The New India Assurance Co. Ltd vs Puran Lal & Ors
2015 Latest Caselaw 8106 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO 385/2013 and C.M. No.15735/2013

%                                Date of Decision: 28th October, 2015

      THE NEW INDIA ASSURANCE CO. LTD ...... Appellant
                    Through: NEMO.

                        versus

      PURAN LAL & ORS                               ..... Respondents
                   Through:            Mr Anup J. Bhambhani, Senior
                                       Advocate, as amicus curiae
                                       with Mr. Joydeep Majumdar,
                                       Mr. Satyam Thareja and Mr.
                                       Rohit Dutta, Advocates
                                       Mr. Rahul Mehra, Sr. Standing
                                       counsel for GNCTD with Mr.
                                       Shekhar Budakoti and Mr.
                                       Sanyog Bahadur, Advocates
                                       Ms. Aayushi Gupta proxy for
                                       Mr. Raman Duggal, Standing
                                       Counsel for GNCTD
                                       Mr. Rajesh Mahajan, ASC for
                                       Delhi Police with Mr. O.P.
                                       Singh, ACP (Railways) and
                                       Insp. Hari Krishan, P.S. SRRS
                                       Mr. Krishna Mohan, Advocate
                                       for respondent No.3
      CORAM:
      HON'BLE MR. JUSTICE J.R. MIDHA
                      JUDGMENT(ORAL)

1. Mr. Rahul Mehra, learned Standing Counsel for Government of NCT of Delhi submits that five posts of Joint Labour Commissioners

have been filled up, out of which four officers have already joined and one officer would be joining shortly. It is further submitted that two officers are already dealing with the Employees Compensation Act cases. It is submitted that the entire backlog is expected to be cleared by 29th February, 2016.

2. With respect to the fresh cases, the DCP (Railways) had submitted a report dated 03rd September, 2015 along with the format of the Employee Accident Report (EAR).

3. Mr. Anup J. Bhambhani, learned amicus curiae submits that the relevant provisions of the "Claims Tribunal Agreed Procedure" formulated by this Court in Rajesh Tyagi v. Jaibir Singh, I (2015) ACC 838(Del.) be incorporated in the cases relating to the employees compensation. It is further suggested that the procedure relating to the Employees Accident Report (EAR) be implemented initially for a period of six months.

4. The Delhi Police and the Commissioners, Employees' Compensation, shall start the implementation of Employee Accident Report (EAR) w.e.f. 01st December, 2015 initially for a period of six months. The Delhi Police as well as Commissioners, Employees Compensation Act shall submit a report with respect to the functioning of this system for the first three months i.e. 01st December, 2015 to 29th February, 2016. The report be submitted by 10th March, 2016 whereupon this Court shall consider whether this procedure requires any modification/variation. The detailed procedure is as under:

"EMPLOYEES COMPENSATION AGREED PROCEDURE

1. Investigation of accidents arising out of and in the course of employment cases by the police Immediately on receipt of the information of an accident, the Investigating Officer of Police shall inspect the site of accident, take photographs of the site of the accident from all angles, prepare a site plan and collect the relevant evidence. The Investigating Officer shall conduct spot enquiry by examining the eye-witnesses.

2. Duty of the police to complete the investigation of the criminal case and to file the chargesheet (Report under Section 173 Cr.P.C.) before the Metropolitan Magistrate and EAR along with copy of the chargesheet before the Commissioner, Employees' Compensation within 30 days The police shall make every endeavour to complete the investigation of the criminal case and shall submit the Employee Accident Report (EAR) with the Commissioner, Employees' Compensation within 30 days of the accident. The EAR shall be in the form attached hereto as Annexure-A and shall be accompanied with the documents mentioned therein.

3. Copy of EAR to be furnished to the claimants, employer and the insurance company.

The Investigation Officer shall furnish the copy of EAR to the employee/legal representatives of the deceased employee, employer and the insurance company (if the employer had taken an insurance policy).

4. Extension of time to file EAR Where the Investigating Officer is unable to complete the investigation within 30 days for reasons beyond his control, he shall seek extension of time to file EAR from the Commissioner, Employees' Compensation.

