Oriental Insurance Company ... vs Baldev Singh & Anr.
2017 Latest Caselaw 4185 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 47/2016

%                                                    17th August, 2017

ORIENTAL INSURANCE COMPANY LIMITED         ..... Appellant
                 Through: Mr. L.K. Tyagi, Advocate.
                          versus

BALDEV SINGH & ANR.                                   ..... Respondents

                 Through:                Ms. Pratima N. Chauhan and
                                         Ms. Ritu Jamwal, Advocates for
                                         R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?        YES


VALMIKI J. MEHTA, J (ORAL)

1. This first appeal is filed by the Insurance Company,

respondent no. 2 before the Employees Compensation Commissioner

below, impugning the judgment of the Employees Compensation

Commissioner acting under the Employees Compensation Act, 1923

(hereinafter referred to as „the Act‟) whereby, the claim petition filed

by the respondent no. 1 herein has been allowed and the respondent

no. 1 has been awarded compensation of Rs.2,94,708/- along with

interest at 12% per annum from 10.4.2002 till the date of deposit.

2.(i) The facts as pleaded by the respondent no. 1/claimant

before the Employees Compensation Commissioner were that the

respondent no. 1/claimant was appointed by the respondent no.

2/employer, and who was the respondent no. 1 before the Employees

Compensation Commissioner below. The respondent no. 1/claimant

was employed as a driver to drive the truck bearing no. HR-38-DG-

4114 of the respondent no. 2 herein/employer. It was pleaded

originally in the claim petition that the truck was being driven by the

respondent no. 1/claimant on 14.11.2003 on a commercial trip from

Kolkata to Delhi, and the truck was loaded with raw aluminum. The

said truck on reaching near Varanasi met with an accident with

another vehicle coming from the opposite direction. It was pleaded in

the claim petition that the respondent no. 1/claimant had suffered

injuries on his right leg with a compound fracture of the knee and the

respondent no.1/claimant was taken to a local private hospital and

thereafter got admitted to Deen Dayal Upadhyaya Hospital at Delhi

where he remained admitted for 23 days. Respondent no. 1/claimant

pleaded that a steel rod was fitted in his leg and that as a result of the

injury he has become 100% disabled for the purpose of his

employment as a driver. I may note that the date given in the original

claim petition of the accident occurring was 14.11.2003 but the date of

the accident was subsequently allowed to be amended in terms of the

amendment application filed by the respondent no.1/claimant and the

date of accident was allowed to be changed from 14.11.2003 to

10.3.2002. It is relevant to note that the claim petition was filed after

around 7 years of the alleged accident.

(ii) Appellant/Insurance Company, respondent no. 2 before the

Employees Compensation Commissioner below, contested the claim

petition and pleaded that no accident took place as was pleaded by the

respondent no.1/claimant and also that the respondent no.1/claimant

was not having a driving license. It was pleaded that the respondent

no. 1/claimant should be directed to file the FIR, driving license,

MLC, etc etc. Appellant/Insurance Company also denied that there

was a relationship of employee and employer between the respondent

no. 1/claimant and the respondent no. 2 herein. The relevant paras 2

and 3 of the preliminary objections in the written statement filed by

the appellant read as under:-

"2. That till date the answering respondent has not received any intimation in respect of the alleged accident and alleged injuries sustained by the claimant along with the documents, i.e. FIR, Site Plan, Mechanical

Inspection, Statement of the injured/claimant made to the police officials concerned, copy of the DL, Permit, R.C. Fitness, MLC etc. either from the claimant or from the respondent no. 1 in respect of the alleged accident in which the applicant/claimant sustained the injuries. Hence, the averments of the claim petition filed by the claimant not reliable and as such, the claim petition filed by the claimant is liable to be dismissed by this Hon‟ble Court.

3. That the claimant in his claim petition under reply, initially mentioned that the name of the owner of the offending vehicle is Sh. Jaspal Singh and later on by way of amending his petition telling Sh. Surjeet Singh is the owner of the offending vehicle. Besides, he stated initially the accident was occurred on 14.11.2003 and thereafter by way of filing an application that the accident was occurred on 10.03.2002. These very facts clearly creating serious doubts that there was no relationship of workman and management between the claimant and the respondent no. 1."

