$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision:25th May, 2017
+ FAO 534/2016 and CM Appln.42805/2016
UNITED INDIA INSURANCE CO. LTD. ...... Appellant
Through: Mr. Pradeep Gaur, Advocate.
versus
SUSHILA DEVI & ANR. ..... Respondents
Through: Mr.J.P. Sikka, Mr. M.K.
Rathee, Advocates for
respondent no.1.
Mr. Rhishabh Jetley, Advocate
for Mr. Sanjoy Ghose, ASC for
GNCTD.
Ms.Deepali Dwivedi, Advocate
as amicus curiae.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
J U D G M E N T (ORAL)
1. The appellant has challenged the impugned order of the Commissioner, Employees' Compensation whereby compensation of Rs.4,23,580/- has been awarded.
2. On 11th August, 2005, Pappu @ Vinod was driving Tanker No.MH04 CA 3697 which met with an accident with truck bearing No.MP05 RD 2859 near Chikhal-Ohol Guest House near, Km.stone no.298/6, Mumbai Agra Road. The driver, Pappu suffered fatal injuries due to the accident. The police registered FIR No.146/05 under Sections 279/304A/337/427 IPC at P.S. Malegaon Taluka, FAO 534/2016 Page 1 of 8 District Nasik.
3. The deceased, Pappu was survived by his widow, two minor children and parents who file the application for compensation before the Commissioner, Employees' Compensation claiming that the deceased was driving the offending vehicle during the course of his employment with respondent no.2. Respondent no.2 contested the claim application on the ground that the deceased was not employed by him as a driver. The appellant admitted the insurance policy but contested the claim on the ground that respondent no.2 has denied the relationship of the employment.
4. Learned counsel for the appellant urged at the time of the hearing that the appellant is not liable since respondent no.2 has denied the relationship of employment. It is submitted that the claimants have not placed on record any document to show the relationship of employment between the deceased and respondent no.2. It is further submitted that no driving licence was produced by respondent no.2. Without prejudice it is submitted that in case the appellant is held liable, the appellant be granted recovery rights on the ground that the deceased was not holding any driving licence at the time of the accident.
5. The record of the Commissioner, Employees' Compensation has been perused. The FIR No.146/05 is on record. The complaint dated 11th August, 2005 of the police records states that the deceased was driving the offending vehicle at the time of the accident and the accident was so severe that the deceased body was stuck inside the cabin of the tanker. The record of the Commissioner, Employees' FAO 534/2016 Page 2 of 8 Compensation contains the copy of the complaint by the Sub- Inspector of Malegaon Police Station which is reproduced hereunder:
"Dt. 11.8.2005 I, Salim Abdul Raje, Police Sub Inspector of Malegaon Taluka Police Station give this official complaint on behalf of government.
I state that I am appointed at this police station for last 1 ½ years. On dt. 10.08.2005 I was on mobile patrolling duty from time 21.00 till 6.30 in the morning on dt. 11.8.2005 while we were going towards Chikhal Ohal road from Vandana Petrol Pump on Mumbai- Agra road, we were told by one autoriksha driver that there had occurred one accident near Chikhal Ohal rest house on Mumbai-Agra road involving are goods truck and tanker, and traffic was blocked. We immediately reached accident site in our mobile vehicle and saw that the tanker no. MH/04/KA 3697 involved in the accident is was standing and in its cabin the driver was trapped who was seemed to be severally injured and dead. We immediately contacted Malegaon Police Control Room and asked them to send the crane on highway. We also informed Malegaon police Station about the accident. Then with the help of crane we moved the goods truck No. MP09/KD 2859 to the side of the road and also moved tanker No. MH04/KA-3697 to one side. We came to know that name of the deceased driver as Pappu Kamkaran Yadav, age 28, R/o Sultanpur (U.P.) with the help of gathered people. We took the deceased in the ambulance to the Wadia Hospital in Malegaon