The court upheld the trial court's decision to set aside an ex-parte award, emphasizing proper service of notice under the Workmens Compensation Act.

ORAL ORDER:

1. Heard learned counsel for the parties.

2. Rule, made returnable forthwith, heard finally by consent of the parties.

3. The petitioners are challenging the judgment and order passed by the learned Civil Judge, Senior Division and Commissioner for Workmens Compensation, Hingoli [the learned Commissioner, for short] passed on 7th March, 2009 in Misc. Application NO.63 of 2008.

4. By this order, ex-parte Award dated 2nd December, 2006, passed in Fatal Accident No.09 of 2005 is set aside against all the Respondents. Parties are directed to appear in Fatal Accident No.9 of 2005 on 6th April, 2009 with condition that the applicant shall file written statement on that date itself.

5. Learned counsel for the petitioner presented certified copy of F.A. No.9 of 2005. It is marked by letter "X" for identification. It was made available to learned counsel Mr. Salunke for Respondent No.1 and Advocate Mr. Malte for Respondent No.2, for inspection. It is only copy, made available, it is accepted and taken on record.

6. It is not in dispute among the parties that F.A. NO.9 of 2005 was filed by the present Petitioners in the Court of Ex-office Commissioner for Workmens Compensation and Civil Judge, Senior Division, Hingoli [the learned Commissioner, for short]. It was registered as F.A. No.9 of 2005. Said application was filed under section 4 (1) (a) of the Workmens Compensation Act , 1923 (the said Act, for short). This application was heard and partly allowed by the learned Commissioner by the judgment and Award dated 2nd December, 2009. Respondent Nos.1 and 2, in that case, were held jointly and severally liable to make payment of compensation of Rs. 3,63,820/- within three months. 12% interest was awarded from the date of filing of the petition dated 8th July, 2005 till the realisation of the amount. The respondent Nos.1 and 2, in that case, were saddled with the costs of the petition, payable to the petitioners in that case. The petition/ case was dismissed against Respondent No.3 in that case, who was Insurance Company. The present Respondent No.1 was Respondent No.2 in F.A. No.9 of 2005. Present Respondent NO.2 filed Misc. Civil Application NO.63 of 2008 in the Court of learned Commissioner. In that M.A.C. No.63 of 2008, present petitioners were non-applicant Nos.1 and 2 and Insurance Company was non-applicant No.3. This M.A.C. No.63 of 2008 was for condonation of delay and quashing and setting aside the ex-parte order dated 17th February, 2006 and quashing and setting aside the Award dated 2nd December, 2008 in F.A. No.9 of 2005. It appears from copy of M.A.C. No.63 of 2008, which is on record Annexure-C, that it was filed on 9th June, 2008.

7. M.C.A. NO.63 of 2008, after hearing the parties, came to be partly allowed, as mentioned in the foregoing paragraphs of this order. This order, passed by the learned Commissioner, in M.C.A. NO.63 of 2008 is impugned in this writ petition.

8. Counsel for the Petitioner points out Annexure-B, page 9 to the compilation of this writ petition. It is reminder letter by the learned Commissioner to the learned Civil Judge, Senior Division, Sindhudurg - Oras. From the contents of this letter it appears that F.A. No.9 of 2005 was pending before the learned Commissioner. One Mr. Vinod, son of the present petitioner, met with an accidental death on 14th January, 2005 in Government hospital at Sawantwadi. It was further communicated to the learned Civil Judge, Senior Division that Deccan Mineral Company, Kolhapur had deposited amount of compensation in the Court of learned Civil Judge, Senior Division, Sindhudurg - Oras. Learned Civil Judge, Senior