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2018 DIGILAW 546 (HP)

Oriental Insurance Company Limited v. Jagdish

2018-04-04

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Justice Tarlok Singh Chauhan, J —This is rather an unusual case where the Commissioner under the Workmen''s Compensation Act has proceeded to award a sum of Rs. 6,41, 619/- as compensation to the respondent-workman by taking into consideration certain documents like copy of report Ex.P-1, copy of medical certificate for physical handicapped person Ex.P-2, copy of MLC Ex.P-3, copy of discharge slip Ex.P-4 and copy of Pariwar register Ex.P-5, which were not even legally proved and had in fact only been tendered by respondent No.1. 2. Brief facts of the case are that respondent No.1 filed a claim petition before the Commissioner on the allegations that he was employed as labourer with respondent No.2 and on 3.1.2002 at 12.00 noon while doing the assigned work, i.e. crate-wise work at Manikaran, Kullu, he sustained multiple injuries due to skid of feet. He was initially treated at Kullu thereafter at Chamba where Medical Officer opined that he had incurred 80% permanent disability. 3. When put to notice, appellant filed reply, wherein it raised preliminary objections regarding maintainability, cause of action, locus standi etc. On merits, the entire claim of the claimant was disputed. 4. As observed earlier, the claim petition filed by the claimant was allowed and aggrieved thereby the Insurance Company has filed the instant appeal, which was admitted on the following substantial questions of law: 1. Whether the learned Commissioner, Workmen''s Compensation has erred in relying upon the disability certificate which has not been proved and assessed the disability without assessing the loss of earning capacity? 2. Whether there was any relationship of employer and employee existing under the Workmen''s Compensation Act? Substantial question of law No.1: 5. Admittedly, the award passed by the learned Commissioner is based upon certain exhibited documents as referred to above, but unfortunately, these documents have not been proved in accordance with law. Even though it is strenuously argued by the learned counsel for the claimant that the documents being exhibited no exception to the same can be taken. 6. However, it is more than settled that mere exhibition of a document in evidence does not amount to its proof nor mere marking of exhibit on a document dispense with its proof as the same is otherwise to be proved in accordance with law. 7. 6. However, it is more than settled that mere exhibition of a document in evidence does not amount to its proof nor mere marking of exhibit on a document dispense with its proof as the same is otherwise to be proved in accordance with law. 7. The mere fact that the document is exhibited does not follow that the Court stands precluded from examining the question on the basis of evidence led by the parties whether the document in question was exempted by the party by which it purports to be executed. This is all the more so where the execution of the document is challenged and the Court is clearly entitled to weigh the evidence led by the parties and decide whether the document was really executed by the party alleged to have executed the same. 8. As observed earlier, it is also more than settled that mere admission of document in evidence does not amount to its proof. In other words, mere marking of "exhibit or mark" on a document does not dispense with its proof, and the same is required to be proved in accordance with law. (Refer The Roman Catholic Mission Vs. State of Madras , (1966) AIR(Supreme Court) 1457; Marwari Khumhar & Others Vs. Bhagwanpuri Guru Ganeshpuri & Another , (2000) AIR(Supreme Court) 2629; R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple & Another , (2003) AIR(Supreme Court) 4548; Dayamathi Bai Vs. K.M. Shaffi , (2004) AIR(Supreme Court) 4082 and Life Insurance Corporation of India & Another Vs. Rampal Singh Bisen , (2010) 4 SCC 491 ) . 9. The mode and manner in which the learned Commissioner has conducted the proceedings is far from satisfactory. Even the mode and manner in which the counsel for the petitioner has conducted the case is also not at all satisfactory. 10. It is more than settled that a party cannot be made to suffer for the negligence of his counsel. (Ref: Rafiq vs Munshilal , (1981) AIR(Supreme Court) 1400. Equally settled is the proposition that the party cannot be made to suffer for the fault of the adjudicating authority in case it has chosen to conduct the proceedings which may not be in accordance with law. 11. (Ref: Rafiq vs Munshilal , (1981) AIR(Supreme Court) 1400. Equally settled is the proposition that the party cannot be made to suffer for the fault of the adjudicating authority in case it has chosen to conduct the proceedings which may not be in accordance with law. 11. Even though no award could have been passed by the Commissioner in favour of respondent No.1, that too, on the basis of the documents, which have not been proved on record, yet this Court cannot ignore the fact that the Workmen''s Compensation Act is a beneficial piece of legislation meant for the protection of the workmen. Therefore, taking into consideration the entirety of the facts and circumstances, I am of the firm view that even though the award passed by the learned Commissioner is not sustainable in the eyes of law, however, the claimant should yet be afforded another chance to establish his case and the other side should also be given a chance to prove its defence. 12. Therefore, while setting aside award, it is directed that the Commissioner shall offer another chance to each of the parties to lead their evidence in support of their respective claim and thereafter the Commissioner shall decide the case strictly in accordance with law as expeditiously as possible and in no event later than 31.10.2018. The parties, through their counsel, are directed to appear before the Commissioner on 23.4.2018. Substantial question of law No.2: 13. This question has rendered academic in view of the answer to question No.1 whereby the claim petition filed by the claimant has been ordered to be adjudicated afresh. 14. The petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Copy Dasti.