hubballi dismissed the same by his order

dated 15.04.2008. Now, the question is whether the

claimant can maintain a fresh claim petition when the

earlier order of dismissing the proceedings for non-

prosecution has became final.

10. It is necessary to make a reference to Order IX

Rule 9 of CPC. It reads as follows:

9.Decree against plaintiff by def ault bars fresh suit.-(1) Where a suit is wholly o r partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in res pect o f the same cause of action. But he may apply for an order to set the dismissal aside , and if he satisfie s the Court that there was sufficient cause for his non- appe arance when the suit was called on for hearing, the Court shall make an order setting side the dismissal upon such terms as to costs or othe rwise as it thinks fit, an shall appoint a day fo r proceeding with the suit.

11. The above clearly shows that the claimant shall

be precluded from bringing a fresh claim petition in

respect of the same cause of action. In that view of the

matter, the fresh claim petition could not have been

entertained by the learned Workmen's Compensation

Commissioner, Hubballi.

12. The above view of mine also derives support

from an earlier order passed by a Co-ordinate Bench of

this Court in MFA.No.4116/2008 dated 16.11.2016

(Divisional Manger V/s Rahimansab and another)

accordingly the claim petition is held to be not

maintainable. Hence, the following: