Oriental Insurance Company ... vs Mohd. Anwar & Anr.
2017 Latest Caselaw 4315 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 424/2016

%                                                    22nd August, 2017

ORIENTAL INSURANCE COMPANY LIMITED        ..... Appellant
                 Through: Mr. A.K. Soni and Mr. Pavan
                          Kumar, Advocates.

                          versus

MOHD. ANWAR & ANR.                                    ..... Respondents

                Through:                 Mr. Saurabh Kansal, Advocate
                                         for R-2.

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 under Section 30 of the Employees

Compensation Act, 1923 is filed by the Oriental Insurance Company

Limited impugning the judgment of the Employees Compensation

Commissioner dated 6.5.2016. By the impugned judgment the

Employees Compensation Commissioner has allowed the claim

petition filed by the respondent no. 1/claimant and awarded

compensation to the respondent no. 1/claimant for a sum of

Rs.8,70,576/- along with interest at 12% per annum for the period of

30 days after the date of accident till the date of deposit.

2. Before I turn to the discussion on the facts of this case, I

take note that the counsel for the appellant/insurance company has

argued before this Court that this Court has recently on 17.8.2017 in

FAO No. 47/2016 titled as Oriental Insurance Company Limited Vs.

Baldev Singh and Another, while allowing the appeal, directed

criminal prosecution of the claimant and also sent copies of this

Court‟s judgment dated 17.8.2017 to the Law Secretary of the

Government of National Capital Territory of Delhi (GNCTD) as also

to the Law Minister of GNCTD, and it is argued by the appellant that

the present is also one such case where similar directions, as also

additional directions are called for. It is argued that in fact there are a

chain of illegal cases which have been filed before different

Employees Compensation Commissioners, and there is an unhealthy

and a questionable system which is operating whereby Employees

Compensation Commissioners who have no territorial jurisdiction not

only take up such cases but allow the totally unfounded claim

petitions, although on record even no accident is proved to have

happened. Learned counsel for the appellant has argued that it is high

time that this Court directs the GNCTD to set up an Enquiry

Committee and examine orders and judgments which are passed by

the Employees Compensation Commissioners with respect to claims

for compensation for injuries caused by accidents which have not

taken place within the territorial jurisdiction of the Employees

Compensation Commissioners at Delhi. It is argued that an Enquiry

Committee is required to be set up by the GNCTD because not only

Insurance Companies are loosing crores and crores of rupees in

fraudulent claims, but that certain judgments of the Employees

Compensation Commissioners is putting the credibility of the entire

system into question.

3.(i) The facts of the present case are that the respondent no.

1/claimant filed the subject claim petition pleading that he was

employed by the respondent no. 2 herein M/s Swati (sic. Swasti)

Structure & Concretes as a driver to drive the vehicle being TATA

Tipper bearing no. UK 08V 4577. It was pleaded in the claim petition

that on 8.3.2013 the respondent no. 1/claimant had received grievous

injuries in an accident arising out of and during the course of

employment. It was pleaded in the claim petition that on 8.3.2013 the

respondent no. 1/claimant was on duty and a mechanical defect

cropped up in the TATA Tipper vehicle. It was pleaded that the

respondent no. 1/claimant was to get it corrected and while doing so

he was hit by another vehicle near Lal Mandir. It was further pleaded

that the respondent no. 1/claimant informed Sh. Anil Sharma the

employee of the respondent no.2/employer about the accident, and that

respondent no. 1/claimant was first taken to Vadhera Hospital and

then he was got admitted in Luthra Hospital and thereafter at Sushrut

Trauma Centre, Ranipur More, Haridwar, where he was operated and

two plates were fitted in his left leg. The subject claim petition is

therefore filed pleading that at the time of the accident the vehicle

TATA Tipper was covered under the insurance policy with an

additional premium paid for coverage under the Employees

Compensation Act.

