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2010 DIGILAW 253 (KAR)

New India Assurance v. Shankar

2010-02-26

V.JAGANNATHAN

body2010
Judgment :- Rs.1,72,998/- & Rs.1,34,549/- respectively with interest @ 12% p.a. These MFAs filed U/S 30(1) of WC Act against the Judgment dated 26.9.2007 passed in WCA.Nos.187, 188, 189, 190, 196 & 197/2006 respectively. On the file of the Labour Officer and Commissioner for Workmen’s compensation, Chamarajanagar, awarding a compensation of Rs.1,12,309/-, Rs.1,14,366/-, Rs,1,52,489/-, Rs.1,90,611/-, Rs.1,72,998/- & Rs.1,34,549/- respectively with interest @ 12% p.a. These MFAs filed U/s 30(1) of WC Act against the Judgment dated 26.9.2007 passed in WCA Nos.187, 188, 189, 190, 196 & 197/2006 respectively. On the file of the Labour Officer and Commissioner for Workmen’s compensation, Chamarajanagar, awarding a compensation of Rs.1,12,309/-, Rs.1,14,366/-, Rs.1,52,489/-, Rs.1,90,611/-, Rs.1,72,998/-, & Rs.1,34,549/- respectively with interest @ 12% p.a. These MFAs filed U/s 30(1) of WC Act against the Judgment dated 26.9.2007 passed in WCA Nos.187, 188, 189, 190, 196 & 197/2006 respectively. On the file of the Labour Officer and Commissioner for Workmen’s compensation, Chamarajanagar, Rs.1,90,611/-, Rs.1,72,998/-, & Rs.1,34,549/- respectively with interest @ 12% p.a. These MFAs filed U/s 30(1) of WC Act against the Judgment dated 26.9.2007 passed in WCA Nos.187, 188, 189, 190, 196 & 197/2006 respectively. On the file of the Labour Officer and Commissioner for Workmen’s compensation, Charmarajanagar, Rs.1,90,611/-, Rs.1,72,998/-, & Rs.1,34,549/- respectively with interest @ 12% p.a. These MFAs filed U/s 30(1) of WC Act against the Judgment dated 26.9.2007 passed in WCA Nos.187, 188, 189, 190, 196 & 197/2006 respectively. On the file of the Labour Officer and Commissioner for Workmen’s compensation, Chamarajanagar, Rs.1,90,611/-, Rs.1,72,998/-, & Rs.1,34,549/- respectively with interest @ 12% p.a. These MFAs filed U/s 30(1) of WC Act against the Judgment dated 26.9.2007 passed in WCA Nos. 187, 188, 189, 190, 196 & 197/2006 respectively. On the file of the Labour Officer and Commissioner for Workmen’s compensation, Chamarajanagar, Rs.1,90,611/-, Rs.1,72,998/-, & Rs.1,34,549/- respectively with interest @ 12% p.a.) 1. Heard learned counsel Sri. O. Mahesh for the appellant in all these cases and also learned counsel Sri. R. Mallikarjuna who appeared on behalf of Dr.Abdul Ravoof. 2. 187, 188, 189, 190, 196 & 197/2006 respectively. On the file of the Labour Officer and Commissioner for Workmen’s compensation, Chamarajanagar, Rs.1,90,611/-, Rs.1,72,998/-, & Rs.1,34,549/- respectively with interest @ 12% p.a.) 1. Heard learned counsel Sri. O. Mahesh for the appellant in all these cases and also learned counsel Sri. R. Mallikarjuna who appeared on behalf of Dr.Abdul Ravoof. 2. The order passed by the W.C. Commissioner awarding compensation to the respective respondents claimants herein is called in question in these appeals by the Insurance Company and one of the major grounds urged to all these appeals is that the Doctor who is said to have given evidence before the Commissioner and on the basis of whose evidence the Commissioner has assessed the loss of earning capacity percentage, did not in fact appear and give evidence. This was brought to the attention of this court and accordingly this court by its order dated 18.12.09 directed the very doctor himself to file an affidavit before this court as to whether the said doctor had appeared before the W.C. Commissioner or not. Pursuant to the said direction, the doctor concerned appeared before this court through his counsel and filed an affidavit. In the affidavit it is stated on oath by the doctor that the never appeared before the W.C. Commissioner in all these cases nor he gave any evidence, but on the other hand, the doctor was busy on 18.7.2007 in the hospital as eight operations were listed on the said date and the doctor conducted three operations which went up to 3.00 p.m. Apart from the said statement, the doctor has further stated that the signature found in the evidence said to have been put by him, was not his signature. 3. In view of the aforesaid statement on affidavit given by the doctor, this court also directed the doctor to appear before this court and file an affidavit and on going through the affidavit filed by the doctor concerned, I am satisfied that there is enough merit in the submission made by the appellant’s counsel that fraud seems to have been taken place before the W.C. Commissioner in all these cases and Dr.Abdul Ravoof who never gave evidence before the Commissioner in all these cases has been shown as having given evidence before the Commissioner in respect of the assessment of disability. 4. 4. As such, I am of the opinion that, in all thee cases not only the common order passed by the W.C. Commissioner has to be set aside, but at the same time the Commissioner has to be directed to proceed against all concerned who are responsible for stating before the Commissioner that Dr.Abdul Ravoof did give evidence before the Commissioner. The Commissioner is directed to proceed against the advocate who appeared for the claimants and who has stated on oath before this court that the doctor was examined at 5.00 p.m. on 18.7.07 who tendered his evidence by way of an affidavit and was cross examined by the counsel for the Insurance Company. As this statement in oath by the counsel is in clear contradiction of the very statement on oath made by the doctor himself before this court in the affidavit that is filed, the Commissioner is directed to proceed against all the persons responsible for misleading the Commissioner and the Commissioner therefore shall take into account the provisions of Section 340 of Cr.P.C. and proceed in accordance with the said section so that the persons who are guilty of misrepresenting before the Commissioner about the evidence of Dr.Abdul Ravoof, are brought to book. 5. The Commissioner is directed to lodge necessary complaint with the jurisdictional police for examining all the material including the affidavit that is filed by the doctor before this court. In view of the doctor filing the affidavit before this court that he never gave evidence before the W.C. Commissioner in all these cases, these appeals are allowed by setting aside the impugned order as fraud will vitiate the entire proceedings. The amount in deposit be refunded to the appellant Insurance Company.