Delhi High Court
M/S Adecco India Pvt. Ltd. vs Shriram & Anr. on 15 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 461/2016 & CM Nos. 34927/2016 &
5936/2017
% 15th May 2017
M/S ADECCO INDIA PVT. LTD. ..... Appellant
Through: Mr. M.S.Sharma, Advocate.
versus
SHRIRAM & ANR. ..... Respondents
Through: Mr. Rajat Sharma, Adv. for R-1.
Ms. Upasana Talwar, Adv. for
R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal under Section 30 of the Employee's
Compensation Act, 1923 is filed by the employer impugning the
judgment of the Employee's Compensation Commissioner dated
17.5.2016 which has allowed the claim petition filed by the respondent
no.1 herein/claimant and awarded compensation of Rs. 23,942/- along
with interest at 12% per annum.
2. The facts of the case are that the respondent no.1 herein,
claimant before the Employee's Compensation Commissioner, filed
the claim petition stating that he was the employee of the present
appellant. On 12.10.2009 at around 2:45 PM when the respondent
no.1/claimant was going to handover papers from his establishment's
office in Okhla to Captain Gaur near Modi Flyover, he met with an
accident near Kalkaji Mandir and he was treated at Holy Family
Hospital. Respondent no.1/claimant spent Rs.15,000/- for the treatment
of fracture in his left leg because of the accident and due to which he
pleaded to have suffered 60% disability. It was further pleaded that
appellant assured him that compensation will be paid but failed to do
so and hence the claim petition was filed.
3. Appellant appeared before the Employee's Compensation
Commissioner and disputed the claim of the respondent no.1/claimant.
It was pleaded by the appellant that respondent no.1/claimant is
covered under the Group Personal Accident Insurance Policy and
hence the insurance company should be made to pay for the
compensation. Appellant also pleaded that the respondent
no.1/claimant had failed to prove the disability. It was also pleaded
that the claim was time barred. It was also pleaded that the respondent
no.1/claimant was not a workman as he was engaged as an officer vide
appointment letter dated 11.2.2008 and that the provision of the
Employee's Compensation Act do not apply to the respondent
no.1/claimant.
4. Respondent no.2 in these proceedings is the respondent
no.1 before the Employee's Compensation Commissioner, and it is
neither a necessary nor proper party because as against the respondent
no.2 herein, respondent no.1 before the Employee's Compensation
Commissioner, the claim petition has been dismissed.
5. The following issues were framed by the Employee's
Compensation Commissioner:-
"i. Whether the claimant is entitled to the claim compensation
as an officer for injury caused during in his employment
with respondent no.2?
ii. Whether the claimant was covered under ESIC?
iii. If yes?
iv. Any other directions?"
6. Both the parties filed their affidavits by way of evidence
and their witnesses were cross-examined.
7. As regards issue no. (i) appellant itself had admitted that
appellant had given an employment letter dated 11.2.2008 to the
respondent no.1/claimant. It was also admitted that respondent
no.1/claimant was paid wages by the appellant. It was also found as a
fact that the appellant itself admitted that the respondent no.1/claimant
is covered under the Group Personal Accident Insurance Policy and
insurance company would be liable. It was therefore held by the
Employee's Compensation Commissioner that there was a relationship
of employer and employee between the appellant and the respondent
no.1/claimant. In fact, in the cross-examination of the witness of the
appellant, it was admitted that the respondent no.1/claimant was
appointed on 11.2.2008 and he worked upto 12.10.2009. Accordingly,
it has been rightly held that there was a relationship of employer and
employee between the appellant and respondent no.1/claimant.
8. The factum of the accident occurring was held to be
proved in view of the FIR No. 505/2009 exhibited as Ex.WW1/46 and
the AIIMS form with respect to transfer to another hospital was proved
as Ex.WW1/9. The respondent no.1/claimant was admitted to Holy
Family Hospital on 12.10.2009 and was discharged on 16.10.2009 after
being treated for left leg fracture.
9. The Employee's Compensation Commissioner notes that
the factum with respect to happening of the accident is not denied and
which happened when the respondent no.1/claimant was going to
deliver the papers of the appellant/employer company. It was therefore
held that accident arose during and out of the course of employment.