5. Duty of the hospital to issue MLC and Post-mortem Report within 15 days of the accident The concerned hospital shall issue the MLC and Post-Mortem

Report, if any, to the Investigating Officer within 15 days of the accident.

6. Investigating Officer to seek necessary directions from the Commissioner, Employees' Compensation In the event of failure of the employer, Insurance Company and/or claimants to disclose the relevant information and documents required to complete the EAR, the Investigating Officer shall seek necessary directions from the Commissioner, Employees' Compensation whereupon the Commissioner shall, in appropriate cases, direct the parties in default to disclose the relevant information on affidavit along with the original documents within 15 days.

7. Duty of the Investigating Officer to produce the employee/legal representatives of the deceased employee, employer and the eyewitnesses before the Commissioner, Employees' Compensation along with the EAR The Investigating Officer shall produce the employee/legal representatives of the deceased employee, employer and the eye witnesses before the Commissioner, Employees' Compensation along with the EAR. However, if the Police is unable to produce the employer, claimants and eye-witnesses before the Commissioner, Employees' Compensation on the first date of hearing for reasons beyond its control, the Commissioner, Employees' Compensation shall issue notice to them to be served through the Investigating Officer for a date for appearance not later than 30 days. If the employer has taken an insurance policy, the Investigating Officer shall give an advance notice to the concerned Insurance Company about the date of filing of the EAR before the Claims Tribunal so that the nominated counsel for the Insurance Company can remain present on the first date of hearing before the Commissioner, Employees' Compensation.

8. Duties of police shall be construed to be part of State Police Act The duties of police enumerated above shall be construed as if they are included in the respective State Police Act and any breach thereof, shall entail consequences envisaged in that law.

9. Examination of EAR by the Commissioner, Employees' Compensation The Commissioner, Employees' Compensation shall examine whether the EAR is complete in all respects and shall pass an appropriate order in this regard. If the EAR is not complete, the Commissioner shall direct the Investigating Officer to complete the same and shall fix a date for the said completion.

10. Commissioner, Employees' Compensation to treat EAR as information under Section 10A(1) of the Employees' Compensation Act The Commissioner shall treat EAR as information under Section 10A(1) of the Employees' Compensation Act. If the Police is unable to produce the claimants on the first date of hearing, the Commissioner, Employees' Compensation shall initially register the EAR as a Miscellaneous Application which shall be registered as a claim petition after the appearance of the claimants. Where the claimants have filed a separate claim petition, the EAR shall be tagged to the claim petition. If a claimant opts to claim compensation under the Motor Vehicles Act instead of Employees Compensation Act, the Commissioner, Employees' Compensation shall record the option of the claimant and close the matter.

11. Duty of the Insurance Company to appoint a Designated Officer within 10 days of the receipt of the copy of EAR In cases of insurance by the employer, the Insurance Company shall appoint a Designated Officer within 10 days of the receipt of copy of the EAR. The Designated Officer shall be responsible for dealing / processing of that case and to pass a reasoned decision in writing with respect to the amount payable to the claimant in accordance with law.

12. Duty of employer and/or Insurance Company to process EAR and submit an offer for settlement within 30 days The employer/Insurance Company shall examine the EAR and take a decision as to the quantum of compensation payable to the claimants in accordance with law. The decision shall be taken by the employer/Designated Officer of the Insurance Company in writing

and it shall be a reasoned decision. The employer/Designated Officer of the Insurance Company shall place the written reasoned decision before the Commissioner, Employees' Compensation within 30 days of the date of receipt of the copy of EAR from the Investigating Officer.

13. Consent award to be passed where claimant accepts the offer of the employer/Insurance Company If the compensation computed by the employer/Designated Officer of the Insurance Company is acceptable to all the claimants and is in accordance with law, the Commissioner, Employees' Compensation shall pass a consent award whereupon the employer/Insurance Company shall make the payment of the award amount within 30 days. However, before passing the consent award, the Commissioner, Employees' Compensation shall ensure that the claimants are awarded just compensation in accordance with law. The Commissioner, Employees' Compensation shall also pass an order with respect to the respective shares of the individual claimants, where there are more than one, and the mode of disbursement.

