Siri Jagan, J.

The Employees' State Insurance Corporation has filed this appeal challenging the order of the Employees' Insurance Court, Kollam, in Insurance Case No.21 of 2003. The same was filed by the respondents herein. The matter relates to imposition of damages under Section 85B of the Employees' State Insurance Act, 1948 (for short, "the Act") for the period from May, 1980 to March, 1993, on the 2nd respondent whose management was taken over by the 1st respondent. The 2nd respondent committed delay in payment of contributions under the Act in respect of its employees. The Corporation imposed damages of Rs.19,06,968/- for the delay in payment of the contributions. Respondents filed Insurance Case No.21 of 2003 challenging the imposition of damages. They contended that the 2nd respondent was in great financial difficulties, which led to the 2nd respondent being declared as a relief undertaking under the Kerala Relief Undertakings (Special Provisions) Act, 1961, consequent to which, the State Government, who owns the shares of both the respondents took steps to rehabilitate the 2nd respondent and it is in the course of that effort, the management of the 2nd respondent was entrusted to the 1st respondent. They submitted before the Insurance Court that since financial difficulty is one of the grounds which can be pressed into service for avoiding damages under Section 85B of the Act, the Corporation could not have validly imposed damages under Section 85B of the Act for the delay in payment of contributions. The Insurance Court accepted the contentions of the respondents and set aside the order of the appellants imposing damages of Rs.19,06,968/- on the 2nd respondent. That order is under challenge in this Insurance Appeal.

The contentions raised by the appellants are two fold. First is that financial difficulties are not grounds for avoiding payment of damages under Section 85B of the Act. It is submitted that the 2nd respondent is statutorily bound to pay the employees' contributions deducted from the wages of the employees along with the employers' contributions within the time stipulated in the Regulations under the Act. When there is default in payment of contributions, the Corporation is statutorily empowered to realise damages under Section 85B of the Act in accordance with the formula prescribed under Regulation 31C of the Employees' State Insurance (General) Regulations. The second contention is that the application filed by the respondents before the Insurance Court is barred by limitation.

2. We have considered the rival contentions in detail. At the outset, it must be noted that probably the appellants took the contention regarding limitation on the basis of the Full Bench decision of this Court in E.S.I. Corporation v. Excel Glasses Ltd. (2003 (3) KLT 42). But, admittedly that decision has been overruled by the Supreme Court in E.S.I. Corporation v. Santhakumar (2007 (1) KLT 155). Therefore that contention no longer survives.

3. The question of effect of financial difficulties as a defence in the matter of imposition of damages has been subject matter of decisions of this Court and the Supreme Court under the Act as well as under the Employees' Provident Funds and Miscellaneous Provisions Act. The Insurance Court appears to have wrongly assumed that the decisions under the Employees' Provident Funds and Miscellaneous Provisions Act cannot be applied to imposition of damages under the Act on the ground that the two Legislations are not in pari materia. But a Division Bench of this Court had in E.S.I. Corporation v. Premanandan (2007 (2) KLT 666) held that as far as the question of imposition of damages for delayed payment of contributions under the two Acts is concerned, the two Legislations are in pari materia and the decision in one can be applied in respect of matters arising under the other Act regarding imposition of damages. We find that both under the Employees' Provident Funds and Miscellaneous Prov