3. Respondent no. 1/claimant after issues were framed led

evidence. Respondent no. 1/claimant has filed on record and proved

as per his affidavit the medical treatment documents as Ex.AW1/1

(colly.), Disability Certificate as Ex.AW1/2 and Insurance Cover Note

as Ex.AW1/3.

4. The issues framed by the Employees Compensation

Commissioner read as under:-

"i. Whether the workman was working as a driver or as a helper with the respondent?

ii. Whether the injuries sustained by the workman were caused out of and during the course of employment?

iii. If so, to what amount of compensation the claimant is entitled to?

      iv.     Relief, if any."





 5.            Employees        Compensation         Commissioner         by     the

impugned judgment has allowed the claim petition holding that there

exists a relationship of employee and employer between the

respondent no. 1 and respondent no. 2. These issues as to the existence

of relationship of employer and employee and the happening of the

accident have been dealt with in paras 9 to 11 of the impugned

judgment. These paras 9 to 11 read as under:-

9. In the claim application filed by applicant/claimant it has been stated that he was on his commercial trip as driver on vehicle-truck on the instructions and directions of respondent No. 1 and the said truck was coming from Kokotta to Delhi and it was loaded with raw aluminum. Another truck hit this truck and in the collision the vehicle was totally damaged and the applicant sustained injuries in his right leg. He was immediately taken to hospital near the place of accident thereafter he was taken to Delhi and was got admitted in D.D.U. hospital, Delhi and he remained admitted there for 23 days. Operation was done and rod was inserted in his leg and thereafter he was shifted to his native place and took further treatment there as he could not recover and rod could not be adjusted and it created septicemia thereafter it had to be removed at Kapurthala. Respondent/employer - the owner of the vehicle his reply had stated that the applicant was present in the truck and he was not working at that time. It had been further stated that the applicant was not working as driver but in fact he was posted as cleaner. After the accident he was taken to Delhi and respondent no. 1 gave best treatment to him. Meaning thereby it is not disputed that the injury had been caused to the workman when he was posted on the truck. Even if we admit the contention of the employer it is proved that the injury had been caused out of and during the course of employment. Hence the said issues are answered accordingly.

Next comes what amount of injury compensation the applicant is entitled to. In the claim application it has been stated that he was 40 years of age. In the medical documents a similar age has been shown, hence I take the age of the applicant 40 years. In the claim application he has stated that he was drawing wages @ Rs.3000/- per month plus Rs.50/- per day as food allowances. I do not find any documentary proof or any other evidence in

this regard. In the given situation I have to fall on the minimum rates of wages. The prevalent rate of wages for unskilled workman at the relevant time was Rs.2667/- per month. Hence his wage is taken Rs.2667 per month. It has been stated that he has become disabled. He has filed a certificate from medical board, Aruna Asaf Ali Hospital and in the said certificate issued by the medical board Hindu Rao Hospital his medical disability has been shown 30% permanent. But the claimant and his counsel has argued that given the disability the applicant is not able to do any work of driver or cleaner. He has relied on the judgments in this regard. He has relied on the judgment passed by the Hon‟ble High Court in the case titled as Rayapati Venkateshwar Rao vs. Manrtai Sambasiva Rao and anr. - cited at - II(2001)ACC 300. In the said case the disablement was assessed 20 to 25% but because he was cleaner hence it was a case of total loss of earning capacity as the work of cleaner is such that he may not be able to do that after this accident. Hence it was held that the loss of earning capacity was 100%. Being the identical case and this case being fully covered by the said judgment, I hold that the loss of earning capacity is total.

10. The respondent no. 1 Mr. Surjeet Singh has admitted the employer employee relationship as cleaner on vehicle no. HR 38-DG-4114. He also admitted that he met with an accident out of and in course of his employment near Varanasi on return trip from Kolkatta to Delhi. He also admitted that he was being the minimum wages amounting to Rs.5000/- along with food allowances. Accordingly his age factor is taken as 184.17.

11. In the given age, wage and disability the applicant is entitled to compensation as under:-

                184.17 X 2680 X 60               =       Rs.2,94,708/-
                    100 X 100"


6.(i)            On behalf of the appellant/Insurance Company it is very

strenuously argued that in the present case the respondent no.