and carried the inquest. After this we again came back to the accident site and made spot panchnama of the accident site in the presence of two panchas. The said site is near Km. Stone No.298/6 near Chikhal- Ohol rest house on Mumbari-Agra Road. The said road is 25 feet wide, made of Tar and hardened. At the both side of this road, lies rought road which is 5 feet wide. The goods truck No. MP/09/KD-2859 is standing on the tar road facing towards Dhule. Glass on its driver side cabin is broken and its pieces are spread on the road. Rightside head lamp of the truck is broken and front side of driver's side cabin FAO 534/2016 Page 3 of 8 is seen pressed inside. Front portion is broken and glass pieces as thrown on the road. The panchnama included all these contents. We took statements of two witnesses (1) Chandrabhan Punvasi Yadav, age 26, Occ- Driver R/o Khasade Parvalipur, Post Barvali Tq. Sultanpur (U.P.) (2) Dhashrath Ramesh Bhigwal age 20, Ocu-cleaner R/o Libai Tq. Rajpur Distt. Badauni (M.P.). After making inquiry in the offence registered as motor vehicle accident regd. No.124/05, I state that the driver of goods truck No.MP09/KD 2859 namely Karansing full name not known, drove his truck on Mumbai-Agra road coming from Dhule with high speed and ignoring traffic on the road dashed head on with the tanker No.MH-04/KA 3697 coming from Malegaon side and caused death of its driver Pappu Ramkaran Yadav, age 28 R/o Sultanpur (Uttar Pradesh) and also caused leg injury to the second driver Chandrabhan Punvasi Yadav, age 26, R/o Khasade, Parvatipur Distt. & Tuluka- Sultanpur. He also caused neck injury to the clearner on his truck Deepak Babulal Pawar, age 22 R/o Gandhwad, Distt. Dhar (M.P.0. Both vehicles involved in the accident have suffered the damage of Rs.10,0000/-. Therefore I give this complaint against him for the offence committed U/s. 279, 304
(a), 337, 427 IPC and U/s. 134(6), 177, 184 under Motor Vehicles Act as he fled from the spot without informing to police about the accident.
Sd/-
Complainant 11.08.2005"
6. Respondent no.2 has denied the relationship of employment with the deceased. However, respondent no.2 has not disputed that the deceased was actually driving the offending vehicle at the time of the accident. Respondent no.2 has also not explained how the deceased was driving the offending vehicle. Admittedly, respondent no.2 has not made any complaint to any authority that the deceased was unauthorizedly driving the offending vehicle at the time of the FAO 534/2016 Page 4 of 8 accident. Respondent no.2 has not produced the driving licence of the deceased. This Court is of the view that the deceased was under the employment of respondent no.2 at the time of the accident and respondent no.2 falsely denied the relationship to avoid the liability as respondent no.2 had not produced driving licence of the deceased. In that view of the matter, the appellant is liable to pay the compensation to the legal representatives of the deceased. With respect to the appellant's claim for recovery rights against respondent no.2, the Commissioner, Employees' Compensation ought to have considered this aspect.
7. The impugned award awarding compensation to the legal representatives of the deceased Pappu is upheld. However, the appellant's claim for recovery rights against respondent no.2 is remanded back to the Commissioner, Employees' Compensation. The appellant as well as respondent no.2 shall appear before the Commissioner, Employees' Compensation on 10th July, 2017 when the Commissioner, Employees' Compensation shall consider the appellant's claim for recovery rights against respondent no.2 and pass a fresh order after hearing the appellant and respondent No.2 on the basis of evidence on record. The appeal is disposed of on the above terms. Pending application is disposed of.
8. The appellant has deposited Rs.9,83,123/- with the Commissioner, Employees' Compensation on 26th September, 2016 out of which Rs.50,000/- has been released to respondent no.1 in terms of order dated 31st March, 2017 and the balance amount is lying with the Commissioner, Employees' Compensation.
