Public Works Department vs Kanti Devi & Ors.
2016 Latest Caselaw 5395 Del

$~19 & 22

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of Decision: August 17, 2016
(i)    +     FAO 394/2016
(ii)   +     FAO 397/2016
       PUBLIC WORKS DEPARTMENT                   ..... Appellant
                       Through: Ms. Prabhsahay Kaur, ASC, with
                                Mr. Bishamber Dass, E.E. (North
                                Road)
                versus

       KANTI DEVI & ORS                                  .....Respondents
                     Through:         Nemo
                And

       BABU LAL @ MAHADEV                                .....Respondents
                    Through: Nemo
       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

                          JUDGMENT

% (ORAL)

C.M.No.29789/2016 (Delay) in FAO 394/2016 C.M.No.29847/2016 (Delay) in FAO 397/2016 There is delay of nine days in filing the accompanying appeals i.e. FAO 394/2016 and FAO 397/2016.

For the reasons stated in these applications, they are allowed and the delay of nine days stands condoned.

The applications stand disposed of.

FAO 394/2016 & C.Ms.29788, 29790, 29791 & 29950/16 FAO 397/2016 & C.Ms.29846, 29848-50/16 In the above captioned two appeals, one Ram Nath Sharma, who was driver on the road roller, and Babu Lal, who was a helper on the said road roller, had sustained injuries by burns in a freak accident, which took place on 11th August, 2013. The manner in which the accident took place need not be spelt out in detail. It would suffice to note that a motorized trolley (Tralla) was being driven in a negligent manner and it struck against a Charcoal Tank, which was having boiling charcoal in it and due to the collision of the trolley with the Charcoal Tank, the boiled liquid charcoal fell on Ram Nath Sharma and Babu Lal. The injuries to Ram Nath Sharma proved fatal whereas the injured Babu Lal sustained burn injuries on the upper limb of his body resulting in 20% of permanent disability.

In the claim petition, apart from the evidence of injured-Babu Lal, there is evidence of legal heirs of deceased-Ram Nath Sharma, injured- Babu Lal and that of one Tale Ram. Vide separate orders of even date i.e. 24th May, 2016, the claim petitions of the legal heirs of the deceased-Ram Nath Sharma and of injured-Babu Lal were allowed. The compensation awarded in these two claim petitions vide aforesaid impugned orders is under challenge in the above captioned two appeals.

Learned counsel for appellant submits that the grounds on which the impugned orders are assailed are on common and, so both these appeals were heard together and are being disposed of by this common judgment.

At the hearing, it was vehemently contended by learned counsel for appellant that there existed no relationship of employer-employee between the appellant and the deceased or the injured. It was pointed out that the road roller in question belonged to Tale Ram and it is so evident from the application filed by counsel for the claimant and the documents showing that the Superdari of the road roller was given to aforesaid Tale Ram.

It was also submitted that appellant's contractor was one Kuldeep and there is nothing on record to show that Kuldeep had in turn employed Tale Ram for doing the road repair work. It was also submitted that there is nothing on record on the basis of which it can be inferred that the deceased or the injured were the employees of appellant. To submit so, reliance is placed upon a Single Bench decisions of this Court in ICICI Lombard General Insurance Co. Ltd. v. Smt. Sonia & Ors., 2014 (1) RLR 546 and Chander Sain and Ors. v. J. B. Garments, 160 (2009) DLT 18. Lastly, it was submitted that the onus of proof of being an employee of appellant was on the claimants, which they have failed to discharge and, so impugned orders deserve to be set aside.

Upon hearing and on perusal of impugned orders, the evidence on record and the decisions cited, I find that though the primary responsibility is of the claimant to show that the deceased or the injured was employed by the employer, but it does not mean that it is the sole responsibility because in cases like the instant one, it is indeed difficult to establish by documentary evidence the relationship of employer- employee. It needs to be noted that there is evidence of injured-Babu Lal

on record, which clearly shows that the injured as well as the deceased were doing the work of road repair and that the deceased was driver of the road roller whereas injured was the helper. The manner in which this accident took place already stands noted above. It has come in the cross- examination of injured-Babu Lal that he was working as Beldar under one Kuldeep and was deputed on the work of repair of road. It is not in dispute that Kuldeep was the contractor of appellant.

During the course of hearing, it was submitted by learned counsel for appellant that the link with Tale Ram, who was the owner of the road roller, is not established. A bare perusal of the evidence of Tale Ram reveals that it is not so. It has come in the cross-examination of Tale Ram that he was employed by employer-Kuldeep. So, the link stands established and as such, the decisions relied upon have no application to the facts in the instant case.

Finding no substance in the above captioned two appeals and the applications, they are dismissed with liberty to appellant to have recourse under Section 12 of the Employees Compensation Act, 1923 to get indemnified from the contractor-Kuldeep.

The appeals and the applications are accordingly disposed of.

(SUNIL GAUR) JUDGE AUGUST 17, 2016 s