(ii) I note that as per the memorandum of parties of the claim

petition the respondent no. 1/claimant was said to be an ordinarily

resident of Jwalapur, Haridwar, Uttrakhand, and only a „present

address‟ at Delhi was given of 249, Sukhdev Vihar, Wazipur Slam

Area, Delhi - 110052. The registered office of the respondent no. 2

herein, respondent no. 1 before the Employees Compensation

Commissioner i.e employer, admittedly is also situated at Haridwar in

Uttrakhand. Therefore, it is the undisputed position emerging on

record that respondent no. 1/claimant was ordinarily a resident of

Haridwar, the registered office of the employer was situated at

Haridwar and even the accident also took place at Haridwar. This

aspect would be one relevant aspect to show the fraudulent nature of

claim petition which was illegally filed in Delhi and to decide which

claim petition the Employees Compensation Commissioner took aid

apparently of the provision of the Proviso to Sub-Section (1) of

Section 21 of the Employees Compensation Act, however which

provision, as discussed below, does not invest an Employees

Compensation Commissioner at Delhi with territorial jurisdiction.

4. The claim petition itself was vague, and in fact silent, as

regards the place of actual happening of the accident, which has

emerged from the records to have occurred at Haridwar. More

importantly, there was ambiguity in the claim petition as to what was

the accident which had occurred and how had the accident occurred.

In order to show the above aspects the entire claim petition is being

reproduced immediately below. Claim petition is also reproduced

verbatim because in the evidence which is led on behalf of the

respondent no. 1/claimant a totally new case is made out, as

distinguished from the averments of the claim petition. In the

evidence led on behalf of the respondent no.1/claimant there is

deposition of the accident happening on account of the respondent no.

1/claimant falling off a two-wheeler belonging to the Manager of the

employer/respondent no. 2 herein and not on account of the vehicle in

which the respondent no.1/claimant was sitting being hit by another

vehicle as stated in the claim petition. The claim petition, and the

evidence which is led of EW-2 Sh. Anil Sharma, read as under:-

Claim petition:-

"1. That the applicant Mohd. Anwar, S/o Mohd. Ayub, an Employee, was employed as a driver on vehicle bearing no. UK-08V-4577 TATA Tipper owned by respondent no. 1 and on 08-03-2013 he received grievous injuries out of and during the course of employment. On 08-03-2013he was on duty on the said vehicle and a mechanical defect cropped in the vehicle. The applicant was to get it corrected and while doing so he was hit by another vehicle near Lal Mandir. Due to this accident applicant sustained grievous injury on his left leg. Thereafter applicant informed to Mr. Anil Sharma about his accident and Mr. Anil Sharma reached the accident spot. He was taken to Vadhera Hospital, by an auto rikshaw and first aid was given there. Next day he was got admitted in Luthra Hospital but due to his serious condition he was taken to Sushrut Trauma Centre, Ranipur More, Haridwar. He remained there for 1 week and operated there 2 plates were fitted in his left leg. He has incurred a substantial amount on his treatment. In this accident the applicant has been disabled and he is not in a position to do any work of his capacity and has become

100% disabled for the purpose of his employment as a driver as his left leg is not working properly. His earning capacity has been totally reduced.

2. That the vehicle bearing No. UK-08V-4577 TATA Tipper was owned by respondent no. 1 at the time of accident and it was insured with respondent no. 2 i.e. M/s. The Oriental Insurance Company Ltd., vide policy no. 252900/31/2013/1992 for the period from 30-08-2012 to 29.08.2013 and an additional premium was charged by the respondent no. 2 from respondent no. 1 under E.C. Act.

3. That the applicant was drawing wages @ Rs. 7750/- per month and Rs. 40/- per route total 12000/-.

4. That the applicant was aged 38 years at the time of his accident.

5. That the Respondent No. 1 is having the notice of the accident since the day of its occurrence and the Insurance Co. has been informed immediately after the accident took place. Even otherwise, a notice under section 10 of the E.C. Act has been served upon the respondent no. 1.

