Bajaj Allianz General Insurance ... vs Nisha & Anr.
2017 Latest Caselaw 4822 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO No. 584/2016 & CM Appl. Nos. 46591/2016 (stay),
      46593/2016 (for condonation of delay of 43 days in filing
      appeal)

%                                                  7th September, 2017

BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
                                          ..... Appellant
                  Through: Mr. Navneet Kumar, Advocate

                          versus

NISHA & ANR.                                           ..... Respondents

                          Through:       Mr. Anshuman Bal, Advocate
                                         for R-1
                                         Mr. Aatreya Singh and
                                         Mr. Rajiv Trivedi, Advocates
                                         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 is filed under Section 30 of the

Employees Compensation Act, 1923 impugning the judgment of the

Employees Compensation Commissioner dated 11.08.2016 by which

the Employees Compensation Commissioner has allowed the claim

petition which was filed by the respondent no.1 herein/widow of

deceased Lalit Dass @ Monu and awarded compensation of

Rs.8,47,160/- along with interest at 12% per annum w.e.f. 20.12.2013

being the date of the accident.

2. The facts of the case are that the deceased husband of the

respondent no.1/claimant Lalit Dass @ Monu was employed as a driver

by the respondent no.2 herein, respondent no.1 before the Employees

Compensation Commissioner, to drive the vehicle bearing no. DL-9CU-

5837 at wages of Rs.12,000/- per month. On 20.11.2013 the vehicle met

with an accident when the deceased Lalit Dass @ Monu was driving the

vehicle. The accident took place at Ring Road, New Bypass Flyover,

IGI Stadium, New Delhi. Lalit Dass @ Monu died on the spot and FIR

in this regard was registered in Police Station I.P. Estate. At the time of

the accident, deceased Lalit Dass @ Monu was holding a valid driving

licence and was 29 years of age. The claim petition was filed pleading

that the deceased died on account of an accident arising out of and in the

course of his employment.

3. The claim petition filed by the respondent no.1/claimant

was contested by the appellant/insurance company. The contention of

the appellant/insurance company was that the employer/respondent

no.2 herein has stated that no doubt the deceased Lalit Dass @ Monu

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

vehicle, however, the respondent no.2 had on the said date given his

vehicle to the deceased Lalit Dass @ Monu for going to Mathura,

Uttar Pradesh to attend the marriage ceremony of a friend. It was

contended by the appellant/insurance company that once the deceased

did not die in an accident arising out of and in the course of

employment because the deceased had gone for a personal work to

Mathura, the impugned order wrongly holds that the deceased died on

account of an accident arising out of and in the course of employment.

4. The following issues were framed by the Employees Compensation Commissioner:-

"I. Whether there exists employer-employee relationship between deceased Sh. Lalit Dass alias Monu and respondent no-I? II. Whether the accident in which the deceased died occurred out of and in the course of his employment and if so, to what amount of compensation the claimants are entitled and what directions are necessary in this regard?

III. Relief, if any?"

5. The Employees Compensation Commissioner had held

that there existed a relationship of employer and employee and that the

accident happened arising out of and during the course of employment

in terms of paras 5 to 7 of the impugned judgment and these paras read

as under:-

"5. That the petitioner Smt. Nisha W/o Late Sh. Lalit Dass filed her evidence by way of affidavit dated 19.01.2016 exhibited as PW-1/A which she tendered on 04.02.2016. She has also filed documents such as copy of FIR, copy of Driving License of deceased, copy of PMR report, copy of ration card, copy of election card, copy of marriage card, copy of police verification report, etc. alongwith her affidavit which are placed in the file as PW-1/1 to PW-1/5. The ARR-1 and ARR-2 cross examined the petitioner but nothing adverse has been come out from the cross examination.

