DIVISIONAL MANAGER Vs. SUBASH CHANDRA SWAIN

JUDGEMENT

(1.) THIS appeal has been filed by Oriental Insurance Co. Ltd. impugning a judgment of the learned single judge in Misc. Appeal No. 713 of 1996. The learned single Judge was pleased to hold that the learned counsel for the appellant only urged that the Commissioner for workmen's Compensation gave a direction to the claimant to appear before the Chief district Medical Officer, Cuttack for his examination and assessment of disability and same having not been done the entire award was liable to be set aside. Learned single Judge, however, did not accept the said contention on behalf of the insurance company in view of the finding by the commissioner on issue No. 3 at page 6 of the Commissioner's judgment. Quoting the finding, of the Commissioner on the said issue, the learned single Judge held that the grievance raised by the learned counsel for the insurance company cannot be sustained. The learned single Judge also came to the conclusion that in any event the said contention raised by the learned counsel for the insurance company is not one of law to be canvassed under section 30 of the Workmen's Compensation Act. Saying so, the learned single Judge dismissed the miscellaneous appeal.

(2.) WHILE this appeal was heard before this court, the learned counsel for the insurance company, appellant, has urged a totally new point, namely, that there is no nexus between the employment and the injuries sustained by the workman and in the absence of any nexus between the two, the injuries which have allegedly been sustained by the workman cannot be said to have been sustained out of and in the course of his employment and as such the award given by the Commissioner cannot be sustained.

(3.) WE have looked into the records and the grounds of appeal. From the grounds of appeal which were filed before the learned judge of the first court, we do not find that aforesaid point was ever taken as a ground by the insurance company. Therefore, a totally new ground has been taken by the learned counsel for the insurance company in this Letters Patent Appeal. It is well settled that normally a new ground cannot be taken for the first time in appeal. This has been decided by this court in the case of new India Assurance Co. Ltd. v. Raj kishore Nayak, 1995 Lab IC 2750 (see para 4 ).