Allahabad High Court
E.S.I.Corp. Kanpur vs Jagdish Prasad on 23 March, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 103 of 2001 Appellant :- E.S.I.Corp. Kanpur Respondent :- Jagdish Prasad Counsel for Appellant :- A.K.Srivastava Counsel for Respondent :- M.Jain,Mritunjaya Hon'ble J.J. Munir,J.
1. This is an appeal by the Employees State Insurance Corporation from a judgment and order of Mr. Rangnath Pandey, the then Judge, Employees Insurance Court, Kanpur Nagar, allowing the respondent's appeal and accepting his claim of 10% permanent disability.
2. Jagdish Prasad, the sole respondent to this appeal, was employed as a Piecer with the U.P. State Spinning Mills, Raibareli. On 13.12.1995 at about 09:00 p.m., Jagdish Prasad (hereinafter referred to as "the employee") sustained an injury to his left eye during the course of employment. Upon an application made for reference of the employee's case to the Medical Board to assess the loss of earning capacity due to the accident, the employee's case was referred to the Medical Board. The employee was examined by the Medical Board, which was of opinion that the loss of vision was not related to the employment injury and, therefore, did not award anything for the loss of earning capacity. The decision of the Medical Board, that was rendered on 10.10.1996 as aforesaid, was appealed to the E.S.I. Court by the employee under Section 54A(2)(ii) of the Employees Insurance State Insurance Act, 1948 (for short "the Act"). The appeal was registered on the file of the Judge, Employees Insurance Court, Kanpur on 10.12.1996 as Appeal No. 50 of 1996. The appeal came up for determination before the Judge, Employees Insurance Court on 30.11.2000. It was allowed and the decision of the Medical Board dated 10.10.1996 was set aside, granting benefit of 10% permanent disability to the employee for sustaining a scheduled injury.
3. Aggrieved, the Employees State Insurance Corporation has appealed this decision.
4. This appeal was admitted to hearing on the following substantial questions of law:
(1) A mere photocopy of some prescription slip showing the treatment of the respondent is not enough to substantiate the claim of permanent disablement or permanent loss of earning capacity?
(2) The burden of proof lay upon the respondent-employee to prove the existence of permanent disability arising out of the accident or at least some evidence which would prove that that he has been placed at a job drawing lesser benefits or that he is not being given the periodical increments which his colleagues are getting and in absence of any such evidence on record, whether the court below has erred in passing the impugned judgment/order?
5. Heard Mr. Vipul Kumar, learned counsel for the appellant. No one appears on behalf of the respondent.
6. So far as the first substantial question of law is concerned, it must be remarked that it has not been disputed for a fact that the employee has sustained employment injury to his left eye on 13.12.1995. Now, as to the proof of the consequential loss, the Medical Board, that was convened on 10.10.1996, have rendered opinion to the effect that the loss of vision found to be 6/60 in the left eye is not on account of the employment injury.
7. It is submitted by the learned Counsel for the appellant that before the E.S.I. Court, the employee has relied upon photostat copies of medical certificates and treatment papers to establish that the employment injury had led a permanent dimming of vision in the left eye. The originals of those certificates and treatment papers have not been filed. It is pointed out that in view of the provisions of Rule 47 of the Uttar Pradesh Employees Insurance Court Rules, 1982 (for short "the Rules"), the provisions of the Indian Evidence Act, 1872 (for short "the Act of 1872") would apply to proceedings before the E.S.I. Court 'in respect of matters relating to procedure or admission of evidence, for which no specific provision is made in the Rules.' He submits, therefore, that the provisions of Sections 64 and 65 of the Act of 1872 would apply, forbidding the E.S.I Court from looking into photostat copies of documents relied upon by the employee in support of his case, unless foundation was laid for the reception of secondary evidence.
8. It must be remarked here that a perusal of the record does not show that there was any objection raised before the E.S.I. Court about the admissibility of these documents. No objection has been recorded by the E.S.I. Court, or one that is endorsed on the photostat copies of the documents, that have been taken into consideration by the E.S.I. Court.