14. In case of non-settlement, the Commissioner, Employees' Compensation shall conduct an enquiry and pass an award within 30 day If the offer of the employer/Insurance Company is not fair and not acceptable to the claimants or any of them or if the employer/Insurance Company has any defence available to it under law, the Commissioner, Employees' Compensation shall proceed to conduct an inquiry and shall pass an award within a period of 30 days thereafter. The enquiry contemplated in the Employees Compensation Act is different from a trial. The principles relating to the scope of an enquiry are discussed in Mayur Arora v. Amit, 2011 (1) TAC 878. The Commissioners, Employees Compensation Act shall dispose of the cases within a period of three months in terms of Section 25A of the Employees Compensation Act.

15. Examination of the claimants before passing of the award Before or at the time of passing of the award, the Commissioner, Employees' Compensation shall examine the claimants to ascertain

their financial condition/needs to determine their share, mode of disbursement, amount to be kept in fixed deposit and period of fixed deposit. The Commissioner, Employees' Compensation shall also ascertain the complete address and Bank Account details of the claimants. The Commissioner, Employees' Compensation shall take on record the following documents from the claimants:

(i) Proof of residence;

(ii) Details of the Bank Account of the Claimants; and

(iii) Two sets of photographs and specimen signatures of the claimants.

18. Deposit of the award amount 18.1 In the award, the Commissioner, Employees' Compensation shall specifically direct the employer/Insurance Company, as the case may be, to deposit the award amount with the Commissioner, Employees' Compensation or the Bank along with the interest upto the date of notice of deposit to the claimants with a copy to their counsel within 30 days of the award. The names and addresses of the claimants and their counsel for issuance of notice of deposit be mentioned in the award.

18.2 The Commissioner, Employees' Compensation shall keep the amount deposited by the owner/insurance company in fixed deposit till the disbursement of the amount to the claimants. The Commissioner, Employees' Compensation shall ensure that the amount deposited is kept in fixed deposit within three working days of the deposit.

18.3 If the award amount has been directed to be deposited by the Insurance Company with the bank, copy of the award be sent to the Nodal Officer of the Bank along with the Court stamped copy of the photographs, specimen signatures, proof of residence and bank account details of the claimants. In case of direction to deposit the award amount directly with the Bank, the Commissioner, Employees' Compensation shall direct the cheque be issued in the name of the Bank so that the award amount can earn interest till the claimant approaches the Bank.

19. Protection of the award amount The Commissioner, Employees' Compensation shall, depending upon the financial status and financial need of the claimant(s), release such amount as may be considered necessary and direct the remaining amount to be kept in fixed deposits in phased manner (for example, if a sum of Rs.5,50,000/- has been awarded to the claimants, Rs.50,000/- may be released immediately and the remaining amount of Rs.5,00,000/- may be kept in 10 fixed deposits of Rs.50,000/- each for a periods of six months, one year, one and a half years, two years and so on till five years or one year, two years, three years and so on till ten years). The Commissioner, Employees' Compensation shall also consider imposing following conditions with respect to the fixed deposits:-

(i) The interest on the fixed deposits be paid monthly to the Claimant(s).

(ii) The monthly interest be credited automatically in the saving account of the claimant(s).

(iii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant(s) along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant(s).

(iv) No cheque book be issued to the claimant(s) without permission of the Court. However, a photo identity card be issued to the claimant(s) and the withdrawal be permitted upon production of the identity card.

(v) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.

(vi) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim.

(vii) Half yearly statement of account be filed by the Bank with the Commissioner, Employees' Compensation.

20. Commissioner, Employees' Compensation shall fix a date for reporting compliance 20.1 The Commissioner, Employees' Compensation shall fix a date for reporting compliance in the award itself. The Commissioner, Employees' Compensation shall also direct the employer/Insurance Company to place on record the proof of deposit of the award amount, the notice of deposit and the calculation of interest on the date fixed. Upon such proof being filed, the Commissioner, Employees' Compensation shall ensure that the interest upto date of notice of deposit has been deposited by all concerned.

