Delhi High Court
M/S Schindler India Pvt. Ltd. vs Public Works Department & Ors. on 1 May, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 85/2013
% 1st May, 2014
M/S SCHINDLER INDIA PVT. LTD. ......Appellant
Through: Mr. Avinash Kumar & Mr. Abhay
Pandey, Advocates.
VERSUS
PUBLIC WORKS DEPARTMENT & ORS. ...... Respondents
Through: Mr. Yogesh Saini for Mr. V.K.
Tandon, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
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') impugning the
judgment of the Commissioner dated 11.4.2012 which has allowed the claim
petition filed by respondent no.2 herein who is the widow of the deceased
workman/employee Vijay Singh who died in an accident arising out of and
in the course of employment pertaining to maintenance and running of the
escalator owned by respondent no.1 herein and contracted for running and
maintenance to the appellant herein.
FAO 85/2013 Page 1 of 5
2. The facts of the case are that the deceased Vijay Singh was the
employee of the appellant and he died on account of electricity current
which leaked from the switch of the foot light of the foot over bridge when
the deceased Vijay Singh went on to switch off the light.
3. The factum of the death of Vijay Singh is not disputed, and what is
the case of the appellant is that the deceased Vijay Singh was neither an
employee of the appellant nor of the sub-contractor of the appellant who was
employed to look after the running and maintenance of the escalator.
4. No doubt, the Commissioner has decided the case by reference to only
pleadings and existing documents, and no oral evidence has been led by the
parties, however, it is well settled law that strict provisions of CPC and
Evidence Act do not apply to proceedings before the Commissioner as per
the judgment of the Supreme Court in the case of Om Parkash Batish Vs.
Ranjit Kaur @ Ranbir Kaur & Ors. (2008) 12 SCC 212. I put a specific
query to counsel for the appellant as to whether the appellant had filed an
application before the Commissioner to lead evidence or that a ground has
been raised in this appeal that the appellant was prevented from leading
evidence, however, it is conceded that no such ground was raised in this
appeal that appellant was prevented from leading evidence and nor any such
FAO 85/2013 Page 2 of 5
application was filed before the Commissioner. Therefore, Commissioner
has rightly held on the basis of existing record that death of deceased Vijay
Singh happened when he went to switch off the light of the foot over bridge.
5(i) I cannot agree with the submission of the appellant that the deceased
Vijay Singh was not an employee of the appellant or its sub-contractor
because as per Section 106 of the Evidence Act, 1872 onus of proof with
respect to a fact which in the special knowledge of the person is on the
person with whom the personal knowledge is, and, in this case whether or
not deceased Vijay Singh was not an employee as per the employment
records of appellant or of its sub-contractor was/is in the special knowledge
of the appellant as per the records of the appellant/its sub-contractor. Since
the employment records showing the details of the employees of the
appellant and its sub-contractor have not been filed either in this Court or
before the Commissioner, adverse inference has to be drawn against the
appellant as per the provision of Section 106 of the Evidence Act.
(ii) Even if the deceased person Vijay Singh was not an employee of the
appellant but was the employee of the sub-contractor, and that he died in an
FAO 85/2013 Page 3 of 5
accident arising out of and in the course of employment in the course of his
duty, then, by virtue of Section 12 of the Act, appellant was liable to make
payment to the respondent no.1. Section 12 has been included in the statute
book so as to make two persons liable to the dependents of the deceased
workman/employee, one being the actual employer and second the person
(called a principal under Section 12 of the Act) at whose site the deceased
employee was working although the employee was not an employee of the
person at whose site work was being performed. As between the sub-
contractor of the appellant and the appellant, the provision of Section 12 of
the Act will come into play because qua the deceased employee the
appellant would be the principal employer because it was the appellant to
whom the site/escalator in question was contracted out for its running and
maintenance and where the deceased Vijay Singh was working when he met
with an accident.
6. I may additionally note that the deceased employee, before his death
had made a statement that he was employee of the appellant herein, and
which aspect is sufficient to hold that the deceased Vijay Singh was
employee of the appellant more so because appellant failed to file the
employment records available with it. Really therefore Section 12 of the Act
FAO 85/2013 Page 4 of 5
is applied only as an additional aspect in this case for fastening the liability
upon the appellant.
7. No other points or issues are urged before this Court.
8. In view of the above I do not find any merit in the appeal since it is
rightly held by the Commissioner that the death of the deceased Vijay Singh
took place in an accident arising out of and in the course of employment
with the appellant. The appeal is therefore dismissed, leaving the parties to
bear their own costs.
MAY 01, 2014 VALMIKI J. MEHTA, J.
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