NEW INDIA ASSURANCE CO LTD Vs. SHANKAR

JUDGEMENT

(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 Workmen's Compensation 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 in 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 18.12.2009 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 he never appeared before the W.C. Commissioner in all these cases nor did he give 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 upto 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.) AS such, I am of the opinion that, in all these 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 - 2007 who tendered his evidence by way of an affidavit and was cross -examined by the Counsel for the Insurance Company. As this statement on 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 the Criminal Procedure Code, 1973 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