Delhi High Court
The New India Assurance Co. Ltd. vs Nayyr & Anr. on 5 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO Nos. 208/2017 & 209/2017
% 5th May, 2017
+ FAO No. 208/2017
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Anshum Jain and Mr. Amol
Sinha, Advocates.
versus
NAYYR & ANR. ..... Respondents
+ FAO No. 209/2017
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Anshum Jain and Mr. Amol
Sinha, Advocates.
versus
AFJAL & ORS. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
FAO No. 208/2017
1. By this first appeal filed under Section 30 of the
Employee's Compensation Act, 1923 the appellant/insurance company
impugns the judgment of the Employee's Compensation Commissioner
dated 19.1.2017 whereby the Employee's Compensation
Commissioner had allowed the claim petition filed by the respondent
no.1 herein.
2. The facts of the case are that the respondent no.1 was
engaged as a driver on a vehicle being Truck No. HR-55-L-4189
owned by the respondent no.1 in the claim petition and who is the
respondent no.2 herein. On 9.8.2015 the vehicle was on a business trip
after it was got loaded from Dehradun and onwards to Chennai. When
the vehicle reached Sanauli Road at Panipat in Haryana, it was parked
on the side of the road to have its tyres etc checked. The respondent
no.1 got electrocuted on account of electricity which passed through
the truck from the live electric high voltage line. Electrocution
resulted in injuries to both the respondent no.1 herein as also the
cleaner of the truck (with respect to cleaner the company appeal FAO
No. 209/2017 is filed). Both the respondent no. 1 herein and the
cleaner Mohd. Shoaib were taken to hospital whereas the cleaner died
due to electrocution, the respondent no.1 herein suffered grievous
injuries on his body and left hand, resulting in amputation of his left
hand. The case was registered in Police Station Chandnibagh, District
Panipat, Haryana, dated 9.8.2015 vide U.D. No. 32/09. Respondent
no.1 herein pleaded in the claim petition that since he is not in a
position to drive a vehicle and which was his employment, he is
therefore permanently disabled for life for doing his job of a driver and
hence he should be granted compensation. Respondent no.1 was 42
years of age at the time of accident and was drawing wages at Rs.
8000/- per month besides Rs.200 per day as food allowance.
3. Respondent no.2 herein, and who was the respondent no.1
in the claim petition, being the owner of the vehicle, did not appear and
did not file his written statement. The appellant/insurance company
contested the case by filing the written statement and it was pleaded
therein that there is no relationship of employer and employee between
the respondent no.1 and the respondent no.2, and which is the only
issue urged before this Court.
4. Learned counsel for the appellant argued that there was no
proof filed of relationship of employer and employee between the
respondent no.1 and the respondent no.2, and therefore, the
Employee's Compensation Commissioner has erred in allowing the
claim petition. It is noted that the legal position for deciding that the
claims under the Employee's Compensation Act is that the petitions
before the Employee's Compensation Commissioner are not decided as
per the strict rules of the Indian Evidence Act, and therefore, in the
facts of the present case, the Employee's Compensation Commissioner
has rightly, inter-alia as per the affidavit by way of evidence of
respondent no.1, drawn the conclusion of the respondent no.2 being the
employer of the respondent no.1 and which conclusion is additionally
justified because admittedly the vehicle/truck in question was owned
by the respondent no.2, and who admittedly had got this vehicle/truck
insured with the appellant. It is not the case of the appellant that the
truck was stolen and was being driven by a stranger, and therefore, the
Employee's Compensation Commissioner was entitled to and has
rightly arrived at a conclusion that the relationship of employer and
employee existed between the respondent no.2 and the respondent
no.1. This Court cannot ignore the ground reality that for employment
of a driver of a truck mostly the salary payment is in cash when
employment is under a private individual; and also that no written
service contract is ordinarily entered into.
5. An appeal under Section 30 of the Employee's
Compensation Act lies only if there arises a substantial question of
law. Appraisal of evidence and thereafter arriving at conclusions on
the basis of the same does not result in arising of a substantial question
of law. The Employee's Compensation Commissioner was entitled on
the basis of evidence on record to arrive at the conclusion, and which
did establish that there was a relationship of employer and employee
between the respondent no.2 and respondent no.1 herein.
6. Dismissed.
FAO No. 209/2017
7. The facts of the present case are same as in FAO No.
208/2017 except that respondent nos. 1 and 2 herein being the
claimants before the Employee's Compensation Commissioner are the
legal heirs of the cleaner Mohd. Shoaib who expired due to
electrocution on 9.8.2015.
8. In this case also it is disputed that there was a relationship
of employer and employee. Besides the fact that deceased Mohd.
Shoaib was indeed found on the truck in question, the relationship of
employer and employee is proved by the affidavit by way of evidence
filed of the driver of the vehicle namely Mr. Nayyr (respondent
no.1/claimant in FAO No.208/2017). Merely because the cleaner
Mohd. Shoaib was also related as a nephew of the driver, and as argued
before this Court, it does not mean that it can be held on this ground
itself that there was no relationship of employer and employee between
the deceased and the respondent no.1 in the claim petition. Infact this
objection of the deceased being related to the driver as a nephew has
also not been taken by the appellant/insurance company in its written
statement, and hence this plea is not available for being argued in this
Court, and therefore this argument is rejected.
9. This Court also adopts the reasoning given while deciding
FAO No. 208/2017.
10. Dismissed.
MAY 05, 2017/ib VALMIKI J. MEHTA, J
