Delhi High Court
Hari Om Forwarding vs Radhey Shyam & Anr. on 3 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.62/2014
% 3rd March, 2014
HARI OM FORWARDING ..... Appellant
Through: Mr. Nishant Anand, Advocate.
Versus
RADHEY SHYAM & ANR. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No.4035/2014
CM is allowed by condoning the delay.
FAO No.62/2014
1. The challenge by means of this first appeal filed under Section
30 of the Employee's Compensation Act, 1923 (hereinafter referred to as
'the Act') is to the impugned order of the Commissioner, Employee's
Compensation dated 17.10.2012 which has awarded compensation to the
respondent/employee.
2. The facts of the case are that the respondent was employed as a
FAO No.62/2014 Page 1 of 4
loading/unloading worker by the appellant. On 5.11.2009 while loading
fruits on truck bearing No.JH-01-AA/0359 the right hand of the respondent
got trapped in the dala/flap of the truck resulting in three fingers of the right
hand being chopped/broken off. Respondent was admitted to the Jagjivan
Ram hospital by the Munshi of the appellant and thereafter he was shifted to
the Trauma Centre of the hospital for treatment. Petitioner was 35 years of
age at the time of accident. Appellant in the written statement admitted the
employer- employee relationship but took up a stand that the relationship of
employer and employee is not there because respondent was only a casual
labour and not working with the appellant on salary basis.
3. The relevant paras of the written statement taking up the case of
non-payment of salary and hence no relationship of employer and employee
are paras 1 to 8 and which read as under:-
"1. That the above said workman was not with the employment of the
management. The workman was a casual loader who was loading and
unloading the goods on the carriers on several places with the help of
his associates @ Rs.600 per truck.
2. That the workman never worked with any management on the
salary basis.
3. That the management works on the commission base who arrange
the meetings between wholesale fruit seller and buyer/parties, and
help for dealings between the parties. After successful dealings
between the parties, the management get the commission from the
parties.
FAO No.62/2014 Page 2 of 4
4. That the process of business deal the whole responsibility is raised
upon buyer and the said buyer arranges the goods carrier, loader and
unloader.
5. That at the time of accident, the said workman and three other
loader were send with the goods/apple had to send to Bihar Sharif
(Bihar).
6. That the management did not know the workman prior this
accident, he came first time for loading the goods/apple with the said
truck No.JH-01AA/0359, send by eight other buyers of the fruits. It is
pertinent to mention here that on that day, there were eight wholesale
fruits buyer, who were sending their wholesale fruits collectively by
the said truck.
7. That there is no relation of employer and employee between the
management and workman.
8. That the despite of not being the workman/employee of the
management, just after the accident, the management took the hospital
to the injured workman and afforded all the expenses of the said
workman. At the time of discharge from the hospital, the
management spent Rs.4,000/- in the hospital till discharge of the
workman. That after discharge from the hospital the workman
demanded Rs.5,000/- from the management for got to his native
village at Azamgarh, U.P., which was also paid to workman by the
management."
4. In view of the above, in fact there was no need even to lead
evidence on the issue framed of existence of relationship of employer and
employee as now even a casual worker not getting paid monthly salary is
included in the sweep of the Act. However, respondent led evidence and at
the stage of evidence of the appellant herein there is a controversy as to
FAO No.62/2014 Page 3 of 4
whether the appellant (who is respondent before the Commissioner) wanted
to lead evidence or conceded to not leading of evidence and case being
argued straight away. Irrespective of controversy as to the language of the
order dated 26.9.2012, the fact of the matter is that the relationship of the
employer and employee in the present case has been established because the
respondent was employed as a daily wager for loading and unloading fruits
from the truck. I may note that originally the definition of a workman in the
Act excluded a person who was a casual worker/labour, however, the Act
was amended by Act 46 of 2000 (which became operative from 8.12.2000)
whereby even a casual worker was included within the scope of operation of
the Act by the Legislature deleting from the definition of workman in
Section 2(n) of the Act those words which excluded benefit of the Act to a
casual worker.
5. No other issue except the issue of relationship of employer and
employee was argued before this Court.
6. In view of the above, there is no merit in the appeal, and the
same is therefore dismissed, leaving the parties to bear their own costs. CM
No.4034/2014 is also dismissed.
MARCH 03, 2014 VALMIKI J. MEHTA, J.
Ne