9. This Court is of opinion that an objection about admissibility of secondary evidence must be taken before the Court of first instance, where the secondary evidence is filed without foundation. If that objection is not taken before the Court, where the evidence is filed on behalf of a party, it cannot be later on urged in appeal. For this principle, reference may be made to the decision of the Privy Council in Padman v. Hanwanta, 1915 (17) BomLR 609, where in the context of an objection as to the admissibility of a certified copy of the will, the original not being filed before the Trial Court nor any objection being taken to it before that Court, it was held:
"11. The defendants have now appealed to His Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first Court against the copy obtained from the Registrar's office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention."
10. The question fell for consideration before a Division Bench of the Andhra Pradesh High Court in Ajjarapu Subbarao vs Pulla Venkata Rama Rao and others, AIR 1964 AP 53. The point was raised and decided in very clear terms by their Lordships thus:
"15. Now, one legal aspect deserves to be pointed out at some length. The learned single Judge has, in respect of the majority of documents mentioned above, stated that they are inadmissible on account of the provisions of Section 65 of the Evidence Act. This view does not appear to us to be tenable. The rule in Section 65 excluding secondary evidence is not so rigid as to be enforced even if no objection was taken at the trial by the party against whom the secondary evidence was offered. When a party has waived proof of circumstances justifying the giving of secondary evidence, he cannot raise the objection in appeal, vide Bacharbhai Mohanlal, AIR 1956 Bom 196. A document can be treated as duly admitted where, its admission without being proved is not objected to by the party affected, vide Latchayya Subudhi v. Seetharamayya, 84 Ind Cas 921 : (AIR 1925 Mad 257). Where the objection to be taken h not that the document is in itself inadmissible, but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before it is marked as exhibit and admitted. A party cannot lie by until the case comes in appeal. A strictly formal proof might have been forthcoming had it been insisted on at the trial. The question of proof of a document is a question of procedure and can be waived. On the other hand, questions of relevancy of documents are questions of law and can be raised at the appellate stage as well. There was thus no justification for the learned Judge to have rejected the documents on the mere ground that they are certified copies and not the originals when, as a matter of fact, no such objection was ever taken in the trial Court or even in the memorandum of appeal before the learned Judge."
11. To similar effect is the holding of the Full Bench of the Andhra Pradesh High Court in The Land Acquisition Officer, Vijayawada Thermal Station v. Nutalapati Venkata Rao, AIR 1991 AP 31, where it is held:
"14. Summarising the position, we hold that any objection as to the mode of proof of a document has to be taken at the stage of marking of a document at the trial under O. 13, R. 4, C.P.C. If no objection is raised at that stage, it cannot be permitted to be raised at any stage subsequently in the same Court or in the Court of appeal. If, for example, the original sale deed or a certified copy thereof is marked as an exhibit without objection, it cannot be contended later that it cannot be looked into as none connected with it has been called as a witness. Point No. I is held accordingly."
12. It was further on remarked in The Land Acquisition Officer, Vijayawada Thermal Station v. Nutalapati Venkata Rao (supra):
"30. Summarising the position, we hold firstly that if secondary evidence is allowed to be marked for one party without objection at the trial, no objection can be permitted to be raised by the opposite party at any later stage in the same Court or in appeal that conditions foradducing secondary evidence have not been made out initially. ............"
13. The question was most wholesomely considered by their Lordships of the Supreme Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another, (2003) 8 SCC 752, thus:
"17. The other document is the rent note executed by Defendant 2 in favour of the plaintiff. Here also the photocopy of the rent note was produced. Defendant 2 when in the witness box was confronted with this document and he admitted to have executed this document in favour of the plaintiff and also admitted the existence of his signature on the document. It is nobody's case that the original rent note was not admissible in evidence. However, secondary evidence was allowed to be adduced without any objection and even in the absence of a foundation for admitting secondary evidence having been laid by the plaintiff.