10. Accordingly, the Employee's Compensation
Commissioner decided issues nos. 3 and 4 by granting compensation as
under:-
In view of the findings on issue no.1 and 2 the claimant are entitled for
compensation which is calculated as below:-
Age of the claimant as per Ration Card is 58 years which is exhibited as
Ex.WW1/49. The wages of the workman are taken as Rs.4,000/- per month
as provided under Section-4. Disability is 8% as per disability certificate
no.F.14/59/3780/Pt N/MMH/2227 dated 14/12/2012 issued by Pandit
Madan Mohan Malvya Hospital New Delhi.
i) Relevant factor for 58 years of age : 124.70
ii) 60% of last drawn monthly salary restricted
to Rs.2,400/- i.e. maximum limit fixed Under
Section 4 of the Act :Rs.2,400/-
iii) Amount of Compensation ;124.70XRs.2,400/-
iv) Total compensation amount : Rs.23,942/-
5. As per provisions Sub Section (3) of Section 4A of the Act, the
amount of compensation should have been paid by the respondents
to the claimant of Sh. Shriram within one month from the date of
accident 12/10/2009 i.e latest by 11/11/2009 but the respondents
have not yet paid the compensation to the claimant. Therefore, the
claimant Sh. Shriram are also entitled for interest on the
compensation amount @ 12% w.e.f. 12/11/2009 till the realization
of compensation amount.
6. The Respondent no.2 is liable to pay the compensation amount
along with interest as mentioned above. M/s Adecco Flexione
Workforce Solution Ltd., Respondent no.2 is directed to deposit in
this court an amount of Rs.23,942/- (Twenty Three Thousand
Nine Hundred Forty Two Only) on account of compensation
payable to the claimant Sh. Shriram alongwith interest @ 12% p.a
w.e.f. 12/11/2009 till its realization, through Pay order in favour of
"Commissioner Employee's Compensation-VIII" within a period
of thirty (30) days from the pronouncement of this order for
disbursement to the petitioners/claimants."
11. An appeal under Section 30 of the Employee's
Compensation Act lies only if there is a substantial question of law.
Appraisal of evidence does not result in a substantial question of law
once the conclusions of the Employee's Compensation Commissioner
are arrived at on the basis of evidence on record and more particularly
the admissions made by the appellant itself. Accordingly, no fault or
illegality whatsoever can be found in the impugned judgment, much
less that a substantial question of law arises under Section 30 of the
Employee's Compensation Act for this appeal to be entertained.
12. Counsel for the appellant argued that the claim petition
was time barred, and therefore, should have been dismissed, however,
it is noted that though this defence was raised in the written statement,
but the appellant did not choose to get any issue framed on the same.
Obviously, the appellant is therefore deemed to have abandoned its
plea of limitation. In case, the appellant was of the opinion that the
Employee's Compensation Commissioner ought to have framed an
issue because it was pressing the issue of limitation, then after the
issues were framed, appellant should have moved an application for
framing of issue with respect to issue of limitation and admittedly this
was not done. Therefore, appellant cannot now argue that it had
pressed the issue of limitation.
13. The next argument which was raised on behalf of the
appellant was that the Employee's Compensation Commissioner who
decided the issue did not have requisite qualification for his being
appointed as an Employee's Compensation Commissioner under
Section 20 of the Employee's Compensation Act, and once again this
argument is to be rejected on the same reasons given for rejecting the
first argument of the appellant reproduced above inasmuch as no such
issue was got framed by the appellant and the appellant is therefore
deemed to have waived this defence. In any case this defence is totally
frivolous and not even remotely substantiated. This second contention
of the appellant is therefore rejected.
14. Counsel for the appellant finally argued that there existed
no relationship of employer and employee and the respondent
no.1/claimant was never the employee of the appellant, however, I
have already given detailed reasoning above and which shows that
Employee's Compensation Commissioner was justified in arriving at a
finding that the appellant was the employer of the respondent
no.1/claimant especially on account of the admissions made by the
appellant itself.
15. No substantial question of law arises. Dismissed.
MAY 15, 2017/ib VALMIKI J. MEHTA, J
