Sbi General Insurance Co. Ltd. vs Mahashir @ Mehar Singh & Anr.
2017 Latest Caselaw 2001 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 594/2016

%                                                   25th April, 2017

SBI GENERAL INSURANCE CO. LTD.              ..... Appellant
                  Through:  Mr. Aman Shukla, Adv.
                          versus

MAHASHIR @ MEHAR SINGH & ANR.           ..... Respondents

Through: Ms. Pratima N. Chauhan, 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)

CM Nos. 46954/2016 (delay in re-filing) and 46956/2016 (delay)

For the reasons stated in the applications delays in filing and re-

filing the appeal are condoned.

CMs stand disposed of.

FAO No. 594/2016 & CM No. 46952/2016 (stay)

1. This first appeal under Section 30 of the Employee's

Compensation Act, 1923 is filed by the appellant/insurance company

impugning the judgment of the Employees Compensation

Commissioner dated 4.7.2016, by which the Employees Compensation

Commissioner has allowed the claim petition filed by the respondent

no.1/claimant and awarded compensation of Rs. 9,88,560/- along with

interest as per Section 4A of the Employee's Compensation Act.

2. The facts of the case are that the respondent no.1/claimant

was working as a Driver with the respondent no.2 herein on Vehicle

No.HR-55-J-7995-Truck (10 Tyres). On 20.1.2015, the respondent

no.1 received grievous injuries arising out of and during the course of

employment inasmuch as, at around 10:00 AM on 20.1.2015 while

driving the truck, another truck which was passing from the opposite

direction, from this other truck something very heavy was hurdled

upon the respondent no.1's truck and the front glass of the truck was

broken. When the respondent no.1 got down from the truck to enquire

about the damage done he fell down and his wrist bone got detached

from the bone lock of the left hand. Respondent no.1 remained there

for 2-3 hours and a passerby took the respondent no.1 on his

motorcycle to Badanpur, Indira Colony, Bahadurpur Road, Burahanpur

(M.P.) where operation of his hand was done by one Dr. Subodh Borle,

M.S. (Ortho). Operation lasted for six hours. It is pleaded by the

respondent no.1 that as a result of the accident he has become

incapable of performing his duties of a driver, and therefore, he is

100% disabled for the purpose of employment as a driver. The subject

claim petition was therefore filed.

3. The appellant, and who was the respondent no.2 before

the Employees Compensation Commissioner, denied the claim of the

respondent no.1 by pleading that there was no relationship of employer

and employee, and also that there was no accident as alleged.

4. Respondent no.2 herein/employer appeared before the

Employees Compensation Commissioner and he admitted the factum

of relationship of employer and employee, happening of the accident,

as also drawing of salary by the respondent no.1 at Rs.8000/- per

month besides Rs. 200/- per day as food allowance.

5. The Employees Compensation Commissioner has allowed

the claim petition by observing as under:-

6. "The applicant filed his evidence by way of affidavit alongwith the documents-Copy of Original medical treatment documents, Copy of Original medical treatment bills of (Rs.4,511/-). Copy of Insurance Policy of the vehicle, copy of Certificate of Registration of the vehicle, copy of National Permit for Public Carriers of the vehicle and copy of Certificate Fitness of the vehicle. Copy of Authorization Certificate of N.P.(Goods) of the vehicle. Copy of Screen Report of Vehicle from Registering Authority Cum-R.T.A., Gurgaon. Copy of Election Identity Card of the applicant-Sh. Mahashir verified all the documents are suggestive of the factum of employment and accident. He was cross- examined by the counsel for the respondent No.2. Evidence was also adduced on behalf of the respondent/insurance company. The said witness was cross examined by the counsel of applicant.

7. The matter was fixed for arguments and arguments were heard.

8. After going through the pleadings of the parties, evidence brought forth by them and arguments advanced by them, my findings are as under:- The case of the applicant is that he was employed as a driver with respondent no.1 for the last about 4-5 years and he was posted as a driver on vehicle bearing no.HR-55-J-7995-Truck (10 Tyres). On 20-01-2015 he received grievous injuries arising out of the and during the course of employment. On 20-01-2015, the applicant was coming from Hyderabad to Binaula Sirki, where he loaded the goods and started his journey again

towards Hansi, District Jhajhar, Haryana. The applicant is the first driver accompanied with second driver Shri Mukesh. On 20-01-2015 near about 10:00 AM, while driving, a truck passed by from opposite direction. An object was thrown on the front glass of this by a driver of another vehicle and the applicant got down to check whether there was any much damage to the vehicle. When he was getting down he fell down from the truck and he sustained grievous injury which has rendered him disabled and due to that he has become permanently disabled. Respondent No.1 after issue of summon appeared and he filed his written statement. IN his written statement he stated that the applicant was posted on his truck and he sustained injury while on duty on the truck. It has further been stated that he is not entitled to injury compensation from him as the vehicle being insured, the insurance company be directed to pay. Apart from the version of employer, the applicant has filed prescription slip issued by Dr. Subodh Borele, M.S.(ORTHO), Burhanpur (M.P.). He has also filed chemist bills from Burhanpur. I have seen that that the applicant is resident of Aligarh. He has taken treatment at Burhanpur. Had he not sustained any injury he would not have preferred to go to M.P. He has narrated the history of his trips. The counsel for applicant in the given situation has relied on the judgment by the Hon'ble Supreme Court in the case titled as Maghar Singh Vs. Jaswant Singh Maghar Singh vs. Jaswant Singh-1997 ACJ 517 "..There is also the evidence showing the Respondent having taken the Appellant to the hospital after he sustained the injuries which is a factor which could not have been overlooked. There is also no reason to believe that the Appellant would wrongly point a finger at the Respondent as his employer."

