Delhi High Court
Oriental Insurance Co. Ltd. vs Smt. Shanti Devi And Ors. on 27 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.303/2010
% 27th March, 2014
ORIENTAL INSURANCE CO. LTD. ....Appellant
Through: Mr. Pradeep Gaur, Advocate.
VERSUS
SMT. SHANTI DEVI AND ORS. ...... Respondents
Through: Mr. Prabhakar, Advocate for
respondent No.2.
Mr. V.K. Tandon, Advocate for
respondent No.3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 30 of the Employee's
Compensation Act, 1923 (hereinafter referred to as 'the Act') against the
impugned order of the Commissioner dated 17.5.2010 by which the
Commissioner allowed the claim petition filed by the respondent nos.1 and 2
herein (mother and wife of the deceased employee). Appellant/insurance
company was the respondent no.3 before the Commissioner, and on deletion
of the respondent no.3 it became the respondent no.2.
FAO No.303/2010 Page 1 of 6
2. The facts of the case are that the deceased Sh. Dalip Kumar,
aged 25 years was employed as a driver for driving the tempo bearing
no.DL-1LE-2777 Tata 407 owned by the respondent no.3 herein (respondent
no.1 before the Commissioner). The deceased Sh. Dalip Kumar on the
directions of the employer on 9.7.2008 at about 8.00 P.M. left to fill the
vehicle with gas from the godown of M/s. Uttam Special Gases Pvt. Ltd, A-
61, Okhla Industrial Area, Phase-II, New Delhi and reached there at about
9.30 P.M. The deceased Dalip Kumar parked the vehicle because the gas
was to be filled at about 5.30 AM and he set the cylinder for filling the gas
in the morning at 5.30 A.M. In the godown of the company M/s. Uttam
Special Gases Pvt. Ltd there was a blast of a gas cylinder and Sh. Dalip
Kumar died on the spot. An FIR bearing No.293 dated 10.7.2008 under
Sections 286/304-A was registered in the police station.
3. Before the Commissioner, the employer/respondent no.3
appeared and conceded to the factum of employment of the deceased Sh.
Dalip Kumar. The relationship of employer and employee was therefore
admitted by the employer. The appellant/insurance company did not dispute
that with respect to the vehicle in question there was a valid insurance policy
for the period from 22.4.2008 to 21.4.2009 and additional insurance
premium was paid for coverage under the Act. Since there was admission
FAO No.303/2010 Page 2 of 6
of relationship of employer and employee and the fact that the vehicle in
question was insured with additional premium under the Act, Commissioner
allowed the claim petition by applying the statutory formula.
4. The appellant/insurance company before the Commissioner
filed the written statement denying its liability by stating that the accident
cannot be said to have happened during the course of employment. This is
stated by the insurance company in para 3 of its written statement and which
reads as under:-
"3. That the answering respondent cannot be held responsible
for the death of Sh. Dalip Kumar as he was a driver of the vehicle
only. He was not driving vehicle at the time of unfortunate
accident. So his death was not caused during the course of
employment and arising out of employment. While the tempo was
being loaded with cylinders by others, the valve of one of the
cylinders got broken and Sh. Dalip Kumar who was present at the
site got fatal injury on account of above which ultimately resulted
in to his death. The answering respondent is not liable to pay any
compensation to the dependents of deceased."
5(i) Before me, it is again similarly argued that the deceased cannot
be said to have died on account of an accident happening during the course
of and in relation to employment inasmuch as the deceased did not die while
driving the vehicle.
(ii) In my opinion, the argument urged before me is completely and
absolutely frivolous to say the least inasmuch as in the written statement it is
FAO No.303/2010 Page 3 of 6
admitted in so many words that while the subject tempo which was insured
was being loaded with cylinders the valve of the cylinder got broken and the
deceased Sh. Dalip Kumar who was present at the site sustained fatal
injuries resulting in his death. Surely, the meaning of the expression
"accident arising out of and in the course of employment" is not restricted to
the fact that the driver must necessarily be driving the vehicle when accident
took place. Surely, standing near the vehicle when the vehicle was being
loaded with cylinders is in the part and parcel of the duties of a driver, and at
this stage, if an accident happens because of blast of a cylinder while loading
of the cylinders in the truck, this accident is definitely one which arises out
of and in the course of employment.
6(i) Counsel for the appellant sought to place reliance on the
judgment of the Supreme Court in the case of Mallikarjuna G. Hiremath
Vs. Branch Manager, Oriental Insurance Co. Ltd. and Anr. AIR 2009 SC
2019 to argue that when a driver takes the truck to a temple as per the
directions of the employer and after reaching the temple he goes to a pond
for taking a bath where he slips and drowns in such a case it has been held by
the Supreme Court not to be a case of death arising out of and in the course of
employment and therefore in the present case also it must be held that the
FAO No.303/2010 Page 4 of 6
deceased did not die on account of an accident happening during the course
of employment.
(ii) The argument on behalf of the insurance company is totally
misconceived because in the present case the appellant/insurance company
itself admits in the written statement that the truck in question which was
insured was being loaded with cylinders when one valve of one cylinder was
broken and therefore there resulted in an explosion which caused the death
of the deceased Sh. Dalip Kumar. Surely, when the deceased Sh. Dalip
Kumar was standing near the truck he was performing his duties, because, a
driver does not necessarily perform his duties only at the time of the driving
of the vehicle. I do not think there is, and nor is any judgment cited before
me, that, liability of an insurance company is only when the accident
happens while the driver is driving the vehicle.
6(i) Learned counsel for the appellant finally argued that as per the
FIR in question the explosion took place in the godown and which resulted
in the death and therefore the accident cannot be said to have been arisen
during the course of employment.
(ii) The argument is once again absolutely frivolous because that is
not even the case of the appellant/insurance company in the written
statement filed by it before the Commissioner and even if I assume that this
FAO No.303/2010 Page 5 of 6
plea is raised in the written statement, even in such a case if the explosion
takes place in the godown, the driver was performing his duties as a driver
while his vehicle was being loaded, and hence the accident necessarily
happens out of and in the course of employment of the driver. This
argument is also therefore rejected.
7. In view of the above, there is no merit in the appeal, and the
same is therefore dismissed with costs of Rs.25,000/-. Costs shall be paid to
the respondent no.2 within a period of six weeks from today. In my opinion,
it is advisable that the insurance companies should not file appeals on totally
frivolous grounds which causes unnecessary expenditure to the claimants
before the Commissioner. This appeal is one such frivolous appeal, and costs
are being awarded in view of the observations of the Supreme Court in the
case of Ramrameshwari Devi & Ors. Vs Nirmala Devi & Ors. (2011) 8
SCC 249.
MARCH 27, 2014 VALMIKI J. MEHTA, J.
Ne
