Management Of Durga Plastic vs Govt Of Nct Of Delhi & Ors
2012 Latest Caselaw 5174 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of Decision: 31.08.2012


+              FAO 276/2011

MANAGEMENT OF DURGA PLASTIC               ..... Appellant
               Through : Mr. Susheel Sharma, Adv.

                     versus

GOVT OF NCT OF DELHI & ORS                  ..... Respondents
                 Through : Mr. R.K. Nain, Adv. for R-3


CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL


VEENA BIRBAL, J.

1. The present appeal is filed by the appellant under Section 30 of the Employee's Compensation Act, 1923 (hereinafter referred to as 'the Act') against the impugned order dated 03.03.2011 passed by the Commissioner, Employee's Compensation by which respondent no. 3 has been awarded compensation of Rs. 1,08,864/- along with interest @ 12% p.a. from the date of accident till realization.

2. Sh. Sunil Kumar Verma i.e. respondent no. 3 had filed a claim petition before the Commissioner under the Act alleging therein that he was employed with the appellant as a 'Helper'. He was not given any appointment letter, attendance card, pay slip, leave book, etc. He was

working as a 'helper' on a salary of Rs. 2,700/- p.m. On 06.01.2003, he was forced to work on a moulding machine. While working he had met with an accident wherein he sustained injury on his thumb as a result of which the thumb of his left hand was cut. After the accident, he became unconscious and was taken to Jiwan Hospital by the appellant/management for the treatment. The matter was not reported to the Police. The respondent no.3/claimant had alleged that he was 20 years of age at the time of accident. Due to the accident he has become disabled by 30% and the disability is permanent. On 28.01.2003, he had lodged a complaint before Assistant Labour Commissioner, Nimri Colony. The Labour Inspector had visited the site and during investigation, the management had admitted that the thumb of respondent no. 3 was chopped while working in the factory. Thereafter he had served a demand notice on 08.02.2003 but the same was not considered by the appellant. He had prayed for compensation as well as medical expenses and had also claimed interest on the compensation.

3. The appellant/management initially did not appear before the Commissioner and was proceeded ex parte. Subsequently, the appellant moved an application for setting aside the ex parte proceedings and their request was allowed. Thereafter the appellant/management had filed the written statement wherein the appellant had admitted that the claimant i.e. respondent no. 3 was their employee. It was stated that respondent no. 3 was employed with it as a 'helper' w.e.f. December, 2002 on monthly salary of Rs. 2700/-. The allegations that he had met with an accident in the factory premises on 06.01.2003 was denied. As per appellant/management, the claimant remained absent from 03.01.2003 to 07.01.2003 and he had visited

the factory on 08.01.2003 with an injured thumb and informed that he had met with an accident. The appellant/management provided him Rs. 4,000- 5,000/- for treatment. According to the appellant/management, a false claim had been filed by him to extract money. The appellant/management had denied that any accident took place in their factory as was alleged as such the claimant was not entitled for any amount from them.

4. On the completion of pleadings, issues were framed.

In support of his case, respondent no. 3/claimant filed his affidavit Ex. WW1/A and also filed documents Ex. WW1/1 to WW1/11 i.e. copies of medical, X-ray, complaint to Labour Commissioner, complaint to police, demand notice, postal receipts along with A.D. card. He had also filed disability certificate Ex. WW1/11 assessing his disability less than 40% by LNJP Hospital.

5. On behalf of the appellant, Sh. Chaturbhuj, proprietor had appeared and tendered his evidence by way of affidavit Ex.1/A. The appellant/management also produced certain documents like appointment letter Ex. MW1/1, attendance record Ex. MW1/2, letters Ex. MW1/3 and 1/4 calling upon the respondent no. 3/claimant to join the duty, Ex. MW1/5 and MW1/6 postal receipts in respect of the same.

6. After hearing the arguments, the Commissioner held that the respondent no. 3/claimant had sustained injuries out of and in the course of employment with the appellant/management and had lost 30% of his earning

capacity. Considering the age, wage, disability, the compensation of Rs.1,08,864/- was awarded to respondent no.3/claimant along with interest @ 12% p.a. after one month from the date of accident till realization. Aggrieved with the same, the present appeal is filed.

