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2018 DIGILAW 804 (RAJ)

HIMMAT SINGH v. J. K. NATURAL MARBLE LIMITED

2018-03-20

VINIT KUMAR MATHUR

body2018
JUDGMENT AND ORDER : Vinit Kumar Mathur, J: Despite service, no one has appeared on behalf of the respondent No.1 2. The present misc. appeal has been filed against the order dated 10.01.2017 passed by the Commissioner, Workmen Compensation (Jurisdiction District Rajsamand), Bhilwara in WC Case No.16/2015 whereby the application preferred by the appellant under Order 9 Rule 9 read with Section 151 CPC has been rejected. 3. The appellant preferred a claim petition in view of the injuries suffered by him due to the accident occurred on 29.09.2004 while working at the factory premises of the respondent No.1. 4. To this claim petition a reply was filed by the respondent and the issues were framed on 11.11.2011. 5. The matter was fixed for evidence of the claimant on 13.07.2012. The claimant could not appear before the Court for evidence on 13.07.2012 and, therefore, next date was fixed by the Court as 12.10.2012. Even on that date the evidence could not be led and, therefore, another date was fixed i.e. 13.01.2013. Since on 13.01.2013 when claimant failed to appear to tender his evidence, a last chance was granted to the claimant for his evidence on 05.04.2013. Since, on 05.04.2013 when the witness did not appear to tender his evidence, the claim petition was dismissed. 6. In these circumstances, the claimant preferred an application under Order 9 Rule 9 read with Section 151 CPC praying therein that he could not appear for evidence on 05.04.2013 because his uncle Bhanwar Singh died and since he was attending the last rites, he could not make himself available for evidence in the Court on 05.04.2013. The learned trial Court found that on atleast on 3 occasions the appellant could not appear before the Court for evidence and the death of his uncle was not the reasonable cause for him for his non-appearance on the date fixed for his evidence. Therefore, the application for restoration of the claim petition was rejected by the learned Commissioner, Workmen Compensation. 7. Therefore, the application for restoration of the claim petition was rejected by the learned Commissioner, Workmen Compensation. 7. Learned counsel for the appellant while assailing the validity of the order dated 10.01.2017 has submitted that due to unforeseen circumstances he could not appear before the Court on the date fixed i.e. 05.04.2013 and the cause was also genuine, as all of a sudden, his uncle Bhanwar Singh expired due to felling in a well and, therefore, he had no option but to attend the funeral and the last rites of his uncle. 8. Learned counsel for the respondent No.2 submits that the interest liability due to pendency of the restoration application from the year 2013-2017 should not be fastened on the respondent as for no fault of the respondent the matter is pending consideration. 9. I am of the view that the cause for which the appellant could not appear before the learned Workmen Compensation Commissioner on the said date due to the demise of his uncle Bhanwar Singh is a reasonable cause. The contingency of a close family member having died is something which cannot be prempted and to attend the funeral and last rites of close family member is social obligation which one has to perform and, therefore, it was a reasonable cause for not attending the Court by the appellant on 05.04.2013 and thus, the application under Order 9 Rule 9 read with Section 151 CPC should have been allowed by the learned Commissioner. 10. In view of whatever mentioned above, the present misc. appeal is allowed and the order dated 10.01.2017 is quashed and set aside. The learned Commissioner, Workmen Compensation shall proceed with the matter while giving last opportunity to produce the evidence to the appellant provided the appellant deposits a cost of Rs.5,000/- to the respondent No.2. 11. It will also be open to the respondent to agitate the matter with respect to the grant of interest during the pendency of the claim petition. 12. The parties shall appear before the learned Commissioner, Workmen Compensation on or before 13.04.2018.