M/S. WONDERLA HOLIDAYS LIMITED v. MR. SHIVAKUMAR.C

Sri.Prashanth.B.K., counsel the petitioner and Sri.Reddy.G.V.P., counsel for the respondent have appeared in person.

2. The brief facts are these: The petitioner is a Public Limited Company incorporated under the Companies Act and is engaged in the business of running an amusement park and thereby providing service to the public by way of entertainment. It is said that it is the only amusement park in the State of Karnataka offering such wide range of water and other adventure activities and the park is duly certified as per the international safety and quality standards. The petitioner has setup its Park at Bengaluru in the year 2003. It is stated that Mr.Shivakumar.C - the respondent was one of the workmen employed with the petitioner Company from 20.08.2005 onwards till he was dismissed from the services on 12.02.2019 on his proven acts of misconducts. The petitioner contends that the respondent joined the services of the petitioner Company as a Junior Mechanic - 3 - NC: 2024:KHC:47778 WP No. 5982 of 2023 (Trainee) and subsequently, he was promoted as a Technician and was working in Water Management Department. While the matter stood thus, the respondent was issued with a charge sheet cum show cause notice dated 09.12.2015 for his certain serious acts of alleged misconducts and subsequently, he was placed under suspension with effect from 16.12.2015. The petitioner ordered domestic inquiry into the charges alleged against the respondent by appointing an inquiry officer. The inquiry officer conducted inquiry from 09.01.2016

18.12.2018 over the span of 62 hearings and submitted his enquiry report and findings on 03.01.2019, based on which the petitioner terminated the respondent from its service. As things stood thus, the respondent during the period of his suspension, just before the petitioner passing the dismissal order, filed a claim statement on 30.01.2019 before the Principal Senior Civil Judge and CJM and Commissioner under Employees' Compensation Act, 1923 at Ramanagara claiming compensation and medical reimbursement and the claim statement came to be registered as E.C.A.No.01/2019. The respondent contended that he met with an accident on

29.07.2009 and sustained injuries. He was treated in Manipal Hospital and doctors advised him to take rest for a period of - 4 - NC: 2024:KHC:47778 WP No. 5982 of 2023 four months and as per medical advice, he took rest for the said period and reported for duties and discharged his duties. It was contended by the respondent that he had undergone one more operation during the year 2016 with the cost of Rs.60,000/- and in this regard, he requested the petitioner to reimburse the said amount. However, the petitioner did not consider his request. It was also contended that he had undergone another operation on 29.11.2017 incurring the cost of Rs.40,133/-. With this background, the respondent sought compensation and medical reimbursement Rs.10,98,020/- along with 18% interest. The petitioner filed statement of objections and urged several contentions. Among other grounds, it prayed for dismissal of the claim petition. The petitioner moved an application under Section 10 of the Employees' Compensation Act, 1923 R/w. Section 5 of the Limitation Act, 1963 to reject the claim petition as barred by limitation and as not maintainable. The respondent filed objections application. The Trial Court vide order dated 17.12.2022 dismissed the application filed by the petitioner. It is this order that is called into question in this Writ Petition on several grounds as setout in the Memorandum of Writ Petition. - 5 - NC: 2024:KHC:47778 WP No. 5982 of 2023

3. Counsel for the respective parties urged several contentions. Counsel Sri.Prashanth.B.K., in presenting his arguments strenuously urged that though the accident occurred in the year 2009, the claim petition is filed seeking compensation and medical reimbursement in the year 2019. There is an inordinate delay in approaching the Court to claim compensation. Counsel submits that the claim statement with regard to compensation ought to have been rejected on the grounds of delay and laches. Counsel further submits that Section 4 (2A) of the Employee's Compensation Act, 1923 was inserted by Act No.45 of 2009 with effect from 18.01.2010 and the said Section is not applicable to the facts and circumstances of the present case. Counsel therefore, submits that an appropriate order may be passed. In support of his contention, counsel for the petitioner placed reliance on the following decisions.

1. THE ORIENTAL INSURANCE CO., LTD. VS. TULASIGERI AND ORS. - IN MFA NO.101797/2017 (ECA) disposed of on 01.03.2018 at Dharwad Bench. - 6 - NC: 2024:KHC:47778 WP No. 5982 of 2023

2. SRI.H.M.RAJASHEKAR VS. SRI.M.N.RAVIKIRAN - MFA NO.3668/2013 (WC) disposed of on

28.10.2016.

