(Prayer: This MFA is filed U/Sec.30(1) of Workmen’s 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 Workmen’s 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.)
1. 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 provided in the Act or these Rules the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 13 and 15 to 30: Order IX; Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII; and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, in so far as they may be applicable thereto:
(a) for the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alterations not affecting the substance as may be necessary or proper to adapt them to the matter before him;
(b) the Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions if he is satisfied that the interests of the parties will not thereby be prejudiced.
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 default bars fresh suit.-(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non- appearance 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 otherwise as it thinks fit, an shall appoint a day for 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 learne
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d 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: ORDER i) The above appeal is allowed. ii) The award dated 21.01.2011 passed in WCA/NF:NO:95/2009 by the learned Labour Officer and Commissioner for Workmen's Compensation, Haveri is set aside. iii) The amount in deposit shall be refunded to the appellant-insurance company forthwith.