Delhi High Court
The Oriental Insurance Co. Ltd. vs Dalganjan Singh & Anr. on 24 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 353/2016
% 24th May, 2017
THE ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Himanshu Gambhir,
Advocate.
versus
DALGANJAN SINGH & ANR. ..... Respondents
Through: Ms. Pratima N. Chauhan,
Advocate for R-1.
Mr. Raviinder Singh, Advocate
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 Insurance Company impugning
the judgment of the Employee's Compensation Commissioner dated
18.5.2016 allowing the claim petition and awarding compensation of
Rs.4,99,152/- along with interest at the rate of 12% per annum.
2. Learned counsel for the appellant has argued two aspects.
The first aspect which is argued is that no relationship of employer and
employee was proved between the respondent no. 1 herein and the
respondent no. 2 herein. Respondent no. 2 herein was the respondent
no. 1 before the Employee's Compensation Commissioner and he was
impleaded as the employer and the owner of the vehicle. Respondent
no. 1 herein was the claimant before the Employee's Compensation
Commissioner.
3. With respect to the employment of the driver on a truck,
normally we do not find employment letters or employment contracts.
Courts as also the Commissioners under the Act have to arrive at a
finding as per the evidence which is led on record and the
Commissioner as also this Court, depending on facts of a case, can
hold existence of relationship of employer and employee if the vehicle
is not found to be stolen by the person who was found driving the
vehicle at the time of the accident. Such finding arising out of evidence
does not raise any substantial question of law under Section 30 of the
Employee's Compensation Act for this Court to interfere. It is,
therefore, held that the Employee's Compensation Commissioner has
rightly decided the existence of relationship of employer and employee
between the present respondents.
4. The second issue which is argued on behalf of the
appellant is that the claim petition was filed after a delay of twelve
years nine months and twenty days and the same was allowed by
reference to the judgment of the Supreme Court in the case of Pratap
Narain Singh Deo Vs. Srinivas Sabata., 1976 ACJ 141 (SC) and
which judgment admittedly does not deal with how there is sufficient
cause for condonation in terms of the fifth Proviso of Section 10 of the
Employee's Compensation Act. No doubt courts have to be liberal
while allowing condonation of delay but there has to be some finding
by the Employee's Compensation Commissioner as per the facts giving
reasons as to why delay should be condoned. Unless reasons are given
which are valid in law there is no automatic condonation of delay and
unless there are reasons given i.e there is a speaking judgment, this
Court cannot decide that whether such finding raises or does not raise a
substantial question of law under Section 30 of the Employee's
Compensation Act for the first appeal to be entertained by this Court.
Putting it in other words, first there has to be a finding for this Court to
come to a conclusion that whether or not the finding raises or does not
raise a substantial question of law and in the absence of any
finding/reasons this Court cannot decide as to whether or not the
alleged finding which is only a conclusion raises or does not raise a
substantial question of law.
5. Learned counsel for the respondent no. 1 has relied upon a
judgment passed by a Division Bench of this Court in the case of Phuli
Devi Vs. Jawahar Singh and Ors., LPA No. 54/2009 decided on
17.3.2009 to argue that the Division Bench of this Court had condoned
the delay of nine years in filing of the compensation claim under the
Employee's Compensation Act and reliance is also placed on the
recently added Section 17(A) of the Employee's Compensation Act to
argue that, on the basis of the aforesaid judgment and Section 17(A) of
the Employee's Compensation Act delay should be condoned,
however, these are arguments which have to be raised and decided by
the Employee's Compensation Commissioner for deciding whether or
not to condone the delay i.e whether there are sufficient reasons for
delay and with respect to which a speaking judgment would have to be
passed. There is no speaking judgment in the present case giving
reasons as to why delay of twelve years nine months and twenty days
should be condoned.
6. Accordingly, this matter is remanded to the Employee's
Compensation Commissioner to give decision on the issue as to
whether or not there should be condonation of delay and whether there
is sufficient cause for condonation of delay in terms of the fifth Proviso
of Section 10 of the Employee's Compensation Act. The Employee's
Compensation Commissioner will give reasoned judgment and discuss
as to whether or not the delay in filing of the claim petition should or
should not be condoned.
7. Accordingly, while setting aside the impugned order dated
18.5.2016, parties are directed to appear before the concerned
Commissioner on 6th July, 2017, and the Commissioner will now hear
and dispose of the matter with respect to issue of whether or not there
is sufficient cause of condonation of delay in terms of the observations
made herein above.
8. Trial court record be sent back.
MAY 24, 2017/AK VALMIKI J. MEHTA, J