18. The abovesaid facts have been stated by us in somewhat such detail as would have been otherwise unnecessary, only for the purpose of demonstrating that the objection raised by the defendant-appellant before the High Court related not to the admissibility of the documentary evidence but to the mode and method of proof thereof.
19. Order 13 Rule 4 CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the court, which endorsement signed or initialled by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the court to the person from whose custody it was produced.
20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.
23. Since documents Exts. A-30 and A-34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photocopies, the originals of which were not produced."
There is a reference in this decision of their Lordships to the holding of the Privy Council in Padman v. Hanwanta (supra).
14. The decision of the Supreme Court was followed by this Court in Sudha Agarwal v. VII Additional District Judge,2006 (4) ALJ 545.
15. In view of this position of the law, there is no doubt that unless an objection about the admissibility of evidence is taken in the Court of first instance, where the evidence is led, it cannot be raised in appeal for the first time.
16. A copy of the certificate from the eye specialist, that is signed by the Medical Superintendent, Employees State Insurance Hospital, Sarojini Nagar, Lucknow certifies with a reasoned opinion that the dimmed vision is due to the injury in the left eye. There was no objection raised to this report, wherein a photostat copy was filed before the E.S.I. Court, that the original ought to be filed. The appellant ought to have taken it, whereafter the employee could have produced the original. In the absence of an objection taken by the appellant, the specialist's report opining the dimming of vision as one caused due to injury, cannot be held to be inadmissible. The treatment papers, xerox copies whereof have been filed, relate to the E.S.I. Hospital, Lucknow and are contemporaneous in time to the injury. If the appellants had any objection to the photostat copy of the treatment card, they ought to have objected, which they did not, as the record would show. There is a further report by an eye specialist from the Lala Lajpat Rai Medical College and Hospital, Kanpur dated 15.07.1996, which too opines the loss of vision as one on account of injury. Here also, a photostat copy of the treatment card from the Lala Lajpat Rai Hospital has been filed before the E.S.I. Court. About this document also, no objection was raised as to admissibility before the Judge. There being no such objection, as already remarked on behalf of the appellant before the E.S.I. Court, the objection as to admissibility cannot raised before this Court.
17. At this stage, the decision of a learned Single Judge of this Court in Employees State Insurance Corporation v. Sarfuddin, 2005 (4) AWC 3289 All, where, in very similar circumstances, reliance on photostat copies by the E.S.I. Court in an appeal from the Medical Board's decision was not favoured by this Court on the strength of Rule 47 of the Rules, has been pressed in aid of the appellant's case. In Employees State Insurance Corporation v. Sarfuddin (supra), it was held:
"14. In the present case no oral evidence of any of the parties was recorded. According to Rule 47 of the Rules, 1952 "in respect of matters relating to procedure or admission of evidence for which no specific provision is made in this rule, the provisions of the Code of Civil Procedure 1908 (V of 1908) including the Rules made thereunder and the Indian Evidence Act, 1872 (1 of 1872) shall so far as may be, apply to proceedings under the Act." There is no evidentiary value of photostat document unless the original is produced and proved by the author of the same in the manner laid down by the Indian Evidence Act. But in the instant case, neither the original was produced/summoned nor the doctor (ENT expert) was examined."
18. It must be remarked in this connection that in the decision of this Court in Employees State Insurance Corporation v. Sarfuddin, the point was neither raised nor considered, though involved, whether the failure to raise an objection before the Court of first instance about the admissibility of secondary evidence would disentitle the party from raising it and questioning its admissibility in appeal. The entire principle, that objection as to admissibility about the mode of proof must be taken before the Court of first instance, was not at all considered by the learned Judge rendering the decision in Employees State Insurance Corporation v. Sarfuddin.