1/claimant had failed to prove any employment of his as a driver with

the respondent no. 2. It is argued that no doubt in an unorganized

sector there cannot be written documents of employment, however,

the minimum that was required was some proof in the form of an FIR

showing that the respondent no. 1/claimant was driving the truck of

the respondent no. 2 and also that the respondent no. 1/claimant had a

Driving License, however, neither this FIR nor the Driving License

was filed and proved by the respondent no. 1/claimant.

(ii) It is argued by the appellant that there arises a substantial

question of law because no doubt provisions of the Employees

Compensation Act have to be read liberally in favour of a claimant,

however, reading the provisions liberally would not mean that any and

every case, even if the factum with respect to the accident is not

proved, has necessarily to be allowed by the Employees Compensation

Commissioner. It is argued that there must be some minimum

evidence which the Court will consider sufficient on preponderance of

probabilities for the claim petition to succeed by the claimant proving

the relationship of employer and employee as also happening of the

accident. It is argued that this is not so done by the respondent no.

1/claimant in this case and thus the impugned judgment is a result of

gross perversity and illegality raising a substantial question of law

under Section 30 of the Act for this appeal to be entertained and

allowed.

(iii) It is further argued on behalf of the appellant that para 9 of the

impugned judgment is an apology with respect to the requirement of

holding/proving of existence of the relationship of employer and

employee. It is also argued that there is a complete perversity

committed by the Employees Compensation Commissioner in

allowing the claim petition without the Employees Compensation

Commissioner at all discussing as to how an accident is proved to

have taken place without there even having proved existence of an

FIR of the incident in question and also that no driving license

admittedly was filed and proved by the respondent no. 1/claimant. It

is therefore argued that all the aforesaid illegalities and perversities in

the impugned judgment entitles the appellant to have the impugned

judgment of the Employees Compensation Commissioner set aside as

gross illegality and perversity raises a substantial question of law

under Section 30 of the Act.

7. It is also argued on behalf of the appellant that a time has

come that this Court must now take strict notice of various fraudulent

claims which are filed before the Employees Compensation

Commissioner and that some of the Employees Compensation

Commissioners without even adverting to the minimum requirements

of law and requisite proof of facts are allowing claim petitions and

possibly there are some unknown reasons as to why some of the

Employees Compensation Commissioners are allowing totally

misconceived claim petitions like has been done in the facts of the

present case. Appellant/Insurance Company also argues that a

criminal case be initiated against the respondent no.1/claimant for

filing the false and fraudulent claim petition, and which claim petition

has been filed and pursued by the respondent no. 1/claimant right

since the inception through Advocates who regularly appear before

various Employees Compensation Commissioners under the

Employees Compensation Act as also before this Court in cases under

the Employees Compensation Act. It is finally argued that since the

first appeal to this Court cannot be filed without first depositing the

compensation amount before the Employees Compensation

Commissioner, immediately on the deposit of the compensation, the

compensation is disbursed and that it is well highly impossible to seek

restitution if the insurance company succeeds in the appeal before this

Court.

8. Learned counsel for respondent no. 1/claimant on the

other hand has argued that the Employees Compensation Act has been

made for the benefit of the illiterate people and unorganized sector of

employment and which is clear from Section 22(3) of the Act which

provides that in fact a Employees Compensation Commissioner, for an

illiterate person who is not able to furnish application in writing, can

prepare or get prepared under his directions the claim application on

behalf of such claimant/applicant. Reliance is also placed under

Section 19(1) of the Act to argue that the Advocates of the respondent

no. 1/claimant have done the best in the facts of the present case and

they could have done nothing further and that the Employees

Compensation Commissioner under Section 19(1) of the Act can

decide on the liability with respect to compensation once the

respondent no. 2/employer agrees and admits the factum of the

relationship of employer and employee as also happening of the

accident. The Employees Compensation Commissioner it is argued

was hence justified only and simply on the basis of such admissions of

the respondent no.2/employer to hold that the respondent no.

1/claimant was entitled to compensation.