20.2 If the award amount is not deposited within the stipulated period, the Commissioner, Employees' Compensation shall attach the bank account of the employer/insurance company.

21. Record of deposit of the award amount The Commissioner Employees' Compensation shall maintain the record of the deposit of the award amount in the following form:-

    (i)     Case title and number.
    (ii)    Date of award.
    (iii)   Award amount.
    (iv)    Date of deposit of the award amount.
    (v)     Date on which the amount was kept in fixed deposit.
    (vi)    Date of notice by the employer/insurance company to
            the claimant.

(vii) Date of notice by the Commissioner, Employee's Compensation to the claimant.

(viii) Period for which the claimant is entitled to interest under Order XXI Rule 1(4), CPC.

(ix) Amount of interest to which the claimant is entitled under Order XXI Rule 1(4), CPC.

(x) Amount of interest actually received by the claimant under Order XXI Rule 1(4), CPC.

ANNEXURE 'A'

FORMAT OF EMPLOYEES ACCIDENT REPORT (EAR)

PART I PARTICULARS OF THE ACCIDENT S. No.

1. FIR No., date and under Section

2. Name of the Police Station

3. Offences as per report under Section 173 CrPC

4. Date, time and place of accident

5. Who reported the accident to the Police?

(Give name, address & contact no.)

(a) Employer

(b) Victim

(c) Witness

(d) Hospital/Medical facility

6. Name of the person who took the victim to the hospital, name of the hospital and at what time

7. Nature of the accident:

(a) Whether resulted in death or injury or both?

(b) Number of persons injured/died

8. Name and contact no. of the Investigating Officer

9. Names of witnesses of the accident

10. Whether accident recorded in a CCTV footage/ other electronic device etc.

11. Date of preparation of the site plan

12. Brief description of the accident

PART II INFORMATION RELATING TO INJURED / DECEASED EMPLOYEE

13. Death Cases:

(a) Name and address of the deceased

(b) Age

(c) Gender

(d) Education

(e) Occupation

(f) Income (monthly)

(g) Legal heirs/Guardian:

                (i)    Name
                (ii)   Relationship
                (iii)  Age
                (iv)   Address
                (v)    Contact No.
14.   Injury Cases:
          (a) Name and address of injured
          (b) Age
          (c) Gender
          (d) Education
          (e) Occupation
          (f) Income (monthly)

(g) Details of family/dependents of the victim.

(h) MLC No.

(i) Nature of injuries

(j) Name of hospital(s) where injured treated?

(k) Whether victim refused medical treatment

(l) Period of hospitalization

(m) Period of treatment

(n) Whether treatment continuing

(o) Name, address and contact number of the doctor(s) who treated the injured

(p) Whether injured underwent any surgery(s)? If

so,give particulars?

(q) Whether suffered any permanent disability? If yes, give details

(r) Whether the injured got reimbursement of medical expenses from his employer or under a mediclaim policy. Give details, if available

15. Any other relevant information PART III INFORMATION RELATING TO EMPLOYMENT

16. Job Profile of injured / deceased employee

17. Date of joining of injured / deceased employee

18. Salary drawn by injured / deceased on day of accident

19. Name of employer (including name of manager / concerned person)

20. Address of employer

21. Details of Registration of employer or establishment

22. Account no. with name and address of the Bank in which the employer is having its account Note: [Employer, in this Form would mean, but not limited to, Company, Partnership, Proprietorship, Co-operative or any other entity or association] PART IV PARTICULARS OF THE INSURANCE

23. Policy Number

24. Period of policy

25. Issued by (give name and address of the Insurance Company)

26. Nature of policy

27. Date of intimation of the accident by the Investigating Officer to the Insurance Company

28. Date of appointment of the Designated Officer by the Insurance Company

29. Name, address and contact number of the Designated

Officer of the Insurance Company

30. Account no. with name and address of the Bank in which the Insurance company is having its account PART V RELEVANT DOCUMETNS TO BE ATTACHED

