Through Mr. Bhupesh Narula, Advocate v. M/S KELVIN AUTO INDUSTRIES & ANR

1. Whether the reporters of local papers may be allowed to see the judgment? No

2. To be referred to the reporter or not? No

3. Whether the judgment should be reported in the ‘Digest’? No REKHA SHARMA, J. (ORAL) C.M. Nos.10051/2008 & 10052/2008 These are two applications; one for restoration of the appeal which was dismissed for non-prosecution on January 04, 2008 and, the other for condonation of delay in filing the application for restoration. For the reasons stated in the applications, the same are allowed and the delay in filing the application for restoration is condoned. The appeal consequently is restored to its original number. The applications are disposed of. FAO No.161/1989 This appeal has been preferred against the order of an ESI Judge dated February 09, 1989 whereby an earlier order passed 2010:DHC:1996 by the same Court dated August 22, 1987 was modified. Learned counsel for the appellant has handed over to me today in the Court the earlier order passed by the ESI Court dated August 22, 1987. As per the said order, the dispute between the parties was settled and consequently, the appellant herein was to pay to the legal representatives of the deceased 1/3rd of the statutory liability of the compensation and further 1/3rd was to be paid by the respondent M/s Kelvin Auto Industries, with whom the deceased was employed. It is not disputed by learned counsels for the parties that an appeal against the order dated August 22, 1987 was preferred in this Court and by an order dated August 23, 2002 the same was dismissed holding that it was without any merit. Insofar as the impugned order dated February 09, 1989 is concerned, the ESI Court directed the appellant herein to refund the 1/3rd amount which it was to pay to the legal representatives of the deceased, as soon as its liability towards the dependents of the deceased came to an end. It is submitted by the learned counsel for the appellant that there was no justification in modifying the order dated August 22, 1987 and directing the appellant herein to refund the 1/3rd amount to the respondent which it was to pay to the legal representatives of the deceased, once the liability had already been settled vide order dated August 22, 1987. Having heard the counsels for the parties, I am of the view that it is the order dated August 23, 2002 passed by this Court which has to prevail and by virtue of this order, the appeal preferred by the ESIC was dismissed. In other words, the order passed by the ESI Court dated August 22, 1987 was upheld. In this view of the matter, the appellant and respondent No.1 are liable to discharge their liabilities in terms of order dated August 22, 1987. The modified order dated February 09, 1989 which has been impugned in this appeal lost its relevance consequent to the order of this Court dated August 23, 2002. The appeal is disposed of as noticed above.

REKHA SHARMA, J. APRIL 12, 2010 ka