Point of Law: Workmen Compensation - Claimant shall be precluded from bringing a fresh claim petition in respect of same cause of action. In that view of matter, fresh claim petition could not have been entertained by learned Workmen's Compensation Commissioner.

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.KA25/B574 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 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:

Provided that

(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 ha