6. That the workman was driver by profession and he has become totally disabled as law settled by the Hon‟ble Supreme Court of India in Re: Pratap Narain Singh vs. Srinivasa Sabata cited at 1976 ACJ 141.

7. That the applicant/claimant was employed on the vehicle and the accident caused out of and during the course of his employment. The Applicant is entitled to compensation to the extent of 100% disability and as per section 4(1) (c) & 4(1) (d) of the Employee‟s Compensation Act he is entitled for temporary and permanent disablement along with interest @ 12% p.a. from the date of accident till realization and penalty to the extent of 50%.

PRAYER :

It is, therefore, most respectfully prayed that the Respondents be directed to deposit the amount of compensation as per Employee‟s Compensation Act. The applicant is also entitled to other relief as permissible for medical expenses. The Hon‟ble court is further prayed to pass any other and further award as may be deem fit and proper in the circumstances of the case including interest and penalty etc."

Evidence of EW2:-

"EW2 Statement of Anil Sharma S/o Sh. Lalji Sharma R/o Shiram Nagar, Jwala Pur, Haridwar.

On S.A.

I have come here in the case of Mohd. Anwar as a witness. I know Mohd. Anwar. Mohd. Anwar was employed M/s Swasti Structure & Concretes. He was employed as a heavy vehicle driver. He was employed as driver on UK-08V-4573 TATA. The vehicle was broken down on its way and the driver Mohd. Anwar was going to bring Mechanic and while being back he met with accident he sustained injury in that accident. I state that the injury cause to Mohd. Anwar was out of during the course of

employment. The applicant was drawing Rs.7750/- per month and Rs.40/- per trip as additional remuneration.

XXXX by Smt. Umesh Kaushal The accident of Mr. Mohd Anwar was caused by two wheeler. The two wheeler on which applicant met with an accident while taking mechanic belongs to manager of the R1 and he fell down from the Scooter while he was going bring Mechanic and got injury. The Scooter was not hot by any vehicle at the time of accident. I took him to Hospital after his accident. I was informed by the applicant on Telephone and I rush to the place of accident and took him in a vehicle and their after Hospital. I had give information in the company through Phone that Mohd. Anwar met an accident and I am going to see him. I am working as a Driver. M/s Swasti Structure & Concretes. At present I am not working in M/s Swasti Structure & Concretes but working in some other organization at Dehradun. I am not a Summon witness but I have come at the instance of the applicant. I have not seen the accident at the time of its occurrence but immediately thereafter I saw it. It is wrong to suggest that I have come make statement in favor of Mohd. Anwar being an known person to me vol. in fact I have come here to tell the truth and rather he was got admitted by me in the Hospital after the accident." (underlining added)

5. Clearly therefore, it is seen that there is a clear

inconsistency between the facts as regards happening of the accident

as stated in the claim petition wherein it was pleaded that the

respondent no.1/claimant was hit by a vehicle and the evidence as led

of EW-2 wherein it is denied that the respondent no.1/claimant was hit

by a vehicle and a new case is set up for the first time of the

respondent no. 1/claimant falling from a scooter belonging to the

Manager of the employer and which he was riding for going to a place

to bring a mechanic for repairing of the TATA Tipper. It also

becomes clear from the claim petition filed and the evidence led by the

respondent no. 1/claimant that injury was caused to the respondent

no.1/claimant not while driving the vehicle TATA Tipper which was

insured under the subject insurance policy with the appellant/insurance

company containing an additional clause of compensation under the

Employees Compensation Act, because the injury to the respondent

no.1/claimant is deposed to as having been occasioned on account of

falling of the respondent no. 1/claimant from a two-wheeler scooter

for which admittedly there is no coverage pleaded to exist under the

subject insurance policy.

6. The Employees Compensation Commissioner framed the

following issues:-

"i) Whether employee-employer relationship existed between petitioner and respondent?

ii) Whether accident occurred out of and in the course of employment with the respondent?

iii) If so, what relief petitioner is entitled and what directions are necessary in this regard?"

