National Insurance Co. Ltd. vs Sh. Fazlu Rahman Ansari & Ors.
2014 Latest Caselaw 2620 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.304/2012

%                                                 22nd May, 2014

NATIONAL INSURANCE CO. LTD.           ..... Appellant
                 Through: Ms. Shanta Devi Raman, Advocate.

                          Versus

SH. FAZLU RAHMAN ANSARI & ORS.               ..... Respondents

Through: Ms. Pratima N. Chauhan, Advocate for respondent No.1.

Ms. Sushma, Advocate for respondent No.2.

Mr.A.S. Rao, Law Officer, DMRC.

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') by the

appellant/insurance company impugning the judgment of the Commissioner

dated 27.4.2012 by which the Commissioner has allowed the claim petition

filed by the respondent no.1 herein and granted compensation.

2. The case of the respondent no.1 before the Commissioner was

that he was a workman employed as a supervisor-cum-labour by M/s.

Simplex Concrete Piles India Ltd. M/s. Simplex Concrete Piles India Ltd

was a contractor of the respondent no.3 herein M/s. Delhi Metro Rail

Corporation. Respondent no.1 pleaded that on 26.2.2001 he reported for

duty at the site at 8.30 A.M and in the evening at about 6.00 P.M. when he

alongwith other workers were placing PCC iron support channel in an

underground place (ditch), suddenly some portion of the earth near the ditch

slid down and as a result of which he fell down on the iron channel and

suffered injuries in his lower limbs. Respondent no.1 states that he was

given first aid by the site engineer and taken to a private hospital on the next

date for treatment. Respondent no.1 states that he received further treatment

from Taiba Nursing Home after going back to his village. Respondent no.1

pleaded that he again came back to Delhi and received treatment from Ram

Manohar Lohia Hospital from 3.7.2001 to 17.7.2001 and thereafter as an

outdoor patient. Respondent no.1 pleaded disability of 75% in terms of the

certificate issued by the Ram Manohar Lohia Hospital and accordingly filed

the subject claim petition.

3. There were three respondents before the Commissioner.

Respondent no.1 before the Commissioner was M/s. Simplex Concrete Piles

(India) Limited and which is respondent no.2 in this appeal. Respondent

No.2 before the Commissioner was M/s. Delhi Metro Rail Corporation and

which is respondent no.3 in this Court. The appellant/insurance company

was respondent no.3 before the Commissioner. M/s. Simplex Concrete Piles

(India) Ltd denied that respondent no.1 was its employee. M/s. Simplex

Concrete Piles (India) Ltd stated that they had engaged a sub contractor

namely Mr. Bachu Gupta to carry out the contractual work and which was

being done by Mr. Bachu Gupta under his supervision and control. It is

specifically pleaded by M/s. Simplex Concrete Piles (India) Ltd that not only

there was no relationship of employer and employee of the respondent no.1

with the M/s. Simplex Concrete Piles (India) Ltd but also that there was no

accident at any of the project site or any other place in which the respondent

no.1 herein was involved.

4. M/s. Delhi Metro Rail Corporation in its written statement

stated that the claim petition had been filed to extort money and there was no

relationship of employer and employee.

5. The contractor-Mr. Bachu Gupta filed his written statement and

though admitted that he was engaged in the work of labour supply to M/s.

Simplex Concrete Piles (India) Ltd, but, it was denied that respondent no.1

was the employee on the date of the accident i.e on 26.2.2001. Mr. Bachu

Gupta pleaded that respondent no.1 was earlier an employee and thereafter

he had left for his village at Jharkhand. It was further pleaded by Mr. Bachu

Gupta that there was no question of the respondent no.1/claimant during the

period of employment working at a depth of 5 mtrs because during the

period of employment he used to work on the surface only by marking

attendance and issuing materials such as welding wire, nails, plywood, hand

gloves, shoes, helmet etc. The happening of the accident on 26.2.2001 is

denied and in fact it is stated that the sites of Delhi Metro Rail Corporation

are regulated and there is a safety officer, first aid provision etc etc. It was

contended that in the present case since there was no accident, there is no

report of the accident and also no MLC.

6. The Commissioner has held that there was a relationship of

employer and employee and that there was an accident arising out of and in

the course of employment.

7(i) In my opinion, the impugned order of the Commissioner has

caused grave injustice to the appellant and suffers from clear cut perversity.

No doubt, onus in a case under the Act can be very easily discharged,

however, the onus of the factum with regard to relationship of employer and

employee on the date of the accident and also the accident actually

happening at the site of the employer has to be discharged by that much

credible evidence which the Court will believe. Whether onus is discharged

or not depends on facts of each case and facts and circumstances of each

case have to be taken as a whole by the Commissioner and the Court to

determine whether there was a relationship of employer and employee and

whether the accident took place at the site of the employer.

(ii) In the present case, in my opinion, no accident took place at the

site of the contract on 26.2.2001. I would like to note that the sites of Delhi

Metro Rail Corporation are well regulated by means of proper contracts

which run into hundreds of pages. Delhi Metro Rail Corporation imposes

strict conditions on its contractors and sub-contractors which are appointed

by the contractors with respect to reporting of accident and also for giving of

treatment at site and thereafter further treatment to an injured employee.

