Bajaj Allianz General Assurance ... vs Shailender Singh @ Sher Bahadur & ...
2014 Latest Caselaw 1889 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+              FAO 25/2014 & CM 873/2014 (stay), CM 875/2014 (delay)

%                                                          15th April, 2014
      BAJAJ ALLIANZ GENERAL
      ASSURANCE CO LTD.                        .... Appellant
                    Through Mr. Sameer Nandwani, Advocate

                          versus

     SHAILENDER SINGH @ SHER BAHADUR & ANR. ... Respondents

Through Ms. Pratima N. Chauhan, Advocate for respondent No. 1.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM 875/2014 (delay)

For the reasons stated in the application, the delay in filing the appeal

is condoned.

The application is accordingly disposed of.

FAO 25/2014 & CM 873/2014 (stay)

1. In this first appeal which is filed under Section 30 of the Workmen's

Compensation Act, 1923 (hereinafter "the Act") challenging the order dated

15.7.2013 passed by the Commissioner, Employee's Compensation, two

points are argued on behalf of the appellant/insurance company. First is that

once in the main order of grant of compensation, and which is dated

9.5.2012, medical expenses were not granted, the dependents/claimants

thereafter cannot file a subsequent application for grant of medical expenses

because such a claim would be barred by principle of constructive res

judicata as also general principles of res judicata. The second argument is

with respect to the fact that penalty cannot be claimed in proceedings after

the main order of compensation was passed in this case on 9.5.2012.

2. So far as the first argument is concerned, the same has merit because

no doubt the Employee's Compensation Act does provide for grant of

medical expenses in terms of Section 4(2A) of the Act, however, this has to

be part of the main claim proceedings which are initiated under Section 22

of the Act. Once proceedings under Section 22 of the Act stand concluded,

and in which no medical expenses are claimed or granted under Section

4(2A) of the Act there cannot be initiated fresh proceedings, which are

effectively again under Section 22 for claiming of medical expenses as

allowed by Section 4(2A). Such a claim would be barred by principle of

constructive res judicata as also general principles of res judicata. No doubt

counsel for the respondent no. 1 is justified in arguing that the provisions of

CPC do not apply to proceedings before the Commissioner, but, the general

principles of res judicata apply to all judicial or quasi judicial proceedings.

Accordingly, the first argument urged on behalf of the appellant is accepted

and the impugned order dated 15.7.2013 to the extent that the same grants

medical expenses of Rs. 2,13,303/- is set aside while upholding the other

part of the impugned order dated 15.7.2013.

3(i) So far as the second argument is concerned that penalty proceedings

cannot take place after passing of the main compensation order under

Section 22 of the Act on 9.5.2012, the argument is misconceived because

now it is settled law in terms of the judgments of the Supreme Court that it is

only after passing of the main compensation order under Section 22 of the

Act, that thereafter only a show cause notice has to be issued for payment of

interest and penalty under Section 4A of the Act. The object of issuing of

this show cause notice is to enable the employer or the insurance company to

give existence of sufficient reasons as to why penalty and/or interest should

not be awarded.

(ii) Therefore, the contention of the counsel for the appellant is

misconceived that proceedings under Section 4A of the Act for grant of

penalty cannot take place as a consequence of passing of the main order of

compensation and which was passed in this case on 9.5.2012.

(iii) I may note that the aspect of issuing of the show cause notice before

awarding of interest and penalty is a subject matter of the proviso of sub-

Section (3) of Section 4A of the Act.

4. In view of the above, the appeal is partly allowed by modifying the

impugned order dated 9.5.2012 by setting aside of Award of compensation

of medical expenses by the Commissioner of Rs. 2,13,303/-. Rest of the

impugned order will stand. Parties are left to bear their own costs.

VALMIKI J. MEHTA, J APRIL 15, 2014 godara