7. The issues framed show that no issue of territorial

jurisdiction was framed by the Employees Compensation

Commissioner although the appellant/insurance company in its written

statement in para 12 had specifically denied the territorial jurisdiction

of the Employees Compensation Commissioner.

8. Respondent no. 1/claimant led evidence and proved

documents being disability certificate as Ex.AW1/1, medical treatment

documents and bills as Ex.AW1/2, insurance policy as Ex.AW1/3 and

driving license as Ex. AW1/4.

9. The proceedings before the Employees Compensation

Commissioner, and which ultimately culminated in the impugned

judgment, shows that certain orders were passed by the Employees

Compensation Commissioner on 11.2.2015, 11.3.2015 and 9.7.2015

on the aspect of lack of territorial jurisdiction and for which reason the

Employees Compensation Commissioner had issued notice to the

Employees Compensation Commissioner at Haridwar allegedly in

view of Proviso to Sub-Section (1) of Section 21 of the Employees

Compensation Act. The order dated 9.7.2015 passed by the Employees

Compensation Commissioner records that notice has been served upon

the Employees Compensation Commissioner at Haridwar but that no

report has been received from the Employees Compensation

Commissioner at Haridwar. The issue of territorial jurisdiction

existing of the Employees Compensation Commissioner has however

not been decided by the order dated 9.7.2015 and this issue is also not

decided in terms of the impugned judgment of the Employees

Compensation Commissioner dated 6.5.2016. The impugned judgment

as per its para 4 shows that the objection of territorial jurisdiction has

been decided by the Employees Compensation Commissioner by an

order dated 21.8.2014, but, in the sequence of orders passed by the

Employees Compensation Commissioner, as seen from the original

file, it is seen that there is no order dated 21.8.2014 which is found to

be existing in the file of the Employees Compensation Commissioner.

It is also seen that no order of the Employees Compensation

Commissioner shows fixing of the case for passing of the order on

territorial jurisdiction on 21.8.2014. It is further noted that not only

there is no order dated 21.8.2014 there is no order passed dated

21.8.2015 assuming that in the impugned judgment para 4 the year has

been wrongly typed as 2014 instead of 2015. Sequence of orders in

the file of Employees Compensation Commissioner since the

beginning till November 2015 shows that orders being passed by the

Employees Compensation Commissioner are dated 20.1.2014,

24.2.2014, 26.3.2014, 15.5.2014, 5.6.2014, 6.8.2014, 18.9.2014,

26.11.2014, 11.2.2015, 11.3.2015, 23.4.2015, 21.5.2015, 9.7.2015,

27.7.2015, 17.8.2015, 17.9.2015, 5.11.2015 and in none of these

orders the issue of territorial jurisdiction is decided. For the sake of

convenience, Section 21 of the Employees Compensation Act dealing

with the requirement of existence of territorial jurisdiction is

reproduced as under:-

"21. Venue of proceedings and transfer.-

(1) Where any matter under this Act is to be done by or before a Commissioner, the same shall, subject to the provisions of this Act and to any rules made hereunder, be done by or before the Commissioner for the area in which-

(a) the accident took place which resulted in the injury; or

(b) the employee or in case of his death, the dependant claiming the compensation ordinarily resides; or

(c) the employer has his registered office:

Provided that no matter shall be processed before or by a Commissioner, other than the Commissioner having jurisdiction over the area in which the accident took place, without his giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned:

Provided further that, where the employee, being the master of a ship or a seaman or the captain or a member of the crew of an aircraft or an employee in a motor vehicle or a company, meets with the accident outside India any such matter may be done by or before a Commissioner for the area in which the owner or agent of the ship, aircraft or motor vehicle resides or carries on business or the registered office of the company is situate, as the case may be.

(1A) If a Commissioner, other than the Commissioner with whom any money has been deposited under section 8, proceeds with a matter under this Act, the former may for the proper disposal of the matter call for transfer of any records or moneys remaining with the latter and on receipt of such a request, he shall comply with the same.

