The Oriential Insurance Company ... vs Satender Kumar And Anr.
2014 Latest Caselaw 2670 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO 193/2013
                                                     23rd May, 2014

      THE ORIENTIAL INSURANCE COMPANY LIMITED ......Appellant
                    Through: Mr.R.C.Mahajan, Advocate.


                          VERSUS

      SATENDER KUMAR AND ANR.                  ...... Respondents
                  Through: Ms.Pratima N.Chauhan, Advocate for
                           R-1.
                           Mr.S.S.Choudhary, Advocate for R-2.
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(1) of the Workmen's

Compensation Act, 1923 impugning the judgment of the Commissioner dated

07.2.2013, by which the Commissioner has allowed the compensation claim of

the respondent no.1/claimant.


2.    The facts of the case are that the respondent no.1 was working as a

Driver on vehicle/bus bearing no. DL-IPA 6592 owned by the respondent no.2

herein and he was drawing wages of Rs.6000/- per month with Rs.200/- per

day for diet and lodging allowances. On 02.1.2005, the respondent no.1 was


FAO 193/2013                                                     Page 1 of 5
 driving the vehicle on route no. 263 and coming towards Bhajanpura side.

When the bus was coming down from the Gokulpuri Flyover, a Maruti Zen

bearing no. DL-2CP 1108 suddenly came before the bus and, though the

respondent no.1 tried to avoid any impact with the Maruti Zen by turning the

bus towards middle line of the road, another DTC bus bearing no.DL- 1PA

7739, which was coming towards the Golukpuri Flyover rammed into the bus

which the respondent no.1 was driving. As a result of the accident, respondent

no.1 as also other passengers suffered multiple injuries. The respondent no.1

claimed that the appellant is wrongly said to be negligent in driving the bus. As

a result of the accident, respondent no.1 suffered multiple injuries and

fractured his right lower leg and had become permanently disabled and cannot

do his work of the driver, which he was doing prior to the accident. An iron

rod has been inserted in the right leg of the respondent no.1 because of the

accident.


3.    The appellant, Insurance Company was the respondent no.2 before the

Commissioner and it pleaded that it had no intimation of the accident by the

insured. It was prayed that the claim petition of the respondent no.1 be

dismissed.




FAO 193/2013                                                           Page 2 of 5
 4.    The Commissioner has held that since the accident took place in the

course of the employment of the claimant /respondent no.1 with respondent

no.2 herein, the claim petition was allowed by granting compensation of

Rs.1,99,661/- along with simple interest @ 12% per annum.


5.    Before me, the learned counsel for the appellant/Insurance company

firstly urges that the respondent no.1 was himself guilty of negligence and,

therefore, he could not be granted compensation under the Act. The second

argument which is raised is that the Commissioner has fallen into an error in

taking the figure of wages of the respondent no.1 as Rs.4000/-.


6.    So far as the first argument is concerned, learned counsel for the

appellant sought to place reliance upon Section 3(1)(b) proviso (ii) of the Act

which provides that compensation cannot be granted when there is wilful

disobedience by the employee of an order expressly given or to a rule

expressly framed. However, when the counsel for the appellant was asked to

show which is the order which was given and breached by the employee or

rule which was not observed, learned counsel for the appellant argued that

once there is negligence due to rash and negligent driving that should be taken

as wilful disobedience by an employee of an order/rule. In my opinion, this

argument does not help the appellant because the order or rule which is stated


FAO 193/2013                                                          Page 3 of 5
 to be breached must be substantially pleaded so that notice is given to the

opposite party/respondent no.1 to meet the same. Not only a specific case has

to be pleaded in this regard, but also by establishing facts the aspect of wilful

disobedience ingredient of the order/rule had to be proved. In the present case,

it has not been pointed out by the appellant that a specific pleading before the

Commissioner in this regard is taken by the Insurance Company and

consequently established by leading evidence, the argument raised before this

Court by the appellant has no merit and the first argument on the part of the

appellant is hence rejected.


7.    So far as the second argument is concerned that the Commissioner has

wrongly taken the figure of wages at Rs.4000/-, when the learned counsel for

the appellant was put to notice of Section 4(1)(B) of the Act which was

enacted by the legislature by the Act 45 of 2009 to do away with the disputes

with respect to quantum of salary by taking the minimum wage fixed by the

Government under the Minimum Wages Act, 1948 the learned counsel for the

appellant concedes that no ground has been raised in the appeal that the

amount of Rs.4000/- as wages taken by the Commissioner is not the figure of

monthly wages as per the Gazette Notification of the Government. The second

argument of the appellant is also, therefore, without any merit and is rejected.



FAO 193/2013                                                            Page 4 of 5
 8.    I may note that an appeal under Section 30 of the Workmen's

Compensation Act only lies if there is a substantial question of law. No

substantial question of law arises as per the arguments urged on behalf of the

appellant, and therefore, this appeal is dismissed, leaving parties to bear their

own costs.




MAY 23, 2014                                        VALMIKI J. MEHTA, J.

KA