Delhi High Court
National Insurance Co Ltd. vs Sharda & Ors. on 12 February, 2013
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 760/2012
% Judgment reserved on: 31st January, 2013
Judgment delivered on: 12th February, 2013
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Mohan Babu Aggarwal, Adv.
versus
SHARDA & ORS. ..... Respondents
Through: Mrs. Pooja Goel, Adv. for R1 to
R4.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Pursuant to order dated 20.07.2012, Ms. Pooja Goel, ld. Counsel
has made her appearance on behalf of the respondent nos. 1 to 4 and
submitted that there is compensation amount granted in favour of the
respondent no. 4 and the said respondent had expired after passing of
the award. Therefore, she prayed that respondent no. 4 may be
deleted from the array of the parties.
2. I ordered accordingly.
3. Instant appeal has been directed against the impugned award
dated 29.03.2012 only on the ground that respondents / claimants could
not prove the services of the deceased as he was working permanently
with his employer. Firstly, ld. Tribunal has gone wrong in establishing
his salary as per the statement and record produced by PW3 Sh. Vinod
Kumar, employer of the deceased. Secondly, ld. Tribunal has granted
50% increase of the future prospects whereas in case of Sarla Verma
v. DTC (2009) 6 SCC 121 it has been decided that future prospects can
be granted only if the deceased was working on a permanent basis.
4. Counsel appearing on behalf of the appellant has argued that
PW3 in his examination-in-chief has stated that deceased Bhagirath
was his permanent employee whereas in his cross-examination he
deposed that he used to pay salary only for those working days on
which he worked. He used to deduct the amount for the leaves taken
by the deceased.
5. Ld. Counsel has further argued that if the employer had been
deducting the salary of the deceased then he would not fall under the
category of permanent employee of the employer. It is further argued
that the deceased was getting salary only for working days not
otherwise.
6. On the other hand, ld. Counsel appearing on behalf of the
respondents / claimants has argued that, PW3, Sh. Vinod Kumar,
employer of the deceased who issued the salary certificate, has deposed
in his examination-in-chief that he was working in his office for the
last 5 to 6 years and continued till 05.06.2009. He had been getting
salary of Rs.7,500/-. To prove this fact, he produced the attendance
record for the last 3 years i.e. for the period 2007-2008, 2008-2009 and
2009-2010. He also produced the salary record of deceased Bhagirath
for the aforesaid financial years.
7. Ld. Counsel has further submitted that aforesaid PW has
specifically stated that deceased Bhagirath was a permanent employee.
Therefore, deducting his salary on the leaves taken by him does not
affect of his being a permanent employee for the reasons that most of
the private establishments do such type of practice.
8. In the case of Sarla Verma(supra) it is decided that where the
claimants are not able to establish the employment, then the minimum
wages has to be taken into consideration. Whereas, in the present case,
the claimants have fully established the employment by producing the
attendance register and the salary register. Therefore, in such case, up
to the age of 45 years, as established in the case of Sarla Verma, 50%
of the increase in future prospects has rightly been awarded by the ld.
Tribunal.
9. In view of the above discussion and legal position, I find no
discrepancy in the award passed by the learned Tribunal.
10. Finding no merit in the instant appeal, same is dismissed with no
order as to costs.
11. Consequently, awarded amount be released in favour of the
respondents/claimants as per the terms of order passed by the Tribunal
and statutory amount in favour of the appellant.
12. Before parting with this judgment, it is pertinent to mention here
that impugned award was passed on 29.03.2012 and, thereafter,
respondent No.4 (Ram Lal) expired on 01/10/2012. Therefore, share
of respondent No.4 shall be released in favour of respondent No.1, i.e.,
Smt. Sharda (wife of deceased).
CM. NO. 12230/2012 (Stay)
In view of the above instant application has become infructuous
and disposed of as such.
SURESH KAIT, J.
FEBRUARY 12, 2013
Jg/RS