9. Learned counsel for the appellant in rejoinder has argued

a limited aspect that a mere admission of an employer with respect to

existence of relationship of employer and employee and happening of

an accident is not conclusive in all cases because if a simple admission

is to be taken as good enough and final then completely fraudulent and

collusive cases will be filed and allowed by the Employees

Compensation Commissioner and compensation be granted although

in reality the case is not one which is covered under the Employees

Compensation Act. It is argued that admissions of the employer have

to be seen depending on the facts of each case as to whether at all on

such admissions themselves the claim petition should or should not be

allowed.

10.(i) In my opinion, the impugned judgment of the Employees

Compensation Commissioner reflects many shortcomings which are

elevated to the level of gross perversity and illegality. The impugned

judgment shows complete non-application of mind by the Employees

Compensation Commissioner as to the requirement of existence of

minimum amount of evidence/proof being required with respect to

happening of the accident, the existence of relationship of employer

and employee and the fact that whether at all the respondent no.

1/claimant was or was not a driver, in a case where admittedly no

driving license has been pleaded to exist or has been filed and proved

by the respondent no. 1/claimant.

(ii) I have already reproduced above paras 9 to 11 of the impugned

judgment and these paras are an apology of the requisite reasoning and

discussion for arriving at conclusions of existence of a relationship of

employer and employee or happening of the accident etc. No doubt

employer employee relationship is proved easily with respect to

employment in an unorganized sector such as by a driver of the truck,

however, to prove such relationship at least the driver should have

been shown to be driving the truck belonging to the respondent no.

2/employer. Also, in the facts of this case happening of the accident

was required to be proved by filing of an FIR and which admittedly

has not been done in this case. It is also noted that originally the

respondent no. 1/claimant stated the date of accident as 14.11.2003

and which was thereafter got amended to the date of 10.3.2002. After

all, it is not as if the respondent no.1/claimant was not represented

right from the outset through Advocates and who have not even

bothered to check the date of accident from the medical documents

which had to be there with the respondent no. 1/claimant. However, I

would let this issue rest but by keeping in mind that the claim petition

itself has been filed after no less than seven years of the alleged date

of the accident. Of course, delays are easily condoned in cases under

the Employees Compensation Act, however, even after condoning the

delay the fact that there has occasioned a delay in filing of the claim

petition cannot be overlooked in the facts of the present case where

not only there is brought about a change of date as regards the

accident, but also that as stated above, and at the cost of repetition,

there is no FIR and no driving license of the respondent no.

1/claimant.

11. In my opinion therefore the Employees Compensation

Commissioner below has clearly committed a complete and gross

illegality and perversity by violating in fact the intendment of the

provisions of the Employees Compensation Act which are meant for

giving compensation only in genuine and deserving cases. The

Employees Compensation Commissioner could not have on the basis

only of admissions of respondent no. 2 held that there did take place

an accident and that the respondent no. 1 was the employee of

respondent no. 2. Of course, the driving license was in any case not

proved.

12. The incongruity in the case of the respondent no.

1/claimant and the gross illegality in the impugned judgment of the

Employees Compensation Commissioner does not stop here as stated

above but it goes further when we refer to the medical documents

which are filed on behalf of respondent no. 1/claimant as Ex.AW1/1

(colly.) before the Employees Compensation Commissioner. These

medical documents no doubt show treatment with respect to a fracture

in the leg of the respondent no. 1/claimant, however, it is seen that in

one of the medical documents Ex.AW1/1M the reason for the injury in

the leg is said to be „fall in the morning‟ i.e the reason for injury is not

stated to be any accident which occurred on 11.3.2002 but the injury is

on account of a fall in the morning of 11.3.2002. In the entire set of

documents Ex.AW1/1 (colly.) there is no reference whatsoever with

respect to respondent no. 1/claimant driving a truck or there being an

accident of the truck and in which the respondent no. 1/claimant was a

driver. The matter becomes further more curious because it is found

in the document Ex.AW1/1C that it is written that the respondent no.

1/claimant is a chronic alcoholic as also addicted to afeem/opium.

Therefore, in the entire set of medical documents or any of the

documents filed by the respondent no. 1/claimant it is seen that there

is not even a whisper of any accident having taken place on 10.3.2002,

much less as a driver of a truck and in fact the medical documents

show that the injured came to the hospital on account of „fall in the

morning‟ and also that the injured/respondent no. 1 was a chronic

alcoholic and was addicted to opium.

