Madras High Court

M/S. New India Assurance Co. Ltd vs Sasikannan S/O. Arumugam on 30 April, 2024

                                                                           C.M.A.(MD) No.1265 of 2013
                                                                          and C.M.P. (MD) No.2 of 2013

                                  IN THE MADURAI BENCH OF MADRAS HIGH COURT

                                     RESERVED ON         :         27.03.2024
                                     PRONOUNCED ON :               30.04.2024

                                                       CORAM:

                                    THE HONOURABLE MR. JUSTICE P.DHANABAL

                                            C.M.A. (MD) No.1265 of 2013

                                                             and

                                             C.M.P. Nos.1 and 2 of 2013

                     M/s. New India Assurance Co. Ltd.,
                     No.490-A, 1st Floor, Avinasi Road,
                     Peelamedu, Coimbatore.                       ... Appellant / 2nd Respondent
                                                [common in both C.M.A. (MD) No.1265 of 2013
                                                               and C.M.P. (MD) No.2 of 2013]

                                                             Vs.
                     1. Sasikannan S/o. Arumugam                   ... Respondent / Petitioner
                                              [common in both C.M.A. (MD) No.1265 of 2013
                                                             and C.M.P. (MD) No.2 of 2013]

                     2. S. Kathirvel, DCE
                     The Managing Director
                     KSV Cotton Mills (P) Ltd.,
                     Karur Distric.                               ... Respondent / 1st Respondent
                                                  [common in both C.M.A. (MD) No.1265 of 2013
                                                                 and C.M.P. (MD) No.2 of 2013]




                     1/13

https://www.mhc.tn.gov.in/judis
                                                                          C.M.A.(MD) No.1265 of 2013
                                                                         and C.M.P. (MD) No.2 of 2013

                     PRAYER in C.M.A. (MD) 1265 of 2013: Civil Miscellaneous Appeal has

                     been filed under Section 30 of the Workmen Compensation Act, 1923

                     against the order dated 30.11.2009 passed in W.C. No.154 of 2006 on the

                     file of Workmen Compensation Commissioner (Deputy Commissioner of

                     Labour), Dindigul.



                     PRAYER in C.M.P. No.2 of 2013: Civil Miscellaneous petition has been

                     filed under Order XLIV Rule 27 of Code of Civil Procedure praying to

                     receive the true copy of the Policy No.720205/48/04/00159 issued to M/s.

                     K.V.S.V. Cotton Mill Private Ltd., by M/s. New India Assurance Co., Ltd.

                     as an additional document in the above appeal.

                                       For Petitioner         : Mr. K. Sasi Prabha for
                                                                    Mr. G. Prabhu Rajadurai


                                       For Respondents        : No appearance.


                                                   COMMON JUDGMENT

The Civil Miscellaneous Appeal has been preferred as against the

order passed in W.C. No.154 of 2006 before the Workmen Compensation

Commissioner (Deputy Commissioner of Labour), Dindigul, wherein the 1st

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respondent herein has filed a petition for compensation due to the injury

sustained by him during the course of employment under the 2nd respondent

herein.

2. The Deputy Commissioner of Labour, Dindigul awarded

compensation for a sum of Rs.79,693/- and direct the 2 nd respondent to pay

the above said amount. Aggrieved by the said order, the present appeal has

been preferred by the 2nd respondent, M/s. New India Assurance Co. Ltd.,

3. The brief facts of the case before the Tribunal are as follows:-

The petitioner has filed a petition stating that the petitioner was

working under the 1st respondent as workman for the past 6 months and his

monthly salary is Rs.3,000/-. While so, on 14.12.2004 at about 2.30 a.m.,

when he was working in the said Mill, while removing waste cotton from

the machine, he met with an accident and his Right hand index finger and

middle fingers were damaged. After the accident, the same was intimated to

the respondent and the petitioner was immediately taken to hospital for

treatment and he was admitted as in-patient from 14.12.2004 to 20.12.2004.

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During the course of treatment, his right hand middle finder and index finer

were removed. After the accident, the petitioner was evaded by the

respondent from giving work and he was permanently disabled. The

accident took place, while the petitioner was out of and in the course of

employment. Therefore, he sought for compensation.

4. The brief averments of the counter filed by the 2nd respondent

are as follows:-

The petition is false and not maintainable either in law and on facts.

The petitioner workman is put to strict proof of his relationship with the 1st

respondent, as employer and employee and also he is put to strict proof that

the accident occurred out of and in the course of employment. The demand

and request for compensation to the 1st respondent was not cared for by the

1st respondent. The petitioner has not filed relevant documents to prove the

case. Therefore, the petition is liable to be dismissed.

5. Before the Deputy Commissioner of Labour, Dindigul, on the side

of petitioner, PW1 and PW2 were examined and Ex.P.1 to Ex.P.6 were

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marked. On the side respondent, no oral or documentary evidences were

adduced. After analysing the documents and evidence adduced by the

petitioner, the Deputy Commissioner of Labour, Dindigul has awarded a

sum of Rs.79,693/- as compensation and directed the 2nd respondent to pay

the amount, since there is a insurance coverage. Aggrieved by the said

order, the 2nd respondent Insurance company has preferred this appeal

claiming that the policy is covered only for Rs.25,000/-, but the Tribunal

has awarded a sum of Rs.79,693/-. Therefore, the award passed by the

Deputy Commissioner of Labour, Dindigul is liable to be set aside.

6. During the pendency of appeal, the appellant has filed a petition in

C.M.P. No.2 of 2013 seeking to receive the copy of the policy as additional

document and the same is to be marked as appellant's side document.

