ORIENTAL INSURANCE CO LTD Vs. RABINDRA MANDAL

JUDGEMENT

(1.) ORIENTAL Insurance Co. Ltd. (appellant herein) has filed the present appeal challenging the judgment dated 10. 4. 2002 passed by the Commissioner for workmen's Compensation and Assistant labour Commissioner, Balasore in W. C. Case No. 91 of 1998, whereby the Com missioner for Workmen's Compensation has awarded a sum of Rs. 1,64,963 in favour of father of the deceased workman and the appellant insurance company has been directed to pay the awarded amount within 30 days, failing which 12 per cent simple interest will be recovered from the date of filing of claim case, i. e. , 12. 9. 1998 till realization. Learned counsel on behalf of insurance company submits that claimant-respondent no. 1 filed a case for compensation on the ground that his son Gajendra Mandal died on 9. 7. 1998 while working as a labourer in a truck bearing registration No. OR 09-A 1695 belonging to the owner, respondent no. 2, when he came in contact with live electric wire while loading the vehicle. Respondent No. 2 admitted the claim of respondent No. 1 in the compensation proceedings and present appellant insurance company raised objection on the following grounds:

(2.) LEARNED counsel for the appellant submitted that the appellant had engaged an independent investigator to ascertain the facts in the present case who after investigation into the case concluded that the deceased had died due to electrocution when he came in contact with live electric wire while chasing a monkey in the jute field. Relying upon such a report of the so-called 'independent investigating agency' the insurance company filed a petition on 3. 4. 2002 before the Workmen's Compensation commissioner seeking permission to adduce evidence to prove the falsity of the case but the said petition was rejected by the court below. Learned counsel for the appellant submitted that since the present case is a case of fraud and such fraud has been detected in course of investigation by a private agency, the award having been based on falsehood and fraud, is liable to be set aside and in this respect learned counsel for appellant placed reliance upon the judgment in the case of S. P. Chengalvaraya naidu v. Jagannath, 1994 (1) OLR (SC) 201 and in the case of United India insurance Co. Ltd. v. Rajendra Singh, 2000 ACJ 1032 (SC ).

(3.) LEARNED counsel for the appellant relied upon section 105, Civil Procedure code and advanced his argument that this court in course of hearing of the appeal, has every power to rectify the mistake and error of jurisdiction committed by the lower court during trial of the case and even though no specific challenge has been made to the illegal order of rejection of the petition dated 3. 4. 2002 for adducing evidence, the same can be interfered with in course of the present appeal.