Delhi High Court
National Insurance Co. Ltd. vs Smt. Sarita Mishra And Ors. on 3 February, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.41/2014
% 3rd February, 2014
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate.
Versus
SMT. SARITA MISHRA AND ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.2207/2014 (condonation of delay)
1. For the reasons stated in the application, delay of one day in
filing the appeal is condoned.
C.M. stands disposed of.
FAO No.41/2014 Page 1 of 6
C.M. No.2208/2014 (condonation of delay)
2. For the reasons stated in the application, delay of 42 days in re-
filing the appeal is condoned.
C.M. stands disposed of.
+ FAO No. 41/2014 and C.M. No.2206/2014 (stay)
3. This first appeal is filed under Section 30 of the Employee's
Compensation Act, 1923 (hereinafter referred to as 'the Act') by the
insurance company, which was respondent no.3 before the Commissioner.
Respondent no.3 was originally proceeded exparte. Thereafter it appeared
through authorized representative but once again on 8.6.2011 it was
proceeded exparte. These aspects are noted in paras 2 and 4 of the
impugned judgment. I may note that since the appellant-insurance company
was proceeded exparte, no evidence was led on behalf of the appellant-
insurance company.
4. The facts of the case are that the applicants/respondent Nos.1 to
6 herein filed the claim petition before the Commissioner on the ground that
the deceased Sh. Ram Parkash Mishra, husband of the applicant
No.1/respondent no.1 herein and father of other applicants/respondent nos.2
to 6 herein, was employed with the transport company respondent no.7
FAO No.41/2014 Page 2 of 6
herein (respondent no.1 before the Commissioner) as Supervisor since May,
2006. The deceased Sh. Ram Parkash Mishra also used to be sent
sometimes on emergency duty for driving of the vehicle of the respondent
no.7 herein. On 5.1.2007, at about 12.30 night the respondent no.7 herein
directed the deceased Sh. Ram Parkash Mishra to drive the vehicle as there
was no other driver. The vehicle in question met with an accident leading to
the death of Sh. Ram Parkash Mishra. Hence the claim petition.
5. Respondent no.7/employer did not appear before the
Commissioner and was proceeded exparte. As already stated above, even
the appellant herein, respondent no.3 before the Commissioner was
proceeded exparte. The applicants before the Commissioner led their
evidence by filing of affidavit by way of evidence and duly proved on record
the documents being ration card, photographs of accident site, duty card of
the deceased, cheque receipt showing mode of payment of salary and other
related documents as Ex.PW1/1 to Ex.PW1/9. The Commissioner thereafter
applying the applicable formula under the Act has granted compensation as
also interest under Section 4A of the Act.
6. Before me, counsel for the appellant argued that since the
deceased was employed as a Supervisor and not as a driver there would be
no liability of the appellant-insurance company and liability of the appellant-
FAO No.41/2014 Page 3 of 6
insurance company is only if the deceased was regularly employed as a
driver. It is argued that in the impugned judgment there is no discussion by
the Commissioner of the deceased being an employee under the Act and
consequently the impugned judgment is liable to be set aside because the
aforesaid aspects which are urged before this Court raise a substantial
question of law.
7. In my opinion, the arguments urged on behalf of the appellant
are grossly misconceived. Firstly, it is necessary that if a person wants to
challenge a judgment on merits such a person namely the appellant-
insurance company must enter appearance, file its pleadings and substantiate
the case contained in its pleadings by leading of evidence. Nothing of all
that has been done and therefore in my opinion the present appeal is an
appeal in futility. Also, the contention that a person must be a regularly
employed driver, and since the deceased was employed as a Supervisor but
was asked to drive, and therefore the appellant-insurance company is not
liable, is once again an argument wholly without any merit because it is not
the case of the appellant-insurance company before the Commissioner, and
also not before this Court, that the deceased while driving the vehicle was
doing so without any driving licence. Once a person has driving licence,
surely, he is entitled to drive and it is no where provided in the Act that the
FAO No.41/2014 Page 4 of 6
person must be employed as a driver only for the entire month and thereafter
only such a person who drives the vehicle will be called as driver. In my
opinion, an employee who has a driving licence and drives the vehicle falls
within the meaning of the expression 'driver' as found under Section
2(dd)(ii)(c) of the Act.
8. The argument urged on behalf of the appellant that the
Commissioner has not discussed the aspect that the deceased was or was not
an employee covered under the Act is a misconceived argument because I
fail to understand how an insurance company who does not even choose to
appear before the Commissioner, file pleadings and substantiate its case, can
take up such an argument in an appeal although there is no basis for the
same as laid out before the Commissioner. In any case, I have already held
that the deceased was an employee under Section 2(dd)(ii)(c).
9. It is high time that insurance companies realize that instituting
frivolous appeals are wastage of judicial time and more so in the facts of
present case where the appellant-insurance company did not even appear
before the Commissioner and was proceeded exparte.
10. In view of the above, the appeal is accordingly dismissed, with
costs of Rs.15,000/-, and which costs shall be paid to the Advocates Welfare
Fund within six weeks from today. On deposit of the costs to the Advocates
FAO No.41/2014 Page 5 of 6
Welfare Fund, an affidavit will be filed on behalf of the appellant in the
Court that needful has been done, failing which Registry will list the matter
in Court thereafter.
FEBRUARY 03, 2014 VALMIKI J. MEHTA, J.
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