(This MFA is filed U/s. 30(1) of workmen’s compensation Act 1923, praying to set aside the order passed by Labour Officer and Commissioner for workmen’s compensation, Haveri in W.C. No. 335/2002 and call for records of labour officer and Commissioner for Workmen’s Compensation Haveri dated 22.07.2004 and etc.)
1. This appeal is filed by appellant/insurer challenging order dated 22.07.2004 passed by Labour officer and Commissioner for Workmen’s Compensation, Haveri (for short, ‘the Tribunal’) in W.C.No. 335/2002.
2. Though this appeal is listed for admission, with the consent of learned counsel for parties, it is taken up for final disposal.
3. For the sake of convenience, parties will be referred as per their respective ranks before Tribunal.
4. Brief facts giving rise to this appeal are that in an accident that occurred on 10.09.2002, Rajappa (for short ‘employee’) claiming to be working as driver in a lorry bearing registration No. MP-09/KA-1300 belonging to respondent No. 2 herein (for short ‘employee’) sustained grievous injuries when, it met with an accident in Bharamasager. Despite taking treatment, claimant did not recover fully and sustained partial permanent physical disability. Claiming compensation for same, he filed application under Section 22 of Workmen’s Compensation Act before Commissioner of Workmen’s Compensation.
5. On service of notice, respondent No. 2/employer admitted employing applicant as driver in his lorry and that accident occurred while he was on duty. Appellant/insurer herein filed objections denying accident, relationship of employer and employee and dependency. It was contended that no application seeking for compensation was filed before insurer and that insurer was not liable to pay compensation.
6. Based on pleadings, commissioner framed issues. Thereafter, applicant examined himself as PW.1 and doctor B.S. Manjunath as PW.2 and Exhibits P1 to P12 were marked.
7. On consideration, Commissioner held that relationship of employer and employee between applicant and respondent No. 2 herein was established and held that applicant was 28 years of age and his monthly income was Rs.2,000/- per month and loss of earning capacity as 55% and assessed compensation of Rs.1,39,781/- with interest at 12% per annum from one month after date of accident till deposit. Assailing same, insurer is in appeal.
8. Sri. G.N. Raichur, learned counsel for appellant/insurer submitted that appeal by insurer is on limited ground of liability. It was submitted that Exhibit P.12/insurance policy produced by applicant before Commissioner is found to be not issued by appellant/insurer. It was submitted that Exhibit P.12 is a manipulated document and not an authenticated insurance policy and that insurance policy with reference to cover note number does not pertains to vehicle in question or insured. It was specifically submitted that owner of offending vehicle in this case has not purchased insurance policy from appellant/insurer with regard to vehicle in question for period during which accident occurred.
9. Along with appeal, appellant has filed IA No. 2/2019 seeking for permission to lead additional evidence by way of production of cover note No.022017 issued by appellant. Particulars mentioned in cover note, do not tally with vehicle number or name of owner herein. On above ground, leaned counsel seeks for allowing appeal and discharge liability of appellant/insurer.
10. Learned counsel for appellant submits that following substantial questions of law would arise for consideration.
1) Whether the Labour Officer and Commissioner for workmen compensation is justified in believing the fake cover note Ex.P12 without calling for the original and without giving any importance to the defence of the appellant?
2) Whether the labour officer and Commissioner for Workmen’s Compensation justified taking the disability as 45% by believing the evidence of the doctor Sri. B.S. Manjuanth?
11. On the other hand, Sri. Madan Mohan M. Kannur, learned counsel for respondent/claimant submits that insurer had contested matter before Tribunal. Exhibit P.12 was marked without objection by insurer and therefore, at this stage, appellant/insurer cannot be permitted to take up such contention and submit that issue of policy would be a question of fact and Commissioner had held it in favour of claimant.
12. From above submission, it is seen that main dispute between parties is regarding contract of insurance. While appellant/insurer is alleging fraud, respondent/claimant is urging acquiescence.