7. The learned counsel for the appellant/management has contended that the respondent no. 3/claimant did not sustain any injury during the course of employment. It is contended that he was absent from duty since 3.01.2003 without information and remained absent till 7.1.2003 and had sustained injuries during his absence. It is contended that the appellant/management had placed before the Commissioner the attendance record Ex.MW1/1, Ex MW1/2 to substantiate its stand but the same was not considered. It is contended that the finding of the Commissioner that the respondent no. 3/claimant had sustained injuries during the course of employment is a perverse finding. It is further contended that the disability certificate Ex. WW1/11 issued by LNJP Hospital was obtained after one year of the alleged injury as such the same is not a reliable piece of evidence and could not have been taken into consideration. It is contended that the finding of the Tribunal is perverse as such impugned order is liable to be set aside.

8. On the other hand, the stand of the respondent no. 3/claimant is that no substantial question of law arises in the appeal as such appeal is not maintainable. It is contended that there is ample evidence on record to establish that the appellant had sustained injuries during the course of employment.

9. I have considered the submissions made and have gone through the record.

10. It is admitted by the appellant that the respondent no.3/claimant was its employee. However, as per the appellant, respondent no.3/claimant had worked with them from December, 2002 to 08.02.2003. However, he had not reported for duty from 3.1.2003 to 7.1.2003. In support of their stand, they are relying upon the attendance register Ex.MW1/1 which is for the month of January, 2003. The other attendance sheet is for February, 2003 which is Ex.PW1/2. Perusal of both these attendance sheets show that these documents do not bear the signature of officer of the management nor it bears the signature of the employee. Further, the person who has maintained the record has also not been produced before the Commissioner. The proprietor RW/1 in evidence had admitted that there are no signatures of the Labour Department on the aforesaid register. Further, he has stated that they do not maintain any record of the wages of the workers. In these circumstances, the attendance register Ex.MW1/1 produced to substantiate its stand that he did not report for duty on 06.01.2003 becomes doubtful and has been rightly rejected by the Labour Commissioner. Apart from the attendance register, no other evidence is led by the management to substantiate its stand. Further, the factory is at Mangolpuri and the treatment papers Ex. WW1/1 to WW 1/2 are dated 6.1.2003. The same are issued by Jiwan Hospital at Mangol Puri. The same supports the stand of respondent no.3/claimant that he had sustained injuries at work place, which is at Mangol Puri.

11. The evidence led by respondent no. 3/claimant before the Commissioner is also perused. The respondent no. 3/claimant had filed an affidavit Ex.WW1/A wherein he had clearly stated that he was employed with the appellant/management and on 06.01.2003 he received injuries during the course of employment while working on a moulding machine. He had stated that he sustained injury on the thumb as a result of which tip of the thumb was removed. He had also filed documents Ex.WW1/2 of Jiwan Hospital, Ex.WW1/1 dated 06.01.2003 giving the details of injury sustained by him. He had also placed on record X-ray report and X-ray film of injured thumb, both dated 06.01.2003 i.e. Ex.WW1/2 and WW1/3 respectively. He had also proved on record letter dated 03.07.2003 i.e. Ex.WW1/4 showing that the Inspector from the Labour Department had visited the office of the management on 21.02.2003 along with him. He has also placed on record other documents i.e. letter Ex.WW1/15 written by the respondent no.3/claimant to the Labour Commissioner, complaint to police, demand notice Ex. 1/7, postal receipts and also proved on record disability certificate Ex.WW1/11 dated 23.07.2004 issued by LNJP Hospital wherein it is stated that the respondent no. 3 is suffering from Amputee left thumb at proximal Phalanx and the disability shown is less than 40% (permanent). The material deposition of respondent no. 3/claimant is not demolished in cross- examination.

12. The claim petition was filed on 21.02.2003 whereas the disability certificate Ex.WW1/11 is taken from the Government hospital on 25.06.2004. Even if the same is taken after one year of the injury, the same does not dilute the case of the respondent in any manner, in as much as there

are other treatment papers i.e. documents Ex. WW1/1 to WW1/2 on record to show that the respondent no.3/ claimant had sustained thumb injury on 06.01.2003.

In these circumstances, no illegality or perversity is seen in the impugned order which calls for interference of this court.

Accordingly, the appeal is dismissed.

VEENA BIRBAL, J AUGUST 31, 2012 kks