BAJAJ ALLIANZ GENERAL ASSURANCE CO LTD. v. SHAILENDER SINGH @ SHER BAHADUR & ANR.

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 2014:DHC:1974 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