31. First Information Report or Daily Diary Entry

32. Site plan of the location where the accident took place

33. Statements of the witnesses recorded by the police under Section161 Cr.P.C.

34. Photographs of the scene of accident from all angles.

35. Documents relating to registration of the Employer or Establishment

36. Proof of employment of the injured/deceased employee such as appointment letter, salary slips, duty register etc.

37. Insurance Policy

38. Report under Section 173 Cr.P.C.

39. In case of Death

(a) Post Mortem Report

(b) Death certificate

(c) Photograph and proof of the identity of the dead (d ) Proof of age of the deceased which may be in form of :

(i) Birth certificate

(ii) School certificate

(iii) Certificate from gram panchayat (in case of illiterate)

(e) Proof of Occupation and income of the deceased which may be in form of :

(i) Pay slip/salary certificate for salaried employees.

(ii) Bank statements of the last six months.

(iii) Income Tax Returns

(iv) Balance Sheets

(f) Proof of the legal representatives of the deceased

(i) Names

(ii) Age

(iii)Address

(iv) Relationship

(v) Contact no.

(g) Photographs, specimen signatures attested by the bank and identity proof of the legal representatives of the deceased

(h) Treatment record, medical bills and other expenditure

(i) Bank Account no. of the legal representatives of the deceased with name and address of the bank

40. In case of Injury

(a) MLC of the deceased/injured

(b) Multi angle photographs of the injured

(c) Photographs, specimen signatures attested by the bank and identity proof of the injured

(d) Proof of age of the injured which may be in form of :

(i) Birth certificate

(ii) School certificate

(iii)Certificate from Gram Panchayat (in case of illiterate)

(e) Proof of occupational income of the injured at the time of the accident which may be in form of:

(i) Pay slip/salary certificate for salaried employees.

(ii) Bank statements of the last six months of the injured employee.

(iii)Income Tax Returns

(iv) Balance Sheets

(f) Treatment record, medical bills and other expenditure - In case of long term treatment, the SHO/IO shall also record the details so that the claimant may furnish documents before the Commissioner, Employees' Compensation.

(g) Bank Account no. of the injured with name and address of the bank

VERIFICATION Verified at _______ on this ________ of _____, that the contents of the above report are true and correct as per information and documents gathered during investigation.

Station House Officer (Name and Stamp)

Assistant Commissioner of Police (Name and Stamp)

5. It is hoped that the implementation of the Employees Compensation Agreed Procedure will start a new era in investigation and award of compensation under the Employees Compensation Act. However, the success of the Employees Compensation Agreed Procedure shall depend upon the implementation of the scheme by the Delhi Police and the Commissioners, Employees' Compensation in its true letter and spirit.

6. The successful implementation of the Employees Compensation Agreed Procedure shall result in payment of compensation to the victims of the accidents within 90 days of the accident in terms of Section 25A of the Employees Compensation Act.

7. The Commissioners, Employees' Compensation shall ensure that just compensation is paid to the victims of the accident or dependents within agreed time frame and the quality of justice is not compromised.

8. List as a part heard matter on 11th March, 2016.

9. This Court appreciates the assistance rendered by Mr. Anup J. Bhambhani with Mr. Joydeep Majumdar and Mr. Satyam Thareja,

learned amicus curiae, Mr. Rahul Mehra, learned Senior Standing Counsel for GNCT of Delhi and Mr. Rajesh Mahajan, learned Additional Standing Counsel for GNCT of Delhi in formulating the Employees Compensation Agreed Procedure.

10. Copy of this order be given dasti to learned Senior Standing Counsel as well as learned Additional Standing Counsel under signature of the Court Master, for being circulated to Delhi Police and Commissioners, Employees' Compensation for compliance. Copy of this order be also given dasti under signature of the Court Master to Mr. D.K. Nag, learned counsel for IRDA, who shall send the same to IRDA for being circulated to the insurance companies for compliance. Copy of this order be also given dasti under the signature of the Court Master to learned amicus curiae.

J.R. MIDHA, J.

OCTOBER 28, 2015 rsk