FAO 534/2016 Page 5 of 89. Sushila Devi (widow), Ram Karan (father) and Kamla Devi (mother) of the deceased are present in Court along with the passbooks of their savings bank accounts as well as passbooks of the minor children. The particulars of their savings bank accounts are as under:
(i) Sushila Devi, A/c No.6522010110001629 with Vijaya Bank, Jakhni Kalan, Lambhua, U.P., IFSC Code:VIJB0006522, MICR Code : 212029209.
(ii) Ram Karan, A/c No.47560100007542, Bank of Baroda, Tatamuraini, U.P., IFSC Code:BARBOTATSUL, MICR Code : 228012080.
(iii) Kamla, A/c No.47568100002925, Bank of Baroda, Tatamuraini, U.P., IFSC Code : BARBOTATSUL, MICR Code : 228012080.
(iv) Akash (minor), A/c No.47568100007273, Bank of Baroda, Tatamuraini, U.P., IFSC Code:BARBOTATSUL, MICR Code: 228012080.
(v) Baby Kusum Yadav (minor), A/c No.47560100007584, Bank of Baroda, Tatamuraini, U.P., IFSC Code:BARBOTATSUL, MICR Code: 228012080.
10. The Commissioner, Employees' Compensation is directed to disburse the balance award amount to the legal representatives of the deceased by instructing the bank as under:
(i) Rs.2,60,000/- be kept in 65 FDRs of Rs.4,000/- each in the name of Sushila Devi for the period 1 month to 65 months FAO 534/2016 Page 6 of 8 respectively, with cumulative interest.
(ii) Rs.1,60,000/- be kept in 40 FDRs of Rs.4,000/- each in the name of Ram Karan for the period 1 month to 40 months respectively, with cumulative interest.
(iii) Rs.1,60,000/- be kept in 40 FDRs of Rs.4,000/- each in the name of Kamla Devi for the period 1 month to 40 months respectively, with cumulative interest.
(iv) Rs.1,40,000 be kept in FDR in the name of Akash (minor) till he attains the majority with cumulative interest. Upon attaining the majority, the bank shall release the interest accrued on the FDR to Akash by transferring the same to his savings bank account mentioned in para 9(iv) and the principal amount of Rs.1,40,000 lakh be kept in 28 FDRs of Rs.5,000/- each for the period 1 month to 28 months respectively, in the name of Akash with cumulative interest.
(v) Rs.1,40,000 be kept in FDR in the name of Kusum Yadav (minor) till she attains the majority with cumulative interest. Upon attaining the majority, the bank shall release the interest accrued on the FDR to Kusum Yadav by transferring the same to her savings bank account mentioned in para 9(v) and the principal amount of Rs.1,40,000 lakh be kept in 28 FDRs of Rs.5,000/- each for the period 1 month to 28 months respectively, in the name of Kusum Yadav with cumulative interest.
11. The balance amount, after keeping Rs.8,60,000/- in FDRs, be released to Sushila Devi, Ram Karan and Kamla Devi in equal shares by transferring the same to the above mentioned savings bank accounts.
FAO 534/2016 Page 7 of 812. The maturity amounts of the FDRs along with interest shall be credited in the above mentioned savings bank accounts of the beneficiaries.
13. All the original FDRs shall be retained by the concerned Bank. However, the statement containing FDR number, FDR amount, date of maturity and the maturity amount be furnished to claimants.
14. No cheque book or debit card be issued to the claimants/beneficiaries without permission of this Court. However, in case, the debit card and/or cheque book have already been issued, the Vijaya Bank, Jakhni Kalan, Lambhua, U.P. and Bank of Baroda, Tatamuraini, U.P. shall cancel the debit card and/or cheque book.
15. No loan or advance or pre-mature discharge shall be permitted without the permission of this Court.
16. Claimants/beneficiaries are at liberty to approach this Court for release of further amount in case of any financial exigency.
17. This Court appreciates the assurance rendered by Ms. Deepali Dwivedi, learned amicus curiae.
18. Copy of this judgment be given dasti to counsel for the parties under the signature of the Court Master.
MAY 25, 2017 J.R. MIDHA, J.
dk
FAO 534/2016 Page 8 of 8