Delhi High Court
Kewal Krishan Gujral vs Sonmati Devi on 30 October, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 416/2017
% 30th October, 2017
KEWAL KRISHAN GUJRAL ..... Appellant
Through: Mr. Shiv Prakash Pandey and
Mr. Raghav Pandey, Advocates.
versus
SONMATI DEVI ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM Nos. 38810-11/2017 (Exemptions)
Exemptions allowed subject to just exceptions.
CM stands disposed of.
CM Nos. 38812/2017 (delay in filing) 38813/2017 (delay in re-filing)
For the reasons stated in the applications, delays in filing and
re-filing are condoned.
CMs stand disposed of.
FAO No. 416/2017 & CM No.38809/2017 (stay)
1. This First Appeal under Section 30 of the Employee‟s
Compensation Act, 1923 (hereinafter referred to as „the Act‟) is filed
by the respondent in the proceedings before the Employee‟s
Compensation Commissioner impugning the judgment dated 8.2.2017
by which the Employee‟s Compensation Commissioner has allowed
the claim petition filed by the claimant seeking compensation on
account of death of her husband Sh. Vrindawan Tiwari employed as a
mason by the appellant who owned the building/property 16A/15
WEA (FF) Karol Bagh, New Delhi (in short „the subject property‟).
Compensation of Rs.4,98,800/- has been awarded with interest at 12%
from one month after the date of the accident.
2. The facts of the case are that the respondent/claimant
filed the subject claim petition pleading that her husband Sh.
Vrindawan Tiwari was employed by the appellant as a mason to do the
renovation work at the subject property. On 28.11.2012 at about
10A.M. while doing the renovation work the chhajja/ledge of the
building fell down while the deceased Sh. Vrindawan Tiwari was
working there at that time. Deceased Sh. Vrindawan Tiwari sustained
grievous multiple injuries all over his body resulting in his death. He
was brought declared dead to the hospital. Lady Harding Hospital
issued an MLC No. 37196/2012 and postmortem report was given
vide PMR No. 563/2012. A police case was registered under FIR
No.234/2012 under Section 288/304A of IPC at Police Station, Karol
Bagh, New Delhi. The deceased was 56 years of age at the time of his
death. Respondent/claimant approached the appellant to pay
compensation on account of the death arising out of and in the course
of employment but the position of non-payment continued, and when
in spite of the respondent/claimant seeking a demand notice dated
25.11.2013 through registered post the claim was not paid, hence the
claim petition was filed.
3. Appellant contested the claim petition and pleaded that
the deceased Sh. Vrindawan Tiwari was working as a Petty Labour
Contractor and was given the contract for installation of railing in
front of the first floor veranda and raising height of boundary wall of
second floor. It was contended that there was no ledge/chhajja but
there was a proper fixed structure where 6-7 heavy flowerpots were
kept. It was pleaded that when the deceased started working on the
first floor the deceased was in hurry and he did not prepare the support
from the ground floor. It is further pleaded that the deceased when
working on the chhajja lost control and fell down on the ground floor
thereby seriously injuring himself. It was pleaded that the accident
therefore happened on account of negligence of the deceased in not
providing the necessary support to the chhajja in spite of the deceased
being provided with necessary items such as ballies, phattas, rassi,
peti etc.
4.(i) After pleadings were completed the following issues were
framed on 20.10.2014:-
"a. Whether accident occurred in the course of employment with
respondent resulting petitioner expired?
b. "If so, what relief"? What directions are necessary in this regard?
(ii) Additional issues were also framed
on 22.12.2015 as under:-
"1. Whether there was employee and employer relationship between the
deceased and the respondent?
2. Whether the accident arose out of and during the course of his
employment with the respondent?
3. Whether the deceased was a workman or a Petty contractor as
claimed by the respondent?
4. What amount of the compensation if any the claiming are entitled
for?
5. Any other relief?"
5. The respondent/claimant filed affidavit by way of
evidence and she was cross-examined by the appellant but nothing
adverse came on record. Appellant also filed his affidavit by way of
evidence and was cross-examined by the respondent/claimant.
6. Two issues are argued before this Court on behalf of the
appellant. One was as to whether the deceased Sh. Vrindawan Tiwari
was the employee of the appellant and secondly whether the deceased
died on account of his own negligence.
7. As regards the first issue that the deceased was an
employee, the Employee‟s Compensation Commissioner has referred
to the provision of Section 2(1)(dd) of the Act which defines an
employee, and the Employee‟s Compensation Commissioner
accordingly held that the deceased Sh. Vrindawan Tiwari being
employed by the appellant/owner of the subject property was an
employee for the purposes of the Act. The Employee‟s Compensation
Commissioner held that any person engaged in construction work is
covered under the definition of employee as per Section 2(1)(dd) of
the Act and hence it has to be held that there was a relationship of
employer and employee between the appellant and the deceased Sh.
Vrindawan Tiwari. I completely agree with this conclusion of the
Employee‟s Compensation Commissioner.
8.(i) So far as the second issue is concerned, learned counsel
for the appellant argued that the appellant is not liable in view of the
provision of Section 3(1)(b)(iii) of the Act and which provides that
once the employee has been given safety guard or other devices for the
purpose of securing safety of employee and the employee does not use
the safety devices then in such a case the appellant/employer was not
liable.
(ii) In this regard it is seen that except making a self-serving
statement in the affidavit by way of evidence, appellant filed no proof
whatsoever that the appellant had provided to the deceased Sh.
Vrindawan Tiwari the necessary safety equipment or the scaffolding
material including ballies, phattas, rassi, peti etc. Therefore, a self-
serving averment cannot be taken as discharge of onus of proof, and
more so this Court cannot under Section 30 of the Act consider such
an aspect to raise a substantial question of law for this appeal to be
entertained. The Employee‟s Compensation Commissioner therefore
was entitled to arrive at a finding that there was no negligence of the
deceased so as to award compensation to the respondent/claimant.
9. No substantial question of law arises. Dismissed.
OCTOBER 30, 2017/ib VALMIKI J. MEHTA, J