Even if we take that there is no such contract, but, the fact of the matter is

that if there was an accident at site, there would either be an FIR or in the

very least a report which is made to the police by the respondent no.1 on the

date of the accident or soon after the date of the accident. This is not there

in the present case. Also, in my opinion, it is inconceivable for companies

like Delhi Metro Rail Corporation and M/s. Simplex Concrete Piles (India)

Ltd to conceal happening of any accident if it takes place because at the site

there are bound to be dozens and dozens of workers and if there is an

accident at least one of the co-workers of the respondent no.1 would have

come and deposed with respect to happening of the accident, and which is

not the position in this case. The most important aspect to be noted is that

there is no medical record whatsoever filed by the respondent no.1 of the

date of the accident or immediately after the date of the incident of any the

hospital or nursing home at Delhi showing the treatment and the injuries of

the respondent no.1 in an incident on 26.2.2001.

8. Therefore, on a conspectus of the entire facts it is not possible

for this Court to hold that the respondent no.1 discharged the onus with

respect to there being a relationship of employer and employee. Even if we

take the fact that there was a relationship of employer and employee, the

most important aspect is that the respondent no.1 has failed to prove that

actually he was injured in an incident at the site on 26.2.2001 and happening

of which accident at site is a sine qua non for claiming of compensation

under the Act.

9. Learned counsel for the respondent no.1 vehemently argued

two aspects before this Court. Firstly, it is argued that the strict provisions

of CPC and Evidence Act do not apply to the proceedings before the

Commissioner and therefore this Court should take note of the document

Ex.AW1/2, statement made by Mr. Bachu Gupta to the police (not known

where) in which Mr. Bachu Gupta admits the factum of the incident and the

employment. The second argument urged is that since Mr. Bachu Gupta

admits having paid compensation (Mr. Bachu Gupta admitting payment of

Rs.5,500/- and which is before the Labour Commissioner where the

respondent no.1 filed the case) and therefore it is sufficient to hold that there

was a relationship of employer and employee and Mr. Bachu Gupta accepted

the employment as also the happening of the accident.

10. No doubt, strict provisions of CPC and Evidence Act do not

apply to proceedings before the Commissioner, but, surely there has to be

some modicum of evidence which the Courts consider to be a discharge of

onus of proof of relationship of employer and employee and happening of

the accident. Each case has to be examined as per its facts and the evidence

as to whether at least some amount of evidence exists for the Court to accept

the existence of relationship of employer and employee and happening of the

accident. I have already given the detailed facts above and which show in a

case such as the present, and which is a site of the Delhi Metro Rail

Corporation, where there is absolutely no medical record filed by the

respondent no.1, it cannot be held that there was relationship of employer

and employee and that an accident took place on 26.2.2001 at the site of

Delhi Metro Rail Corporation through its contractor M/s. Simplex Concrete

Piles (India) Ltd and still further through the sub contractor Mr. Bachu

Gupta. I may note that though the counsel for the respondent no.1 relies

upon Ex.AW1/2, in my opinion, this document cannot be said to have

authenticity for this Court to believe and rely upon the same. This is

because the document which is on the record of the Commissioner and

exhibited as Ex.AW1/2 is only a photocopy. I have not been pointed out any

other document which is an original document, much less bearing the

signatures of Mr. Bachu Gupta, or the fact that this document was received

by the police authorities (not known where) i.e there is no original stamp of

the police authorities that such a statement was made to the police

authorities. I therefore reject the so called document Ex.AW1/2 both on the

ground of its existence/authenticity.

11. So far as the argument urged that Mr. Bachu Gupta had paid a

sum of Rs.5,500/- before the Labour Commissioner to the respondent no.1 is

concerned, in my opinion, this cannot help the respondent no.1 because the

amount of Rs.5,500/- is such a small amount that Mr. Bachu Gupta was right

in pleading that this amount was given as a humanitarian aid to the

respondent no.1 who was once an employee. In fact, the amount of

Rs.5,500/- is so small that any person who is a contractor in order to avoid

frequent visits to the Labour Commissioner leading to wastage of time and

money in this regard would prefer to pay a sum of Rs.5,500/- so that the

issue is not carried any further before the Labour Commissioner.

12. At the end, I would like to comment that I was inclined to issue

directions for criminal prosecution of the respondent no.1 under Section 340

Cr.P.C. because it is high time that totally frivolous and false claims before

the Commissioner are stopped from being filed, however, considering the

poverty of the respondent no.1 and his physical condition I am not issuing

any directions to initiate proceedings under Section 340 Cr.P.C. against the

respondent no.1.

13. In view of the above, the appeal is allowed. Impugned

judgment of the Commissioner dated 30.4.2012 is set aside. Parties are left

to bear their own costs. Since respondent no.1 has already received the

amount pursuant to the order of the Commissioner, the appellant can recover

the same from respondent no.1 in accordance with law.

MAY 22, 2014                                 VALMIKI J. MEHTA, J.
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