(2) If a Commissioner is satisfied that any matter arising out of any proceedings pending before him can be more conveniently dealt with by any other Commissioner, whether in the same State or not, he may, subject

to rules made under this Act, order such matter to be transferred to such other Commissioner either for report or for disposal, and, if he does so, shall forthwith transmit to such other Commissioner all documents relevant for the decision of such matter and, where the matter is transferred for disposal, shall also transmit in the prescribed manner any money remaining in his hands or invested by him for the benefit of any party to the proceedings:

Provided that the Commissioner shall not, where any party to the proceedings has appeared before him, make any order of transfer relating to the distribution among dependants of a lump sum without giving such party an opportunity of being heard:

(3) The Commissioner to whom any matter is so transferred shall, subject to rules made under this Act, inquire there into and, if the matter was transferred for report, return his report thereon or, if the matter was transferred for disposal, continue the proceedings as if they had originally commenced before him.

(4) On receipt of a report from a Commissioner to whom any matter has been transferred for report under sub-section (2), the Commissioner by whom it was referred shall decide the matter referred in conformity with such report.

(5) The State Government may transfer any matter from any Commissioner appointed by it to any other Commissioner appointed by it." (underlining added)

10. Let me firstly turn to the aspect of territorial jurisdiction.

As per Section 21 of the Employees Compensation Act only that

Employees Compensation Commissioner has territorial jurisdiction to

decide the claim petition where the accident takes place resulting in

injury or where the employee ordinarily resides or where the employer

has his/its registered office. In the present case, the accident did not

take place at Delhi but took place at Haridwar, the respondent no.

1/claimant was ordinarily a resident of Haridwar and not of Delhi and

the employer/respondent no. 2 herein also had its registered office at

Haridwar. The Employees Compensation Commissioner at Delhi

therefore did not have any territorial jurisdiction to entertain and

decide the claim petition, and this is all the more so because the

respondent no.1/claimant did not plead or prove that he was an

ordinary resident of Delhi and he only set up a case of being in Delhi

„at present‟. The Proviso to Section 21(1) of the Employees

Compensation Act provides for an Employees Compensation

Commissioner not having jurisdiction to decide a claim petition filed

before him because the accident did not happen within his jurisdiction,

yet, this Proviso does empower the Employees Compensation

Commissioner to decide a claim petition if the employee is found to be

ordinarily residing within the territorial jurisdiction limits of the

Employees Compensation Commissioner or if the employer has his/its

registered office within the territorial jurisdiction of the Employees

Compensation Commissioner where the claim petition is filed. The

purpose of the Proviso to Sub-Section (1) of Section 21 is however not

to clothe the Employees Compensation Commissioner with

jurisdiction simply by issuing notice to the concerned Employees

Compensation Commissioner where the accident took place, although

otherwise the Employees Compensation Commissioner does not have

territorial jurisdiction because neither the employee ordinarily resided

at Delhi nor the employer was having his/its registered office at Delhi.

Therefore, the notices which have been issued by the Employees

Compensation Commissioner in this case, and which has resulted in

the notice being served on the Employees Compensation

Commissioner at Haridwar in terms of the order dated 9.7.2015, is

clearly an endeavor by the Employees Compensation Commissioner in

the present case to overreach the provisions of Employees

Compensation Act and to clothe himself with territorial jurisdiction

and which the Employees Compensation Commissioner never had.

11. Also, as already stated above, there is no order which

exists in the file deciding that the Employees Compensation

Commissioner at Delhi had territorial jurisdiction to decide the claim

petition and how. Clearly therefore a gross illegality and perversity

has been committed by the Employees Compensation Commissioner

by allowing the claim petition although the Employees Compensation

Commissioner at Delhi did not have territorial jurisdiction with the

fact that no order exists in the file of the Employees Compensation

Commissioner holding that the Employees Compensation

Commissioner at Delhi had territorial jurisdiction. Accordingly, on

this short ground itself a substantial question of law arises and the

impugned judgment is liable to be and is accordingly set aside.

