Writ petition 2440/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2440/2010 Latur Agro Warehouse, through its Proprietor, Sita w/o Shantilal Saboo, Age : 40 years, Occu. Business, R/o Mamdapur Pati, Nanded Road, Latur. ...Petitioner. Versus 1 Sow. Kajal w/o Subhash Kale, Age : 31 years, Occu. Labourer, R/o Bhatkhed Tq. & Dist. Latur. 2 Latur Solvent Private Ltd., its Proprietor Shantilal s/o Kishanlal Saboo, Age : 45 years, Occu. Business, R/o Mamdapur Pati, Nanded Road, Latur. 3 Dnyanoba s/o Yashwant Mhaske, Age:Major, Occ. Labour Contractor, R/o Sidhartha Society, Behind Yashwant College, Galli No.13, Latur. ...Respondents. Mr. Swapnil S. Rathi, Advocate for the petitioner. Respondent No.1 absent though served. Respondents No.2 and 3 absent, not served (formal parties.) CORAM : A.V. NIRGUDE, JJ. Date : 11th March, 2011. ORAL JUDGMENT (Per A.V. NIRGUDE, J.): 1. Rule. Rule returnable forthwith. By consent of parties, writ petition is taken for final hearing and dispose of, as follows. 2 This writ petition is filed against the order below Ex. C-10 Writ petition 2440/2010 2 in Workmen’s Compensation Application No. 52/2008 pending before the Commissioner under Workmen’s Compensation Act (Judge, Labour Court, Latur). The respondent No.1 in 2008 filed the above mentioned Workmen’s compensation application against the petitioner and others. This application seeking compensation arose from an accident which took place on 23/01/2008 in which the respondent No. 1/claimant who was admittedly working as workman, sustained some injuries. The respondent No.1 obtained disability certificate from certain Orthopaedic medical practitioner and is placing reliance on the same in support of her claim. The petitioner is opposing her claim, which is mainly dependent on the opinion of the Orthopaedic medical practitioner. He is trying to say and would try to prove that the expert's opinion is erroneous. He submitted, an application to the trial Court for obtaining a second opinion on the extent of permanent disability allegedly suffered by respondent No.1. The application was dismissed mainly on the ground that there is no provision to obtain second opinion in such a case. He should have realised that the respondent No.1/claimant had placed reliance on an expert’s opinion, whereas the petitioner/opponent intended to challenge the correctness of the same. The petitioner/opponent on one hand, can challenge the correctness of the opinion by cross examining the expert who would appear before the Court to support his opinion to prove his certificate and support his opinion. On the other hand, he is also entitled to examine another expert on the pertinent question who would also be subjected to cross examination. In a way, the question of fact is to what extent respondent No.1/ claimant had suffered permanent Writ petition 2440/2010 3 disability, is sought to be decided through opinion of two experts. Section 45 of the Indian Evidence Act, 1872 is the relevant provision which reads as under. 45. Opinions of experts: When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specifically skilled in such foreign law, science or art, (or in questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts. 3 This provision certainly allows the Court to allow parties to bring on record different opinions, on the question of fact. In view of such provision, there is always a possibility of conflicting opinions of experts coming before the Court. But of course the Court would be free to use its discretion in choosing one of the opinion as relevant. In view of this, the rule is made absolute in terms of following order. ORDER a) The impugned order dated 02/01/2010 stands set aside. b) The learned judge of the trial Court shall direct the respondent No.1 to appear before the Orthopaedic Medical Practitioner Dr. Potdar, Latur. The Court shall further allow the petitioner to engage Dr. Potdar for clinical/radiological examination of the respondent No.1 and to give his opinion on the permanent disability Writ petition 2440/2010 4 suffered by the respondent No.1 due to accident in question. The learned judge shall allow the petitioner to examine Dr. Potdar if needed as the witness before deciding the application finally. c) The amount of Rs.10,000/- (Rs. Ten thousand) deposited by the petitioner as per order of this Court dated 20/04/2010 shall be transferred to the trial Court and the same shall be handed over to the respondent No.1 / claimant. [A.V. NIRGUDE, J.] ts k/2011/march11/wp2440.10/ok