Adesh Jain & Ors. vs Top Singh
2017 Latest Caselaw 2146 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 205/2017

%                                                     2nd May, 2017

ADESH JAIN & ORS.                                        .... Appellants
                          Through:       Mr. Sugriva Dubey, Advocate.
                          versus
TOP SINGH                                                ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No. 16713/2017 (delay)

For the reasons stated in the application, delay in filing the

appeal is condoned. CM stands disposed of.

C.M. No. 16714/2017 (exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

FAO No. 205/2017 & CM No. 16712/2017 (stay)

1. This first appeal is filed under Section 30 of the

Employee's Compensation Act, 1923 impugning the judgment of the

Employee's Compensation Commissioner allowing the claim petition

filed by the respondent herein. Claim petition was filed by the

respondent on account of his suffering injury due to electrocution

while working at the site.

2. The facts of the case are that the respondent filed the

claim petition pleading that he was an employee of appellant nos. 2 and

3, and who were awarded a contract for doing POP work at the site of

the appellant no.1. Respondent pleaded that he was working as a

helper for doing POP work of appellant nos. 2 and 3 since 21.7.2015

on wages of Rs.200/- per day. On 25.7.2015 respondent suffered

injury due to electrocution while working at the site 641-C, Loni Road,

Ram Nagar, Delhi. He was taken to the GTB Hospital by co-workers.

Since appellant nos. 2 and 3 failed to pay the compensation in spite of

demand notice dated 30.5.2016, the claim petition was hence filed.

3. Appellants no. 1 to 3 were the respondent nos. 1 to 3 in

the claim petition filed before the Employee's Compensation

Commissioner. Appellant nos. 2 and 3 were the employers of the

claimant, respondent herein. It is curious that all the appellants filed a

common written statement i.e owner of the site and contractors filed a

common written statement. It was denied that there was a relationship

of employer and employee between the respondent herein and the

appellant nos. 2 and 3. It was also pleaded by the appellants that due to

humanitarian grounds appellants nos. 2 and 3 extended help of

Rs.25,000/- to Rs.30,000/- for treatment of the respondent herein.

Accordingly, they prayed for the claim petition to be dismissed.

4. Before the Employee's Compensation Commissioner

respondent proved all the documents being the record of the hospital,

complaint before the Asst. Labour Commissioner, FIR, Disability

Certificate etc etc and which are referred to in para 4 of the impugned

judgment and which para reads as under:-

"4. The Claimant Sh. Top Singh has examined himself as witness and he has filed his evidence by way of affidavit (Ex.CW1/A) alongwith documents namely Copy of treatment record of GTB Hospital in original (Ex.CW1/1 Colly 07 pages), Copy of complaint to Police Department alongwith postal receipt (Ex.CW1/2 and CW1/3 to CW1/5) in original, Copy of complaint filed before Asst. Labour Commissioner in original (Ex. CW1/6), Copy of FIR No.0108 dated 19.03.2016 (Ex.CW1/7), Disability Certificate of Claimant in original (Ex.CW1/8) and copy of demand notice dated 30.05.2016 in original alongwith postal receipt (Ex.CW1/9 to CW1/12), Chief examination of the Claimant/CW1 is in the line with the averments made by the Claimant in his Claim Petition."

5. Respondent/claimant also deposed on oath and supported

his claim petition. Respondent/claimant also summoned a witness Sh.

Rakesh Kumar, Head Constable to prove the FIR as Ex. CW2/X.

Respondent/claimant also summoned Sh. S.K. Gupta, Inspecting

Officer, Labour Department, Govt. of NCT of Delhi as CW-3 and who

proved the complaint filed by the respondent/claimant before the

Labour Department as Ex.CW3/X. CW-2 and CW-3 were not cross-

examined by the appellants.

6. In the cross-examination of the appellant no.2 he admitted

that he had been awarded a job of POP work at the site of the appellant

no.1 and during the period from 21.7.2015 to 25.7.2015, at the site at

641-C Loni Road, Ram Nagar, Delhi labour of appellant no.2 was

working. When a specific question was put to the appellant no.2 who

deposed as RW2W1 that the respondent/claimant was also working at

the site 641-C, the appellant no.2 did not give answer to this question.

It was also admitted by the appellant no.2 that he did not maintain any

record of payment of wages to his workers and that he had given an

amount of Rs.25,000/- to Rs.30,000/- to the respondent/claimant for his

treatment. Appellant no.2 also admitted the document Ex.CW3/Y

which bears his signatures and which was a document submitted before

the Inspecting Officer that the appellant no.2 would settle with the

respondent/claimant, though surprisingly, the appellant no.2 contended

that though his signatures appeared on the document Ex.CW3/Y, it was

claimed that he was not well when he put his signatures and he simply

put signatures on whatever was recorded by the Inspecting Officer.

7. An appeal lies under Section 30 of the Employee's

Compensation Act only if a substantial question of law arises.

Appraisal of evidence does not fall within the realm of substantial

question of law. Once as per the evidence led by the parties the

Employee's Compensation Commissioner takes one possible and

plausible view, it cannot be argued that because of taking of one

possible view, the same results in error in the impugned judgment, and

therefore, there arises a substantial question of law.

8. It is seen that it is not disputed that appellant nos. 2 and 3

were working at the site of the appellant no.1 for doing POP work, and

had engaged labour for the work. It is also proved in the evidence that

respondent/claimant was at the site and had got electrocuted. It is also

an admitted position on record that appellant no.2 during his cross-

examination kept silent to the specific question that the

respondent/claimant was employed by him, and therefore, the

Employee's Compensation Commissioner rightly drew an adverse

inference against the appellants. To the reasoning of the Employee's

Compensation Commissioner I would like to add that under Illustration

(h) of Section 114 of the Indian Evidence Act, 1872, if a man refuses

to answer a question then it has to be presumed that the answer, if

given, would be unfavourable to him. Also, the Employee's

Compensation Commissioner has rightly held that if the

respondent/claimant was not an employee of the appellants no.2 and 3

then there was no reason why a sum of Rs.25,000/- to Rs.30,000/-

would have been paid to the respondent/claimant for his treatment.

Also, there was no reason why the appellant no.2 before the Inspecting

Officer would have signed Ex.CW3/Y admitting that he would settle

the matter and pay the claim amount to the respondent/claimant.

9. In view of the above discussion, I do not find any error in

the impugned judgment. No substantial question of law arises. The

appellants/Employee's Compensation Commissioner are hereby

directed to pay the compensation amount directly and only to the

respondent/claimant. A copy of this judgment be sent to the

Employee's Compensation Commissioner for necessary action.

10. Dismissed.

MAY 02, 2017/ib                             VALMIKI J. MEHTA, J