13. It is, therefore, seen that the judicial conscience of the

Employees Compensation Commissioner should not have been

convinced at all with respect to happening of an accident in the facts

of this case in the absence of an FIR, and he ought not to have been

convinced of the fact as alleged by the respondent no. 1/claimant that

he was a driver of the truck of the respondent no. 2 driving the same

on 10.3.2002 when an accident occasioned near Varanasi. Also, in

fact the Employees Compensation Commissioner possibly should

have laid emphasis on the medical documents which talk of injury

being suffered on account of „fall in the morning‟ read with the

observations in the medical document Ex. AW1/1C with respect to

respondent no. 1/claimant being an alcoholic and addicted to opium.

14. In the opinion of this Court clearly therefore the

Employees Compensation Commissioner has committed a gross

illegality and perversity in allowing the claim petition.

15.(i) The argument urged on behalf of the respondent no.

1/claimant that Section 22(3) of the Act helps the respondent no.

1/claimant is an argument completely without substance because

Section 22(3) of the Act comes into play when the claimant

approaches the Employees Compensation Commissioner without any

Advocate and consequently the Employees Compensation

Commissioner therefore gets the application for compensation

prepared under his supervision. Section 22(3) of the Act cannot come

to the aid of a claimant once from day one the claimant is instructed

and the compensation claim case is filed through Advocates who

regularly appear and argue cases under the Employees Compensation

Act.

(ii) Also no benefit can be given to the respondent no. 1/claimant of

Section 19(1) of the Act because all that this Section says is that in

default of an agreement between the parties the compensation case has

to be proved in accordance with law and which Section cannot be

interpreted to mean that admissions of an alleged owner should be

taken as enough with respect to proof of in every case of existence of

relationship of employer and employee and the happening of an

accident. In the facts of the present case the claim petition is a

complete fraud upon the appellant as also the provisions of the

Employees Compensation Act providing giving compensation to

deserving claimants and who have suffered injuries for which

compensation has to be granted under the relevant provisions of this

Act, and mere „admissions‟ could not have entitled allowing of the

claim petition in the present case.

16. In view of the above discussions, the impugned judgment

of the Employees Compensation Commissioner dated 27.11.2015 is

set aside and the claim petition of the respondent no.1/claimant shall

stand dismissed.

17. At the time of issuing notice in this appeal a learned

Single Judge of this Court vide order dated 3.2.2016 directed that 50%

of the amount be released to the respondent no. 1/claimant on

furnishing his undertaking, and if this amount is already released to

respondent no. 1/claimant then the Employees Compensation

Commissioner now should enforce the undertaking of the respondent

no.1/claimant and seek refund of the 50% amount which has been

released to the respondent no. 1/claimant.

18. In the facts of the present case I exercise my powers

under Section 340 Cr.P.C. and direct the Registrar General of this

Court to draw out an FIR against the fraudulent and collusive claim

petition which has been filed by the respondent nos. 1 and 2 herein

and in terms of the present judgment the FIR so drawn be sent to the

Competent Court for prosecution of the respondents herein.

19. I also direct that a copy of this judgment along with the

impugned judgment of the Employees Compensation Commissioner

dated 27.11.2015 be sent to the Minister of Law, Government of

National Capital Territory of Delhi (GNCTD), as also the Law

Secretary, GNCTD, to show as to how certain Employees

Compensation Commissioners appointed by GNCTD are acting in a

complete perverse fashion and allowing completely undeserving claim

petitions which are in fact the result of collusion and an endeavor to

defraud the insurance companies of their moneys. On receipt of the

judgment by the Law Minister as also by the Law Secretary of

GNCTD, an affidavit shall be filed on behalf of these persons by

authorized persons that the relevant departments have taken note of

the present judgment as also of the concerned Employees

Compensation Commissioner who in the present case has completely

and most illegally and perversely allowed a totally undeserving claim

petition. Affidavit in this regard be filed within a period of six weeks

from today.

AUGUST 17, 2017/ AK                        VALMIKI J. MEHTA, J