12. The next issue is as regards the aspect that the

appellant/insurance company as per its written statement had

specifically denied the happening of any accident. Even the employer

being the respondent no. 2 herein called the accident as an „alleged‟

accident and in fact in reply to para 1 of the claim petition denied that

any accident in fact happened. The record of the Employees

Compensation Commissioner shows that admittedly no FIR has been

filed and proved with respect to the accident although the case pleaded

of the respondent no. 1/claimant as per the claim petition was that he

was traveling when he met with an accident with a vehicle coming

from the other side. Employees Compensation Commissioner has in

terms of para 8 of its judgment however held that the accident did

happen and this para 8, ignoring lack of existence of an FIR and the

inconsistencies noted in paras 4 and 5 above, is reproduced as under:-

"8. The case of the applicant is that he was employed as driver on vehicle bearing No. UK-08V-4577 - TATA. The said vehicle came in

break down and it was to be corrected by mechanical process. On 08-03- 2013 the applicant set out for bringing mechanic. On the way he was hit by another vehicle and he sustained injuries. He gave a telephone call to the employer. One employee was deputed to take him to hospital. One Shri Anil Sharma came and took him to the hospital and he was got admitted. Respondent No. 1 - the employer filed its written statement. In the written statement filed by the said respondent it has been admitted that the applicant was employed with them as Driver. He sustained injury in an accident. Other employees were deputed to take him to hospital. Shri Anil Sharma who is stated to take him to hospital came and he gave his statement before this court. He was cross examined by the counsel for the insurance. He categorically stated that the applicant who was a driver of vehicle no. UK- 08V-4573 which got break down and the petitioner was gone to bring mechanic on the scooter of manager of respondent no. 1 and while coming back the said scooter met with an accident in which applicant received serious injury and after being informed to the management he went to the accident site and took him to the hospital and he has deposed before the court as witness as he knew the applicant. The relevant portion of his cross examination is as under:

"The accident of Mr. Mohd. Anwar was caused by two wheeler. The two wheeler on which applicant met with an accident while taking mechanic belongs to manager of the R1 and he fell down from the scooter while he was going to bring mechanic to repair the vehicle and got injury ......"

The stand taken by respondent no. 1 also confirms the occurrence of accident out of and during the course of employment. This be so the factum of employment injury is proved and the burden of claimant is discharged by that stand. Thereafter the fight remains between respondent no. 1 and respondent no. 2. As per documents available and the response of the insurance company the vehicle being insured they are liable to pay. Had there been anything contrary they ought to have brought that by way of contra evidence. The counsel for the applicant has relied on the judgment of the Hon‟ble Supreme Court in the case titled as - ManjuSarkar vs. MsbishMiah - cited 2014 ACJ 1927. The case is covered by the citation. Hence the said issue is decided in favor of the petitioner and against the respondents."

13. The impugned judgment thus grossly illegally and

perversely holds that the accident took place though there is no FIR

with respect to the happening of the accident even though the

respondent no. 1/claimant is pleaded to have been injured in an

accident when he was hit by a vehicle coming from the other

direction. The inconsistencies detailed in paras 4 and 5 above between

the pleading and evidence also leads this Court to hold that no

accident happened on 8.3.2013. There is also no evidence of any eye

witness that any accident took place as alleged by the respondent no.

1/claimant on 8.3.2013. Even the medical documents filed and proved

on record as Ex.AW1/2 do not show happening of any accident. In

fact the first document being Ex.AW1/2 shows that as on 11.3.2013

the respondent no. 1/claimant could have been suffering from HIV.

Clearly, therefore, the claim petition filed by the respondent no.

