AATHANKUTTY @ HASSAN KUTTY S/O. MUHAMMED HAJI, RESIDING AT AYYAN KULANGARA KOTTAYI, PALAKKAD TALUK, PALAKKAD DISTRICT Vs. CHAMU RESIDING AT VALIYAPARAMBU HOUSE, ODANUR, PARALI P.O PALAKKAD TALUK, PALAKKAD DISTRICT

JUDGEMENT

(1.) THIS appeal is by the respondent in a case decided by the Workmen's Compensation Commissioner. The incident as alleged was on 29.4.1998. Drastic amendments to the Workmen's Compensation Act 1923, including to Section 2A, came in as per Act 46 of 2000 with effect from 8.12.2000. The appellant complains that the application was entertained by the Commissioner by condoning delay even without notice to him and further that he did not have appropriate opportunity to contest the matter before the Commissioner. We are also told that a claim to set aside the award passed ex parte was allowed by the Commissioner on conditions which the appellant did not satisfy.

(2.) HEARING learned counsel for the appellant and the respondent claimant on the basis of the materials on record, we find ourselves unable to sustain the order. The nature of pleadings, the evidence of the applicant vis   -vis . the provisions of the Act as it stood on 29.4.1998, the date of the alleged accident, prompted us to interfere. But, at the same time, we also see that the appellant projects a case in the appeal that he had, in fact, entrusted the work of digging the well to a person by name Srini. If that were so, it may have to be considered on evidence as to whether the applicant could claim to be employed under him in the course of any of his trade or business. For that, the presence of that person on the array of parties is necessary. Taking a lenient view in favour of the respondent claimant having regard to his present physical status, we are inclined to grant a further opportunity to the respondent claimant to adduce further evidence, though, on the available materials, we could stand persuaded to allow the appeal and dismiss the claim petition outright. Since we are making the order of remand which will be an open one with right of parties to seek impleadment of additional respondents and because the Commissioner will have to re -consider the materials available on record and further materials that may be brought in, we dissuade ourselves from expressing further on evaluation of the materials and evidence and also inferences available therein, in the backdrop of law that stood as on 29.4.1998, the date of the incident. In the result, the impugned order is set aside and the case is remitted for re -consideration to the Workmen's Compensation Commissioner. Any amounts paid or released to the claimant will be subject to further orders that may be passed by the Commissioner following the order of remand and further adjudication. Parties will be at liberty to make further pleadings and adduce evidence. The appellant shall produce before the Commissioner the name and address of the aforesaid Srini. He will also be notified of the proceedings. The parties are directed to mark appearance before the Commissioner on 10.7.2012.