7. According to the appellant, the said document has not been

marked before the learned Deputy Commissioner of Labour, Dindigul and

in the interest of justice, it is necessary to receive and mark the said

document as additional document. The respondents have opposed to

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receive and mark the said document, since it was deliberately failed to

produce the same before the learned Deputy Commissioner of Labour,

Dindigul.

8. The accident was occurred in the year 2004 and the petition was

filed in the year 2006 and the insurance company, now produced the

document after 7 years. Therefore, the civil miscellaneous petition is liable

to be dismissed.

9. The learned counsel appearing for the appellant would contend

that the 2nd respondent Mill had taken a policy of 'Group Personal Accident

Insurance Policy'. As per the terms and conditions of the policy, the

appellant is liable to pay only Rs.25,000/-, but the Tribunal has not

considered and the appellant has also omitted to produce the copy of the

policy and thereby, they filed a petition under Order XLIV Rule 27 of Code

of Civil Procedure to receive the copy of the policy stating that since the

policy is very essential to decide the case, the same is to be received as

additional document and as per the policy, the appellant is only liable to pay

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Rs.25,000/-. Therefore, the order passed by the learned Deputy

Commissioner of Labour is liable to be set aside.

10. The learned counsel appearing for the respondents would contend

that there is no dispute that the 1st respondent workman was working under

the 2nd respondent's employment and the policy was in force on the date of

accident. The 2nd respondent has not denied the employer – employee

relationship with the 1st respondent and the monthly salary of the 1st

respondent. The 2nd respondent, being a Insurance Company, cannot deny

the liability, since there was coverage of policy on the date of accident. The

appellant insurance company have not produced the said policy before the

learned Deputy Commissioner of Labour, Dindigul and further, specifically

they have not pleaded in the pleadings about the coverage limit and thereby,

after 7 years, they cannot produce the said document and they have not even

stated any reasons in the petition for non-production of the same before the

Deputy Commissioner of Labour. Therefore, the order passed by the

learned Deputy Commissioner of Labour is in order and there is no any

substantial question of law involved in this case. Therefore, the Civil

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Miscellaneous Appeal is liable to be dismissed.

11. Heard both sides'. Perused all the materials available on record.

12. On hearing both sides and perusing upon the materials, the points

for determination in this appeal are:-

12(i) Whether the Civil Miscellaneous Petition in C.M.P. No.2

of 2013 is liable to be allowed or not.

12(ii) Whether any substantial question of law involved in this

appeal.

12(iii) Whether the Civil Miscellaneous Appeal is to be

allowed or not.

13. Point No.1

The 1st respondent herein, in this appeal, had filed a petition for

compensation before the Deputy Commissioner of Labour, Dindigul for the

injury sustained by him during the course of employment while he was

working as workman in the 2nd respondent's Mill. The Deputy

Commissioner of Labour awarded compensation of Rs.79,693/-. As against

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the said order, the present appeal has been filed by the 2nd respondent

therein.

13.1. During the pendency of appeal, the appellant filed a petition to

receive and mark the true copy of policy as an additional document under

Order XLIV Rule 27 of Code of Civil Procedure. The document sought to

be marked is copy of the Insurance Policy. According to the petitioner, as

per the said policy, the coverage limit is only Rs.25,000/-. But the said

document has not been produced before the learned Deputy Commissioner

of Labour, Dindigul. In the affidavit filed in support of the petition, there is

no reasons stated as to why the said policy has not been produced before the

Deputy Commissioner of Labour, Dindigul at the earliest point of time, but

simply stated that it has not brought to the knowledge of the Deputy

Commissioner of Labour / Tribunal and they have also not stated any

reasons for delay. Therefore, the petition filed by the petitioner is not in

accordance with the provisions under Order XLIV Rule 27 of Code of Civil

Procedure. The petitioner / appellant after lapse of 7 years, has produced

the document without any reasons. Further the petitioner / appellant has not

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even pleaded in the counter filed before the Tribunal as about the limitation

for coverage. Therefore, the said document cannot be received and marked

as additional evidence at this stage. Therefore, the petition is liable to be

dismissed. Thus point no.1 is answered accordingly.

13.2. Point No.2 & 3:

In this case, there is no dispute that the 1st respondent / petitioner was

working under the 2nd respondent's Mill on the date of accident and the 2nd

respondent also filed counter before the Tribunal stating that they have not

denied the accident and the relationship between the 1st respondent /

petitioner and the 2nd respondent / 1st respondent as employer and

employee. They have stated that the petitioner has to prove the relationship.

In this context, the 1st respondent / petitioner was examined as PW1 and he

has categorically deposed about the employment and the relationship

between the 1st respondent / petitioner and the 2nd respondent / 1st

respondent as employer and employee. Therefore, relationship of employer

and employee has been proved by the 1st respondent / petitioner before the

Tribunal.

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13.3. The present appeal is filed by the 2nd respondent therein/

insurance company stating that the coverage of policy is only for Rs.

25,000/- as per the policy taken by the 2nd respondent / 1st respondent. But

they have not produced any document before the Tribunal and now only,

they have filed the policy document at belated stage that too without

assigning any reasons. Therefore, the contention of the petitioner /

appellant that coverage is only for Rs.25,000/- is not acceptable one. The

appellant company have not pleaded in the counter about the limitation of

the policy coverage. Therefore, at belated stage, they cannot raise such plea

and this Court also in the previous point decided that the petition to receive

documents as additional evidence cannot be allowed.

14. Moreover, this Court also, on careful perusal of the document and

the grounds of appeal there is no any substantial question of law is involved

in this case. Therefore, the order passed by the learned Deputy