Delhi High Court

Gopichand Decd Thr Lrs &Anr vs Sukhdev & Anr on 13 February, 2014

Author: Valmiki J. Mehta

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ FAO 55/2012 February 13, 2014

GOPICHAND DECD THR LRS &ANR ..... Appellants

Through : Mr. R.K.Singla, Advocate.

versus

SUKHDEV & ANR ..... Respondents

Through : None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

FAO 55/2012 & CM 1886/2012(stay)

1. This First Appeal under Section 30 of the Employee's Compensation

Act, 1923, impugns the judgment of the Commissioner dated

25.11.2011 which has allowed the claim petition filed by the respondents

herein (applicants before the Commissioner). The appellants no. 1 to 3 and

5 to 8 are the legal heirs of the respondent no.1 before the Commissioner -

Sh. Gopi Chand, and who were substituted in place of Gopi Chand during

the pendency of the proceedings before the Commissioner. The appellant

FAO55/2012 Page 1 of 6
no.4 Ashok Kumar, son of Gopi Chand, was already the respondent no.2

before the Commissioner.

2. The case set up by respondents before the Commissioner was that the

deceased Sohan Lal was employed as a mason(Raj Mistri) by the appellants.

It is stated that on 04.03.1996 while the deceased Sohan Lal was on duty, he

met with an accident arising out of and in the course of employment and

died due to electrocution as the accident site was not managed properly. An

FIR No. 181/1996 was registered under Section 304A IPC with Police

Station Janak Puri, New Delhi. The respondents had sent a notice for claim

of compensation to which there was no response and hence the claim

petition was filed.

3. The respondent no.1 before the Commissioner, namely, Gopi Chand,

filed his written statement and stated that the deceased Sh. Sohan Lal was

not his workman but was an employee of a Contractor Sh. Sohan Lal (Sohan

Lal is the name of the deceased and Sohan Lal is also the name of the

Contractor who was employed to carry out work on the site owned by Gopi

Chand respondent no.1 before the Commissioner) and, therefore, the

Contractor Sh. Sohan Lal is liable for the death of the Raj Mistri Sh. Sohan

Lal.

FAO55/2012 Page 2 of 6
It was contended that the construction work was being carried out by the

Contractor Sh. Sohan Lal who managed the entire construction work and

therefore it was the Contractor Sh. Sohan Lal who was responsible because

there was no relationship of the employer and employee between the

respondent no.1/before the Commissioner (appellants herein) and the

deceased Sh. Sohan Lal.

4. The Commissioner has, while dealing with issue no.1, held that no

documents were filed by the appellants herein that the deceased Sh. Sohan

Lal was employed by them through the Contractor. It is also held by the

Commissioner by referring to the FIR that the criminal case under Section

304A IPC was registered against Gopi Chand father of the present

appellants. The criminal case had abated on account of death of Gopi Chand.

The Commissioner has then referred to the various documents in the

criminal case which showed that the deceased Sohan Lal was employed as

Raj Mistri on the construction site of the appellants. The relevant

observations made by the Commissioner read as under:-

"Issue No.(i)
The claimants have stated that deceased Sohan Lal died
due to the employment injuries sustained by him on 4.3.1996
in the course and out of his employment with the
respondents. The respondents have stated that deceased
Sohan Lal was employed by them through Contractor Sohan

FAO55/2012 Page 3 of 6
Lal. The respondents have not filed any document to
substantiate their stands to show that deceased workman
was employed by them through contractor. Shri Brij Mohan
Garg, S/o.late Gopi Chand owner and resident of RZ-36A
Indira Park Extension Part-I Bindapur Road, Uttam Nagar
in his cross-examination has stated that he along with his
brother is residing at RZ-36A Indira Park Extension Part-I,
Binda Pur Road, Uttam Nagar, New Delhi. He has admitted
that a criminal case under Section 304A of IPC was
registered against his father Shri Gopi Chand and the same
was abated on his death. The certified copies of charge-
sheet filed in the FIR No.181/1996 under Section 304A of
IPC registered with Police Station Janakpuri in the Court of
Metropolitan Magistrate and other documents attached
therewith clearly show that deceased Sohan Lal was
employed as Raj Mistri on the construction site of the
respondents and on 4.3.1996 during the course of his
employment he got electrocuted which resulted in his death.
Therefore, I hold that deceased Sohan Lal died due to the
injuries sustained by him in the course and out of his
employment with the respondents.

This issue is decided in favour of the claimants and
against the respondent."

5. In view of the above, the respondents before the Commissioner, and

the appellants before this Court, failed to prove that the deceased Sh. Sohan

Lal was appointed through a Contractor Sh. Sohan Lal. Accordingly,

Commissioner held the respondents before him liable (the appellants before

this Court) and directed them to pay compensation.

6. Counsel for the appellants argued before this Court two aspects. First

aspect was that the deceased was an employee of the Contractor Sh. Sohan
FAO55/2012 Page 4 of 6
Lal and, therefore, appellants cannot be held liable in view of the judgment

delivered by learned Single Judge of this Court reported as Ajay Singh Lal

Vs.Smt. Somwati & Anr. 116 (2005) DLT 421, and, the second aspect was

that the deceased was not "Workman" within the meaning of the expression

as found at the relevant time in 1996 because employment was only on

casual basis.

7. Before I advert to the arguments on merits, it is relevant to note that

appeal lies in this Court under Section 30 of the Act only where there is

substantial question of law. Appeals are not entertained to re-appreciate and

reappraise the findings of the facts which are arrived at by the

Commissioner.

8. The first argument of the appellants which is buttressed by reference

to the judgment in the case of Ajay Singhal (supra) is misconceived because

there is finding of fact arrived at by the Commissioner that deceased

employee was employed by the appellants, and not by the contractor Sh.

Sohan Lal. This finding of fact does not raise substantial question of law

because the Commissioner has rightly referred to the various documents

filed in the criminal case which showed that the deceased Sh. Sohan Lal was

employed by the respondents, and who therefore are the employers. The

appellants filed no documents to discharge the onus of proof upon them that
FAO55/2012 Page 5 of 6
there was a contractor Sh. Sohan Lal and that the deceased mason Sh. Sohan

Lal was the employee of the contractor Sh. Sohan Lal.

9. So far as the second argument is concerned, I do not find any pleading

in the written statement before the Commissioner that the deceased Sh.

Sohan Lal was not covered under the definition of "Workman" inasmuch as

the preliminary objection no.4 in the written statement which is relied upon

by the appellants is only to the effect that the deceased Sh. Sohan Lal was

not the workman of the respondents before the Commissioner but was the

workman of an independent Contractor Sh. Sohan Lal. This aspect as

already noted above, the respondents before the Commissioner, and the

appellants herein, failed to prove.

10. In view of the above, there is no merit in the appeal and the same is,

therefore, dismissed leaving parties to bear their own costs.