1/claimant was a completely fraudulent claim petition and that in fact

no accident ever occurred on 8.3.2013 as was alleged by the

respondent no. 1/claimant. The judgment of the Employees

Compensation Commissioner therefore holding that accident occurred

resulting in injuries to the respondent no.1/claimant is grossly illegal

and perverse, and thus there arises a substantial question of law, and

hence the present appeal is accordingly allowed by holding that no

accident at all took place as alleged by the respondent no. 1/claimant.

14. There is yet another reason why the claim petition filed

by the respondent no. 1/claimant had to be dismissed. This was

because the insurance policy coverage under the Employees

Compensation Act was pleaded only with respect to the TATA Tipper

and there was no insurance policy coverage pleaded with respect to

the two-wheeler in which the respondent no. 1/claimant was

travelling. It is not the case of the respondent no. 1/claimant that the

two-wheeler scooter in which he was travelling and which allegedly

met with an accident or that if there was no accident with another

vehicle but only there was a fall from the two-wheeler, and which

two-wheeler had a coverage under an insurance policy, much less the

subject insurance policy. I, therefore, fail to understand as to how at

all the Employees Compensation Commissioner in this case could

have allowed the claim petition on the basis of the insurance policy

under the Employees Compensation Act with respect to TATA Tipper

when admittedly there is no accident with respect to TATA Tipper

vehicle. On this ground alone also the impugned judgment suffers

from gross illegality and perversity and accordingly it is set aside by

holding that there was no insurance policy covering the fall from or

accident happening with the two-wheeler scooter in which the

respondent no.1/claimant was allegedly travelling. It has thus to be

held that the appellant/insurance company has been illegally held to be

liable for payment of compensation under the Employees

Compensation Act.

15. From the aforesaid discussion the following aspects

emerge:-

(i) No accident at all took place on 8.3.2013 as alleged by the

respondent no. 1/claimant.

(ii) Even if accident did take place, the accident took place not of

the TATA Tipper which was covered under the insurance policy

having coverage for payment of compensation under the Employees

Compensation Act and that the accident took place when the

respondent no. 1/claimant was traveling on a two-wheeler scooter and

with respect to which no insurance policy is stated to exist and having

coverage under the Employees Compensation Act.

(iii) Employees Compensation Commissioner had no territorial

jurisdiction to decide the subject claim petition. The Employees

Compensation Commissioner did not pass an order on territorial

jurisdiction despite the objection of the appellant/insurance company.

The Employees Compensation Commissioner in fact misdirected the

proceedings by wrongly acting under the provision of the First Proviso

to Section 21 (1) of the Employees Compensation Act and which was

not at all applicable.

16. In the judgment delivered by this Court on 17.8.2017 in

FAO No.47/2016 in the case of Oriental Insurance Company Limited

Vs. Baldev Singh and Another, I have set aside the impugned

judgment which has been passed by the Employees Compensation

Commissioner, and the Employees Compensation Commissioner in

this case is also the same Employees Compensation Commissioner.

Even the Advocates who have appeared for the respondent

no.1/claimant in FAO No.47/2016 in this Court as also before the

Employees Compensation Commissioner in the said case, are the same

Advocates M/s R.K. Nain & Associates who have appeared for the

respondent no.1/claimant before this Employees Compensation

Commissioner in this case. In spite of service of the respondent

no.1/claimant for today no one appears for the respondent no.

1/claimant and the reasons for non-appearance of the respondent

no.1/claimant are thus not far too seek as to why respondent

no.1/claimant is not represented by his Advocate today in this Court.

17. While allowing FAO No.47/2016, I had directed drawing

out a complaint by the Registrar General of this Court under Section

340 Cr.P.C and sending the complaint to the competent court of

jurisdiction. The relevant para of the judgment dated 17.8.2017 in

FAO No.47/2016 is para 18 and this para 18 reads as under:-

"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 a complaint 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 complaint so drawn be sent to the Competent Court for prosecution of the respondents herein."

18. I have also directed by para 19 of the judgment dated

17.8.2017 in FAO No.47/2016 that the judgment dated 17.8.2017 be

put before the Minister of Law of GNCTD as also the Law Secretary

of the GNCTD and this para 19 reads as under:-

"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."

