Oriental Insurance Co. Ltd vs Anil Kumar & Another

Satyen Vaidya, J

The instant appeal was admitted on the following substantial questions of law on, 17.12.2014:-

“i) Whether the insured vehicle which was a JCB Machine, having seating capacity of one only (Driver) and the same was also insured as such and premium was charged/paid accordingly, the payment of injury claim with respect to Helper (injured/claimant) though there was no coverage ordered to be paid by the appellant/insurer, is legally sustainable in the eyes of law?

ii) Whether as per Employees Compensation Act, the claimant was entitled to get the compensation in terms of Section 4 (1) Explanation-II, Section 4 (1) (c)(i) read with Schedule 1 (Part-II) Item No. 25 and Schedule IV (factor 218.47, age being 24 years) which works out to be Rs. 1,04,866/- only. If so, whether amount awarded to the claimant vide impugned award is liable to be suitably slashed?”

Heard.

During the course of hearing on above substantial questions of law the merits of CMP 5558 of 2020 filed by respondent No.1/applicant under order 47 rule 27 of the Code of Civil Procedure were also considered. The respondent No.1/applicant has made a prayer to prove disability certificate dated 18.2.2022, issued by the Chief Medical Officer, Mandi, District Mandi, H.P. in his favour, wherein the disability of respondent No.1/applicant has been assessed at 60% in both eyes as permanent in nature.

Respondent No.1/applicant has been awarded a sum of Rs. 5,27,600/- with interest at the rate of 6% per annum as compensation under the Employees Compensation Act by learned Commissioner. The above said compensation amount has been assessed by taking the disability of respondent No.1/applicant at 40% in respect of one eye. In the application for additional evidence, respondent No.1/applicant has averred that earlier, the disability of the applicant was assessed by the medical board at 40%, however, during the pendency of this appeal, his disability has again been reassessed at 60% permanent in both eyes. It is submitted on behalf of the applicant that the disability certificate now sought to be produced and proved on record by the applicant shall enable this Court to determine the real controversy between the parties. Since the disability certificate has been issued only on 18.2.2022, the applicant could not produce the same at an earlier occasion.

The prayer of the applicant for additional evidence has been contested by the appellant/non-applicant. It has been submitted that admission of additional evidence at such a belated stage is not justified. The accident had taken place in the year 2005 and the disability certificate now sought to be proved will cause prejudice to the appellant/non-applicant. It will amount to introduction of an alien issue in the matter. It is further submitted that the applicant/respondent No.1 has not filed any cross-appeal/cross-objections. Therefore, he could not be allowed to produce additional evidence by way of disability certificate. As per appellant/non-applicant, the injury suffered by the applicant, as per his own admission, was in the right eye, hence the disability in respect of left eye now sought to be proved has no relevance to the matter in issue.

Having given my thoughtful consideration to the rival submissions of the parties, I am of the considered view that the application needs to be allowed as the disability certificate dated 18.2.2022, if proved on record, will provide this Court with additional relevant material to decide the appeal more effectively.

Appellant/non-applicant has addressed this Court on substantial question No.(ii), as reproduced above which necessarily involves the question as to the quantum of compensation to which, the applicant/respondent No.1 will finally be entitled. In this view of the matter, the production of proposed additional evidence cannot be said to be irrelevant. The doubts expressed on behalf of appellant/ non-applicant regarding the enhancement of the disability of the applicant which at one stage was assessed at 40% and its advent to the eye other than the one which had received injury shall be open for clarification, when the respondent No.1/applicant produces his evidence to prove the disability certificate dated 18.2.2022.

Indisputably, the applicant had no opportunity before the learned Commissioner to prove the disability to the extent of 60%, as the assessment to that effect has been made only recently and has been certified vide disability certificate dated 18.2.2022.

Keeping in view the entirety of the facts and circumstances, the application is allowed. The matter is remanded back to the learned Commissioner Employees Compensation (Senior Civil Judge) Mandi for the limited purpose to allow the applicant/respondent No.1 to lead additional evidence in order to prove disability certificate dated 18.2.2022, issued by the Chief Medical Officer, Mandi, H.P. Needless to say, that in case the appellant/ non-applicant seeks opportunity to rebut the additional evidence produced by the applicant/respondent No.1, it shall also be afforded reasonable opportunity. The entire exercise will be completed by learned Commissioner within two months from the date the parties appear before him and thereafter will remit the records to this Court for further disposal of appeal.

The application is accordingly disposed of. The parties are directed to appear before the learned Commissioner on 31.8.2023. Records of learned Commissioner be sent back forthwith alongwith a copy of this order.

List the appeal for hearing on 8.11.2023.