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Arul Raj and ors. Vs. Elisikutty - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberA.S. No. 326 of 1958
Judge
Reported inAIR1960Ker223; (1959)IILLJ770Ker
ActsWorkmen's Compensation Act, 1923 - Sections 23 and 32; Workmen's Compensation Rules - Rule 41
AppellantArul Raj and ors.
RespondentElisikutty
Appellant Advocate Panampilli Govinda Menon,; P.K. Krishnakutty Menon and;
Respondent Advocate K.P. Abraham, Adv.
DispositionCase remanded
Excerpt:
- - we think that this objection is well founded and has to prevail......of the deceased. the commissioner proceeded to take evidence. me recorded the evidence of the widow, the father, the sister and also of one independent witness produced on behalf of the father and sister of the deceased. after recording such evidence, he passed the final order in favour of the widow, that she alone was depending on the deceased and that she is entitled to the entire amount of compensation. it is against that order that the father and unmarried daughter have preferred this appeal. 2. the main ground urged on behalf of the appellants is that the procedure followed by the commissioner was highly irregular and that it has not considered the claim of the appellants on its merits. we think that this objection is well founded and has to prevail. when the father and the.....
Judgment:

Sankaran, C.J.

1. This appeal is directed against the award made in this case under the provisions of the Workmen's Compensation Act. One Arumugham, a labourer working in Thunkamala Estate was injured on 26-4-1957 and he died on 13-5-1957. Themanager of the estate deposited a sum of Rupees 1,200/- with the Commissioner for Workmen's Compensation, on 17-6-1957. This amount was to be paid to the dependants of the deceased. The Commissioner directed the District Labour Officer to inquire into the master and to send up the report on the question as to the persona who were depending on the deceased.

The report of that officer is to the effect that the present respondent who is the widow of the deceased was the only person depending on him. But the Commissioner was not prepared to accept that report without further enquiry.

Accordingly he published a notification calling upon others who were dependants of the deceased to appear and prefer their claims. The father of the deceased had already preferred claim as a dependent of the deceased. After the Gazette notification, the father preferred another claim on behalf of the minor unmarried daughter of the deceased. The Commissioner proceeded to take evidence. Me recorded the evidence of the widow, the father, the sister and also of one independent witness produced on behalf of the father and sister of the deceased. After recording such evidence, he passed the final order in favour of the widow, that she alone was depending on the deceased and that she is entitled to the entire amount of compensation. It is against that order that the father and unmarried daughter have preferred this appeal.

2. The main ground urged on behalf of the appellants is that the procedure followed by the Commissioner was highly irregular and that it has not considered the claim of the appellants on its merits. We think that this objection is well founded and has to prevail. When the father and the sister had come forward as claimants and when their claim was denied by the widow, the dispute between them had to be properly enquired into and judicially decided. The diseretion vested in the Commissioner who has undoubtedly a judicial discretion. The relevant sections of the Workmen's Compensation Act and also the rules framed under the Act make it clear that the enquiry contemplated in the matter of deciding disputes of this character should be an open enquiry in which the contesting parties may participate. The rules provide for the framing of issues. The enquiry is to be conducted in accordance with the provisions of Section 23 of tins Act and also of rule 41. When the claim is contested there is no meaning in taking ex parte evidence and in arriving at a decision on the basis of such ex pavte evidence. This was what the Commissioner did in the present case. He examined the widow on a date about which the other claimants had no notice. Naturally they had no opportunity to challenge her statements by cross-examining her. Similarly the examination of the, father, the sister and the independent witness was also conducted without notice to the widow and without giving her an opportunity to cross-examine these persons. Further it is seen from the Commissioner's order that he has not applied his mind to the evidence given on the side of the rival claimants. Nothing is stated about the acceptability or otherwise of such evidence. It is obvious that the order passed by the Commissioner cannot be accepted as a judicial order passed by him after conducting an enquiry in the manner contemplated by the Act and the rules framed under the Act. In this view of the matter the ease has to be sent back for a proper disposal of the claim. We do not wish to express any opinion at this stage on the merits of the claim put forward by the several contestants.

3. In the result, this appeal is allowed and theorder passed by the Commissioner is set aside. Thecase is sent back to the Commissioner for freshdisposal of the several claims in accordance withlaw and in the light of the observations made above.


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