19. While allowing this appeal I pass the same directions in

this case as per paras 18 and 19 of the judgment dated 17.8.2017 in

FAO No. 47/2016 except that the complaint which will be made in

this case will only be against the respondent no.1/claimant in this case.

In fact on account of the arguments urged on behalf of the

appellant/insurance company that it is high time that for preventing

further frauds upon the insurance companies, that an Enquiry

Committee be constituted, I direct that a one person Enquiry

Committee be constituted by the GNCTD to look into the judgments

which are passed by any and every Employee Compensation

Commissioner for the last three years in which the Advocates for the

claimants are the Advocates M/s R.K. Nain and Associates and where

as per the claim petition and/or defence the Employees Compensation

Commissioners at Delhi would have no territorial jurisdiction on

application of Section 21(1) of the Employees Compensation Act.

Enquiry Committee be headed by a retired Judge/ retired Chief Justice

of this Court and who would be nominated by the competent authority

in the GNCTD within four weeks from today. Enquiry Committee will

have extensive jurisdiction to examine if any offence has been

committed by any person as per laws applicable. The Enquiry

Committee will have powers to call for all necessary documents from

any and every person in order to determine the issue as to whether any

fraud, cheating, mis-appropriation etc etc or any other offence(s) have

been committed by any person(s). The GNCTD is also requested that

it should co-operate with the Enquiry Committee so that the Enquiry

Committee should give its report as expeditiously as possible and

preferably within six months of the constitution of the Enquiry

Committee. Remuneration of the Enquiry Committee be fixed by the

GNCTD in consultation with the retired Judge/Chief Justice who will

be appointed as the one person committee. If the Enquiry Committee

of the retired Judge/Chief Justice of this Court comes to a finding of

existence of culpability of any person with respect to any offence

which is committed, then, necessary action will be taken by the

GNCTD against all such persons in accordance with law and within a

period of six weeks of the report being submitted by the Enquiry

Committee.

20. In the present case, the respondent no.1/claimant has been

allowed to withdraw 50% of the compensation which has been

awarded by the Employees Compensation Commissioner in terms of

the impugned judgment dated 6.5.2016. Since the judgment dated

6.5.2016 is set aside, hence, the Employees Compensation

Commissioner will now take appropriate action to recover the amount

received by the respondent no.1/claimant under the impugned

judgment dated 6.5.2016 for restituting the same to the

appellant/insurance company inasmuch as the 50% compensation was

disbursed to the respondent no.1/claimant on his furnishing an

undertaking to restitute the amount in case the appellant/insurance

company succeeds in the present appeal.

21. At the request of the appellant/insurance company, I also

direct that the Employees Compensation Commissioner in all cases

which are decided by them under the Employees Compensation Act will

not release the compensation which is deposited by the aggrieved party

before the Employees Compensation Commissioner(s) till an expiry of

the period of six weeks from deposit of the compensation. This direction

is passed noting that the awarded compensation has to be deposited as a

pre-condition for filing of an appeal in this Court by an aggrieved party

under Section 30 of the Employees Compensation Act, and that where

the compensation is disbursed and the appeal is allowed, it then becomes

impossible in many cases to recover the compensation from the

claimants who have succeeded before the Employees Compensation

Commissioner. For implementation of the direction in this para copy of

the present judgment be circulated by the GNCTD to all the Employees

Compensation Commissioners.

22. Since only 50% amount has been released to the respondent

no.1/claimant, the balance 50% amount lying with the Employees

Compensation Commissioner be refunded to the appellant/insurance

company within four weeks from today.

23. The appeal is allowed and disposed of in terms of the

aforesaid observations. List on 11th December, 2017 for filing of the

Status Report by the GNCTD with respect to reporting of the

appointment of and progress before the Enquiry Committee.

AUGUST 22, 2017/ AK/Ne                       VALMIKI J. MEHTA, J