Suraj Munni & Anr. vs Sachin Bhatia & Anr.
2017 Latest Caselaw 5888 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.115/2016

%                                                   26th October, 2017

SURAJ MUNNI & ANR.                                    ..... Appellants
                  Through:               Mr. Anshuman Bal, Advocate.
                          versus

SACHIN BHATIA & ANR.                                  ..... Respondents

                  Through:               Mr. Pankaj Gupta, Advocate for
                                         respondent No.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 (hereinafter referred to as „the Act‟) is filed

by the claimants impugning the judgment of the Employee‟s

Compensation Commissioner dated 18.12.2015 whereby the claim

petition filed by the appellants under Section 22 of the Act was

dismissed and wherein compensation was prayed on account of the

death of the son of the claimants one Sh. Vipin Kumar.

2. The facts of the case are that the deceased was pleaded to

have been employed as a driver at wages Rs.7,000/- per month with

the respondent no.1 on the vehicle of the respondent no.1 TSR

registration no.DL-01RK-6298. The deceased met with an accident

on 6.8.2009 at 2.00 P.M. at Azadpur Fly Over, Delhi when the

deceased was working in the course of employment with the

respondent no.1. Sh. Vipin Kumar died due to injuries caused by the

accident arising out of and in the course of employment. DD No.7A

was lodged at Adarsh Nagar, New Delhi and post mortem was

conducted in Babu Jagjiwan Ram Hospital, Delhi. Respondent no.1

was proceeded ex-parte and it was only respondent no.2/insurance

company which contested the claim petition and filed its written

statement. It was contended by the respondent no.2 that there is no

relationship of employer and employee and that no documents were

filed to show the relationship of employer and employee including

payment of wages.

3. After pleadings were complete the trial court framed the

following issues:-

"i. Whether their exists employee-employer relationship between deceased Vipin Kumar and Sh. Sachin Bhatia and whether the accident

resulting into death of deceased occurred during and in the course of employment with R-1 i.e. Sh. Sachin Bhatia.

ii. If yes, whether the Claimants are entitled to compensation claim, claimed by them. If yes, what amount and what directions are necessary in this respect?"

4. The appellants/claimants thereafter led evidence and this

aspect is recorded in para 5 of the impugned judgment and which para

reads as under:-

"5. The Claimant filed his affidavit exhibited as PW1/A as evidence in this case along with documents i.e. Photocopy of election I-card of deceased Vipin Kumar (Exhibited as PW1/1), Copy of driving license of deceased Vipin Kumar (Exhibited as PW1/2), Copy of death certificate of deceased Vipin Kumar (Exhibited as PW1/3), Copy of Post Mortem Report of deceased conducted by Babu Jagjiwan Ram Memorial Hospital, Delhi (Marked as PW1/4), Copy of School Leaving Certificate of deceased Vipin Kumar (Marked as PW1/5), Copy of Election I Card of Claimant Sh. Suraj Muni (Exhibited as PW1/6), Copy of Election I Card of Claimant Smt. Urmila (Exhibited as PW1/7), Copy of Ration Card (Exhibited as PW1/8). He has deposed that he is not an eye witness of the accident. Claimant also deposed that he does not have any documentary proof to show that the deceased was employed with R-1 and that he was earning Rs.7000/- per month. Claimant also deposed that the deceased Vipin Kumar was driving the offending vehicle for the last 2 years before his death."

5. Employee‟s Compensation Commissioner has dismissed

the claim petition by observing that appellants/claimants have failed to

prove that there was a relationship of employer and employee as no

details have been given of payment of salary by the respondent no.1

and nor it was proved that any salary was paid by the respondent no.1

to the deceased. Employee‟s Compensation Commissioner held that

the deceased was driving the vehicle on per day basis from the

respondent no.1. Hence the claim petition was dismissed.

6. Learned counsel for the appellants has drawn the

attention of this Court to the judgment dated 26.3.2014 in FAO

No.37/2014 titled as National Insurance Co. Ltd. Vs. Smt. Badami

Devi and Ors. wherein in similar circumstances of issue arising as to

the relationship of employer and employee it was held by this Court

that it is not as if that for such employment in a TSR there would be

properly drafted out contracts. Once the insurance company has issued

a policy having a clause for payment under the Act i.e there existing a

relationship of employer and employee, for which premium is paid

and policy is issued to cover loss caused on account of injuries to an

employee arising out of and in the course of employment, then, there

is no reason to hold that the deceased should not be taken as employee

of the owner of the vehicle.

7. The relevant para of the judgment in the case of Smt.

Badami Devi (supra) is para 7 and this para 7 reads as under:-

"7. So far as the first argument is concerned, in my opinion, no substantial question of law arises under Section 30 for this appeal to be entertained because in cases of employing of a driver for driving of a TSR I do not think that there would be properly drafted and typed out contracts

which are required to be filed for showing the relationship of employer and employee. It is settled law that provisions of Code of Civil Procedure, 1908 (CPC) and Evidence Act, 1872 do not apply to the proceedings before the Commissioner. However, the fact that the vehicle which was driven by deceased Sh. Umesh Kumar met with an accident was in the name of the employer/respondent no.2, is sufficient to hold that the deceased Sh. Umesh Kumar was the employee of the respondent no.2 more so because there was no reason why the appellant/insurance company would have taken additional premium under the policy with respect to the Employee‟s Compensation Act if there was no employee i.e the deceased employee Sh. Umesh Kumar. The first argument therefore urged on behalf of the appellant is rejected."

8. In the facts of the present case admittedly it has been

proved on record that the deceased was driving the vehicle which was

owned by the respondent no.1 herein. Since in contractual relations of

a driver and owner of a vehicle ordinarily a proper contract is not

drawn out as is prepared in large commercial contracts, I follow and

adopt the observations made in the case of Smt. Badami Devi (supra)

that there is no reason to hold that the deceased was not an employee

of the owner of the vehicle especially when there is an insurance

policy taken with respect to the person who is employed as an

employee/driver of the TSR vehicle.

9. In view of the above, this appeal is allowed. The matter

is remanded to the Employee‟s Compensation Commissioner to

calculate the compensation as required by law. Employee‟s

Compensation Commissioner will calculate the wages as per the

statutory notifications of minimum wages issued and which the

Employee‟s Compensation Commissioner has to take into account by

virtue of Section 4(1B) of the Act. The appellants here will now along

with copy of the present judgment move to the concerned Employee‟s

Compensation Commissioner for calculation of the compensation as

would be payable by law.

10. Appeal is accordingly allowed and disposed of in terms

of the aforesaid observations. Trial court record be sent back when

requisition is received from the Employee‟s Compensation

Commissioner.

OCTOBER 26, 2017                            VALMIKI J. MEHTA, J
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