3. THE DIVISIONAL CONTROLLER, BMTC Vs. SRI.M.SHIVASHANKAR - MFA NO.8302/2017 (WC) disposed of on 17.11.2022.

4. BESCOM VS. SMT.KALPANA.M AND ORS. - W.P.NO.22413/2021 (L-RES) disposed of on

11.03.2024. By way of reply, counsel Sri.G.V.P.Reddy., contends that the petitioner has filed the Writ Petition against the order passed on an interlocutory application and hence, the Writ Petition is not maintainable. To substantiate the said contention, counsel placed reliance on D.P.MAHESHWARI VS. DELHI ADMINISTRATION AND OTHERS reported in (1983) 4 SCC 293. He argued by saying that the petitioner filed its statement of objections on 20.07.2019. However, an application was moved to reject the claim petition as barred by time only in the year 2021 i.e., on 17.09.2021. Counsel vehemently contended that after the accident, the respondent underwent series of operations and hence, there is no delay in filing the claim petition seeking compensation and medical reimbursement. Counsel therefore, submits that the Writ Petition may be dismissed. - 7 - NC: 2024:KHC:47778 WP No. 5982 of 2023 In support of his contention counsel for the respondent placed reliance on the decision in RAMESH B DESAI AND ORS. VS. BIPIN VADILAL MEHTA AND ORS. reported in (2006) 5 SCC

4. Heard the arguments and perused the Writ papers with care.

5. The short point that arises for consideration is whether the claim petition is maintainable.

6. The facts are sufficiently stated and they do not require reiteration. Suffice it to note that the accident occurred on the 29th day of July 2009. However, the claim petition seeking compensation and medical reimbursement was filed in the year 2019 i.e., on 30.01.2019. There is an inordinate delay in filing the claim petition. The issue revolves around the delay the claim about the compensation and medical reimbursement under the Employees Compensation Act, 1923. The application filed under Section 10 of Employee Compensation Act, 1923 R/w Section 5 of the Limitation Act, 1963 is furnished along with the Writ Petition and the same is marked as Annexure-D. Sri.Sivadas - President - Administration to the petitioner management has sworn to a declaration of - 8 - NC: 2024:KHC:47778 WP No. 5982 of 2023 facts. He has stated that notice of the accident was not given to the Management within two years. He has further stated that the claimant has not filed an application for condonation of delay. Therefore, he prayed that the claim petition may be dismissed as barred by time. A perusal of the entire writ papers reveals that the accident occurred in the year 2009 i.e., on 29.07.2009. However, the claim petition is filed in the year 2019 i.e., on

30.01.2019. There is an inordinate delay in filing the claim petition. The claim petition is not accompanied by an application to condone the delay. As per Section 10 of the Employees' Compensation Act, the claim petition ought to have been filed within two years. In the present case, the claimant has filed the claim petition after a lapse of ten years. Moreover, the notice of the accident was not given to the Management within the stipulated time as prescribed under the statute. The Trial Court has overlooked this aspect of the matter and in the absence of an application to condone the delay, has erroneously proceeded further in the matter. This is unsustainable in law. I may venture to say that the Trial Court has failed to have regard to relevant - 9 - NC: 2024:KHC:47778 WP No. 5982 of 2023 consideration and disregarded relevant matters. Hence, the Trial Court has erred in rejecting the application filed by the Management. Furthermore, respondent is claiming medical reimbursement also. A good deal of argument is canvassed on Section 4(2A) of the Employees' Compensation Act, 1923. It is significant to note that this provision was inserted by Act No.45 of 2009 with effect from 18.01.2010. Admittedly, employment accident in question occurred on 29.07.2009. Hence, the said provision is not applicable to the facts and circumstances of the present case. Counsel for the respondent contended that the captioned Writ Petition is filed as against the order passed on an interlocutory application and the same is not maintainable in view of the law laid down in D.P.MAHESHWARI case. This Court is not inclined to accept the said contention. The reason is simple. This is not an industrial dispute. The issue involved in the present case is claim petition seeking compensation and medical reimbursement on account of accident occurred during the course of employment under the Employees' Compensation Act, 1923. - 10 - NC: 2024:KHC:47778 WP No. 5982 of 2023 Counsel for the respective parties cited a number of cases, but I do not think that the law is in doubt. Each decision turns on its own facts. The present case is also tested in the light of the aforesaid decisions.

7. For the reasons stated above, the order dated

17.12.2022 is liable to be set-aside and so, it is set-aside.

8. The Writ of Certiorari is ordered. The order dated

17.12.2022 passed on I.A.No.2 by the Prl. Senior Civil Judge and CJM and Commissioner under Employee's Compensation Act, 1923 Ramanagara in E.C.A.No.1/2019 vide Annexure-F is quashed. The application in I.A.No.2 is allowed. Consequently, the claim petition in E.C.A.No.1/2019 is rejected.

9. Resultantly, the Writ Petition is allowed. Sd/- (JYOTI MULIMANI) JUDGE MRP,TKN List No.: 1 Sl No.: 6