13. In view of above, following substantial question of law would arise for consideration before this Court.
1) Whether, IA no. 2/2019 filed by appellant for additional evidence deserves to be allowed?
2) Whether, Commissioner was justified in passing impugned order by placing reliance upon Exhibit P. 12 and holding appellant/insurer liable to pay compensation?
14. Indeed, as submitted by learned counsel for respondents/claimants, insurer has contested matter before Commissioner. No objections were urged at the time of marking of Exhibit P.12. But, contention of appellant/insurer a stated in memorandum of appeal are required to be taken note of, which are as follows:
“The Commissioner has passed the award against the appellant through his order dated 22.07.2004 even after passing of the award the appellant not stopped his correspondence with the Pune DO. And other office to get to the said certified copy of the cover note. At last with great efforts, it was revealed that the cover note No. 022017 was issued by the Nasik Office, then the appellant wrote a letter to Nasik office to send the certified copy of the cover No. 022017. Then the Nasik sent the certified copy of the cover note through their letter dated 08.06.2010. It is surprised to see that the cover note No. 022017 covering Priya Scooter No. MH-15/8128 and it is not covered the vehicle bearing No.MP-09/KA-1300. The insured name mentioned in the said cover note Sunil V. Sandhanasiur there is no mention of Sony Transport and the Vehicle No. of the involved in the accident. Therefore, after verification it was revealed that Ex.P.12 produced by the petitioner is a fake cover note and prepared to get the compensation by playing fraud on the insurance company. It is evient from the records that the owner and the petitioner in collision with each other produced a fabricated and bogus and fake cover note to get the compensation illegally although there is no insurance coverage to the vehicle MP-09/KA-1300.”
15. Said averments are reiterated in affidavit filed in support of IA No. 2/2019. Along with application, cover note issued by appellant/insurer bearing No. 022017 is produced. On perusal, cover note is not in respect of vehicle involved in accident. In view of clear assertion regarding fraud, said document would be necessary for proper disposal. Therefore, IA No.2/2019 deserves to be allowed. However, respondent/claimants are required to be given an opportunity to contest the same. Therefore, it would be appropriate for this Court to remand matter back with a direction to provide opportunity to owner and claimant to contest evidence, sought to be led.
16. It is seen that accident occurred on 10.09.2002. Claimant is deprived of compensation till now. Insurer had contested matter before Commissioner. However, matter is being remanded back to Tribunal for further evidence at instance of insurer which would cause further evidence at instance of insurer which would cause further inconvenience and hardship to claimant. Therefore, it would be appropriate to compensate claimant for inconvenience caused by imposing appropriate cost which is assessed at Rs.10,000/-. The cost to be paid to claimant/appellant on first date of appearance or to be deposited before said Court.
17. As matter is being remanded only for purpose of determination of validity of insurance coverage/liability of appellant/insurer and shall permit parties to lead evidence on said issue only and pass fresh order on this issue after giving adequate opportunity to both parties.
18. Appellant and claimant who are served and represented before this Court shall appear before Prl. Senior Civil Judge, Haveri, the jurisdictional Civil Court, now empowered to deal with claims under workm
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en’s Compensation act and Employee’s Compensation Act, on 17.01.2022 without awaiting notice. 19. As matter is of the year 2002, both parties are directed not to take unnecessary adjournments. Trial Court shall endeavour to dispose of matter as early as possible, within a period of four months after service of notice to owner. 20. In the result, I pass the following: ORDER Appeal is allowed. Amount in deposit is ordered to be transmitted to Court of Prl. Senior Civil Judge, Haveri with a direction to deposit same in fixed deposit in nay nationalized bank initially for a period of six months. In case, appellant/insurer succeeds, amount to be refunded to the appellant/insurer. In case claimant succeeds, same has to be paid to claimant with accrued interest. Parties shall appear before Prl. Senior Civil Judge, Haveri on 17.01.2022 without awaiting notice.