[1] By this appeal, the appellant herein original applicant has challenged the order dated 21.04.2005 passed by the learned Commissioner for Workmen Compensation, Surat in Non Fatal Application No.41 of 1998 by which the learned Commissioner has rejected the application of the appellant on the ground that appellant has failed to prove that appellant was workmen of present respondent nos.1 and
2. [2] This Court has gone through the order dated 21.04.2005 passed by the Commissioner for Workmen Compensation. In opinion of this Court, even if the Commissioner for Workmen Compensation comes to the conclusion that application is required to be dismissed then it is incumbent upon the Commissioner for Workmen Compensation to determine the compensation if applicant is entitled to get in light of income and age of the applicant and considering relevant factors and as per the provisions of Workmen Compensation Act. In the present case, Commissioner for Workmen Compensation has not carried out said exercise and so in opinion of this Court, matter is required to be remanded back to the Court of Commissioner for Workmen Compensation, Surat for fresh disposal.
[3] It is submitted by learned advocate for the appellant that if the matter is remanded back for fresh disposal, then, the appellant will withdraw the said application with a liberty to file Motor Accident Claim Petition.
[4] In view of above, without deciding the appeal on merits, order dated 21.04.2005 passed by the learned Commissioner for Workmen Compensation, Surat in Non Fatal Application No.41 of 1998 is hereby quashed and set aside. The matter is remanded back to the Court of Commissioner for Workmen Compensation, Surat for fresh disposal. The first appeal is partly allowed.
[5] It is submitted by learned advocate for the appellant that appellant will file withdrawal purshis before the Commissioner for Workmen Compensation with a permission to file Motor Accident Claim Petition before the Competent Court. If such purshis is filed by the appellant before the Commissioner for Workmen Compensation, then, the Commissioner will pass necessary orders and if think fit give permission to file Motor Accident Claim Petition in accordance with law. If Motor Accident Claim Petition will be filed by the appellant before the Competent Court, then, while deciding the said claim petition, order dated 21.04.2005 passed by the Commissioner for Workmen Compensation as well as order passed by this Court today will not come in any way.
(M.D.SHAH, J.) satish Page 2 of 2