Given the above facts, I am of the view that injury to the applicant has been caused out of and during the course of his employment with respondent No.1 on his truck bearing No.HR-55-J-7995. Hence the said issue is decided in favour of the applicant and against the respondents. Next comes as to what amount of injury compensation, the applicant/claimant is entitled to?

In the claim petition it has been stated that he was drawing wages @ Rs.8,000/- plus Rs.200/- as food allowances. In the written statement filed by Respondent No.1/employer it has been stated that the employ was being paid Rs.8000/- per month as monthly wages and Rs.200/- per day as food allowances. But as per the provision the applicant can be maximum allowed Rs.8000/- per month. IN the claim application it has been stated that he was aged 29 years. As per election identity card his age has been shown 22 years as on 01.01.2006 meaning thereby the applicant was aged 31 years. Hence his age taken 31 years. The applicant was medically examined and his physical assessment as per medical (Aruna Asif Ali Hospital) is assessed partial permanent. But as the applicant was driver and after his permanent partial disablement.

In the given age and wage the applicant is entitled to compensation as under:-

205.95 X 8000X 60 =Rs.9,88,560/-

100 X 100

9. The applicant is also entitled to interest from the date 30 days after the accident as per Section4A till the date of deposit. The respondent is directed to deposit the above amount of compensation alongwith interest with this court within 30 days from the date of this order failing which the same shall be recovered by way of land revenue." (emphasis added)

6. An appeal under Section 30 of the Employee's

Compensation Act only lies if a substantial question of law arises. Re-

apprising of evidence is not a substantial question of law. If two views

are possible out of the evidence led and the Employees Compensation

Commissioner takes one view, no substantial question of law arises.

The relevant portions of the impugned judgment reproduced above,

show that the Employees Compensation Commissioner has committed

no illegality or perversity in allowing the claim petition as per the

evidence available on record. It has been rightly held by the

Employees Compensation Commissioner that accident had occurred,

treatment was given, operation was done and that there was a

relationship of employer and employee. The Employees Compensation

Commissioner has rightly noted that the respondent no. 1 was a

resident of Aligarh in U.P. and thus the fact that he took treatment at

and was operated in M.P. showed that the accident actually took place.

7. (i) Learned counsel for the appellant, very strenuously argued

that the respondent no.1 did not have the valid driving license and

hence the claim petition was bound to be dismissed. It is however seen

that in the written statement filed by the appellant before the

Employees Compensation Commissioner no such defence, and which

is factual in nature, is taken. Once no such defence was taken

obviously the Employees Compensation Commissioner has not

decided this aspect. Not taking of a defence and thereafter arguing the

said issue for the first time in this Court does not raise any substantial

question of law under Section 30 of the Employee's Compensation

Act.

(ii) The learned counsel for the appellant then argued that appellant

had filed an application in the court below for seeking details as regards

the driving license etc, and these documents were not provided, and

therefore, the claim petition has been wrongly allowed inasmuch as, in

the affidavit by way of evidence appellant had pleaded that the vehicle

was used in contravention of the provisions of Sections 3 and 181 of the

Motor Vehicles Act, 1988 and also in violation of the terms of the policy.

However, in my opinion, an affidavit by way of evidence cannot be

beyond pleadings and once there are no pleadings of there being no valid

driving license, then no amount of evidence can be looked into on a plea

which was not put forth. Also, if this issue was argued before the

Employees Compensation Commissioner and the Employees

Compensation Commissioner did not decide this aspect then the appellant

had to file an application for review of the judgment of the Employees

Compensation Commissioner arguing that this aspect was argued before

the Employees Compensation Commissioner but was not decided by him.

This filing of a correction by review application is mandatory in view of

the judgment of the Supreme Court in the case of State of Maharashtra

Vs. Ramdas Shrinivas Nayak and Another (1982) 2 SCC 463 and which

states that the record of the court below is final, unless, if there is alleged

to exist a wrong factual conclusion not supported by the record of the

Court below, then the person who alleges the wrong factual conclusion

must approach the same court at the earliest for correction of the Court

record. In the present case, the appellant has not approached the

Employees Compensation Commissioner at the earliest urging that

appellant had raised a plea before the Employees Compensation

Commissioner of the respondent no.1 not having the valid driving license

and that Employees Compensation Commissioner has however not

decided this issue. Therefore, neither as per the pleadings of the appellant

or the impugned judgment it is seen that appellant contended that

compensation was not payable allegedly on the ground that the

respondent no.1 did not have a valid driving license.

8. No substantial question of law arises. Dismissed.

APRIL 25, 2017/ib                                VALMIKI J. MEHTA, J