19. This issue was never raised, argued or considered by the learned Judge in Employee State Insurance Corporation v. Sarfuddin. Thus, the said point or issue passed sub silentio and the decision in the aforesaid case is not a binding precedent on the question involved and decided here. The said decision was concerned only with the principle that the Act of 1872 applies to proceedings before the E.S.I. Court and, therefore, primary evidence has to be led and secondary evidence is not admissible, except in accordance with the provisions of the Act of 1872. It is not a binding precedent at all on the principle about the effect of non-raising of the plea of admissibility of secondary evidence in the Court of first instance and the consequent bar of raising it for the first time in appeal before this Court. The said decision does not at all, therefore, come to the appellant's aid here.
20. The other limb of the substantial question of law is centered around the issue whether on the basis of some prescription slips showing treatment of the employee, a claim about permanent disablement or permanent loss of earning capacity can be inferred. Indeed, the evidence here shows that it is just not prescription slips that the employee has relied upon to substantiate his claim. It includes a certificate from the eye specialist that is signed by Medical Superintendent, E.S.I. Hospital, Sarojini Nagar, Lucknow, which certifies with a reasoned opinion that the dimmed vision suffered by the employee is on account of the employment injury in the left eye. There is a further report by an eye specialist from Lala Lajpat Rai Medical College and Hospital dated 15.07.1996, which opines in clear terms that loss of vision suffered by the employee is on account of an employment injury. This part of the present substantial question overlaps with the subject matter of Substantial Question of Law No. 2 and would be answered in greater detail while dealing with the second question. It is for this reason that the present question was urged by the appellant more with regard to the issue of secondary evidence, the other part being spared for consideration, while addressing on the Substantial Question of Law No. 2. Suffice it to say here that it is not on the basis of prescription slips alone that inference about permanent disablement has been drawn in favour of the employee.
21. Substantial Question of Law No. (1) is, accordingly, decided in terms that a photostat copy of the prescription slips showing treatment of the employee, if not raised about their admissibility to substantiate the claim of permanent disablement before the E.S.I. Court, cannot be permitted to be raised before this Court on ground that primary evidence ought to have been filed. Also, the employee's claim to permanent disability is not based on mere prescription slips, but on better and relevant evidence.
22. So far as the second substantial question of law is concerned, the employee has produced not only just prescription slips about his treatment, but also medical certificates and treatment papers to establish that the employment injury had led to a permanent dimming of vision in the left eye. There is a copy of the certificate from the eye specialist that is signed by the Medical Superintendent, Employees State Insurance Hospital, Sarojini Nagar, Lucknow, which certifies with a reasoned opinion that dimmed vision is due to the employment injury in the left eye. The treatment too was undergone by the employee at the E.S.I. Hospital, Lucknow and is contemporaneous in time to the injury. There is a further report by an eye specialist from the Lala Lajpat Rai Medical College and Hospital, Kanpur dated 15.07.1996, which opines in clear terms that loss of vision is one on account of the injury. Now, from all these documents filed before the E.S.I. Court, a well reasoned inference has been drawn about a permanent damage to vision in the left eye, which is a scheduled injury under the Act. The said finding is a pure finding of fact, based on consideration of relevant evidence. Nothing has been shown to this Court by the learned Counsel for the appellant as to how that finding is beset by a flagrant and manifest error of law.
23. So far as the question of burden of proof is concerned, with the employee adducing so much of evidence from which the E.S.I. Court has drawn a reasonable conclusion about the existence of a scheduled injury, it cannot be said that the burden has not been discharged by the employee.
24. Insofar as the loss of benefits in consequence of the injury is concerned, the injury being a scheduled injury under Serial No. 32-A of Schedule-I appended to the Act, the percentage loss of earning capacity is provided by the Statute itself, not requiring any further evidence to establish it.
25. Substantial Question of Law No. (2) is, accordingly, answered in the negative in the aforesaid terms.
26. In the result, the appeal fails and stands dismissed.
27. There shall, however, be no order as to costs.
Order Date :- March the 23rd, 2022 Brijesh Maurya/Anoop/I. Batabyal (J.J. Munir, J.)