Shriram General Insurance Co. ... vs Naseem Ahmed & Anr.
2017 Latest Caselaw 5588 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 482/2016

%                                                    11th October, 2017

SHRIRAM GENERAL INSURANCE CO. LTD.                          ..... Appellant

                   Through:        Mr. Samar Nandwani, Advocate.

                          versus

NASEEM AHMED & ANR.                                      ..... Respondents

                   Through:        Mr. R.K. Nain, Advocate for R-1.

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 is filed under Section 30 of the

Employees Compensation Act, 1923 by the insurance company

impugning the judgment of the Employees Compensation

Commissioner dated 6.5.2016 by which the Employees Compensation

Commissioner has allowed the claim petition which was filed by

respondent no. 1 herein and granted compensation of Rs.8,84,016/-

along with interest at the rate of 12% per annum from 30 days after the

date of the accident as per Section 4(A) of the Employees

Compensation Act.

2. The facts of the case are that the respondent no. 1 pleaded

that he was employed as a driver by the respondent no. 2 herein for

driving the truck bearing no. HR-56-2667. On 29.5.2010 the

respondent no. 1 is pleaded to have received injuries during the course

of employment because he had gone for getting his vehicle loaded

with empty bottles from Pilkhani for M/s Jagjit Industries, Hamira,

Punjab, and after that he was to collect cash for on-way expenses.

Respondent no. 1 when he just came out from the factory where the

bottles were loaded was hit by a vehicle and he sustained injuries on

his neck and left side of the body. The result of the injury was that

blood supply to his hand was affected and his hand became

dysfunctional. Respondent no. 1 was taken to hospital and since the

injuries were extensive the respondent no. 1 had to go for better

treatment. He was referred to AIIMS Hospital, Delhi. Respondent no.

1 pleads that he took treatment as an outdoor patient and paid a sum of

Rs.30,000/- on his treatment. The vehicle in question was insured for

insurance premium paid under the Employees Compensation Act with

the appellant for a policy which was valid for the period from

18.12.2009 to 17.12.2010. Respondent no. 1 was pleaded to be

drawing wages of Rs.8,000/- per month and Rs.150/- per day as food

allowances. Respondent no. 1 was forty years of age at the time of the

accident. Respondent no. 1 pleaded that in view of the judgment of

the Supreme Court in the case Pratap Narain Singh Deo Vs. Srinivas

Sabata and Another, (1976) 1 SCC 289 once the injury is such that

the injured employee is not able to carry out the work which he was

otherwise doing before the injury for the employer, then the disability

though may be partial to the body or limb, yet, such injury has to be

taken as a 100% disability.

3. Appellant as also respondent no. 2 herein/employer was

served in the proceedings before the Employees Compensation

Commissioner. Respondent no. 2, however, did not file his written

statement in the proceedings, however his statement was recorded

under Rule 27 of the Workmen's Compensation Rules and where it

was admitted by the respondent no. 2 that he was owner of the subject

vehicle and the respondent no. 1 was employed by him as a driver and

being paid a salary of Rs.8,000/- per month with Rs.150/- per day as

food allowances. The respondent no. 2 also stated in his statement

that accident took place when the respondent no. 1 was on duty

because the respondent no. 1 was coming to respondent no. 2 for

getting advance for the ensuing trip and when he met with the

accident.

4. Appellant filed its written statement and denied the claim

on the ground that the plea of the respondent no. 1/claimant is not

supported by any police report/MLC. It was pleaded by the appellant

that injury has been manipulated and the respondent no. 2/owner never

informed the insurance company about the accident. It was pleaded

that the respondent no. 1 did not file the necessary driving license, etc.

The factum of insurance was however admitted.

5. Respondent no. 1/claimant filed his affidavit by way of

evidence and proved his case. Disability certificate was proved as

AW1/1, medical treatment documents were proved as Ex.AW1/2,

insurance policy was proved as Ex.AW1/3, election identidy card was

proved as Ex.AW1/4 and ration card Ex.AW1/5. Respondent no. 1

was subjected to cross-examination and he stood the test of cross-

examination and there is nothing material which is elicited from the

respondent no. 1 from his cross-examination that he was not the

employee, that he did not suffer injuries in the accident or that his pay

was not Rs.8,000/- per month, etc etc.

6. Whereas the respondent no. 1 led evidence and proved

his case, and he was also supported by the statement of respondent no.

2 recorded on 15.2.2016, but, the appellant/insurance company led no

evidence. Once the evidence is led by the claimant and the respondent

leads no evidence, then in such a case there is no reason to disbelieve

the case of the respondent no.1/claimant. In such a scenario no

substantial question of law arises under Section 30 of the Employees

Compensation Act for this appeal to be entertained.

7. Counsel for the appellant/insurance company argued that

the disability in question is not 100% disability but is only partial

disability as only the hand of the respondent no.1/claimant is affected,

however, the argument is without any substance because way back

since the year 1976 Hon'ble Supreme Court has clearly held in Pratap

Narain Singh Deo's case (supra) that though disability may be partial

disability, but once that partial physical disability prevents the

employee from doing the work he otherwise did prior to the accident

and injuries caused, such disability is taken as 100% disability. In the

present case the respondent no. 1 was a driver and as a result of the

accident his hand was affected whereby he cannot drive any vehicle,

and therefore such disability becomes a 100% disability in terms of

the ratio of the Supreme Court judgment in the case of Pratap Narain

Singh Deo (supra).

8. Counsel for the appellant/insurance company then argued

that the Employees Compensation Commissioner has wrongly taken

the pay at Rs.8,000/- per month. Even this argument is without merit

because respondent no. 1 has stepped into the witness box and proved

his case but the appellant led no evidence. In such a scenario

Employees Compensation Commissioner has committed no illegality

in believing the statement of respondent no. 1, and therefore no

substantial question of law arises under Section 30 of the Employees

Compensation Act for this appeal to be entertained on this ground.

9. There is no merit in the appeal. Dismissed.

OCTOBER 11, 2017                          VALMIKI J. MEHTA, J
AK