6. That the respondent no.1 Sh. Krishan Kant S/o Sh. Subhash Chand has also filed his evidence by way of affidavit dated 27.04.2016 exhibited as R-1W-1/A which he tendered on 28.04.2016. He has also filed documents i.e. copy of reply of D.A.R., certified copy of D.A.R., certified copy of evidence of Sh. Laxman Singh and Sh. Daya Shankar led before MACT, etc. which are also exhibited as Ex. RW1-1/1 to Ex. RW1-1/3. He was cross examined by the counsel for petitioner. In the cross examination, it has been admittedly proved that the deceased was employed as a Driver by the Respondent No-I and at the time of accident, the deceased was driving the vehicle with his consent. The petitioners and respondent no-2 filed their written arguments alongwith judgments of various courts in support of their contention which are taken on record. After hearing the arguments and going through the pleadings and documents on records, it was decided to conclude the proceedings of this case for passing necessary orders.

7. That in view of above facts and examination of pleadings/documents, written statements of respondents, evidence of petitioner and hearing of arguments in this case, the above issues are decided here below:-

I. As per the statement of respondent no-I, it has been admittedly established beyond doubt that the deceased was in his employment as driver and on the date & time of accident, the deceased was driving the said vehicle in question with his consent, therefore, it is established that there has been employer-employee relationship between the respondent no-I and the deceased and as such, Issue No-I stands decided accordingly. II. From the documents and statement of respondent no.-I, it is established/proved that the deceased had taken the vehicle in question for driving with the consent of respondent no-I, as such it can be construed without any doubt that there is a casual connection of employment and the accident has occurred while driving the vehicle. Therefore, the claimant/dependents of the deceased are entitled for receiving compensation for the death of deceased under the provisions of the Employees Compensation Act, 1923 and therefore, Issue No-II stands decided accordingly."

6. Learned counsel for the appellant very vehemently

argued that since it has come on record that the deceased Lalit Dass @

Monu had gone along with his friends to attend the marriage

ceremony of their friend at Mathura, the accident occurred not during

the course of employment of the deceased Lalit Dass @ Monu with

the respondent no.2 herein. Learned counsel for the appellant has

invited the attention of this court to the evidence led by the

employer/respondent no.2 that the deceased Lalit Dass @ Monu, with

the permission and authorization of the respondent no.2, had gone to

Mathura along with his friends to attend the marriage of his friend,

namely Vikas @ Golu. Learned counsel for the appellant has also

drawn the attention of this Court to cross-examination of the eye-

witness PW-2 Daya Shankar and who admitted that they had gone to

Mathura to attend the marriage of their friend Vikas @ Golu and the

vehicle was driven by the deceased Lalit Dass @ Monu and who was

also a friend of Vikas @ Golu. Learned counsel for the appellant has

also drawn attention of this Court to the FIR dated 20.11.2013

registered at the Police Station I.P. Estate and which FIR again talks of

the deceased Lalit Dass @ Monu along with the informant Daya

Shankar going to Mathura to attend the marriage of their common

friend Vikas @ Golu.

7. A first appeal lies to this Court under Section 30 of the

Employees Compensation Act only when there arises a substantial

question of law. In my opinion, merely because the deceased Lalit

Dass @ Monu had gone to Mathura to attend marriage of his friend

Vikas @ Golu along with Daya Shankar/PW-2 and other friends

would not mean that the deceased was not employed as a driver on the

vehicle in question. It is not the case of the appellant, and nor of the

respondent no.2 herein/employer that the deceased was not paid as an

employee/driver for taking his friends to Mathura to attend the

marriage of their common friend Vikas @ Golu. Surely a person can

wear two hats at one point of time, one being a person to attend the

marriage of his friend and yet other simultaneously being driving the

vehicle as an employee for taking other occupants of the vehicle to the

marriage of the common friend Vikas @ Golu at Mathura. There is no

case which is pleaded by the appellant that the deceased Lalit Dass @

Monu had gone without having received any payment for driving the

vehicle to Mathura. Merely because Vikas @ Golu was a friend of the

deceased Lalit Dass @ Monu would not necessarily mean that the

deceased Lalit Dass @ Monu had given his services free to the other

occupants of the vehicle including Daya Shankar for travelling to

Mathura.

8. The contention of the learned counsel for the appellant

placing reliance upon preliminary objection in the written statement of

the employer/respondent no.2 that the car/vehicle was taken by the

deceased Lalit Dass @ Monu for personal use and hence there was no

employment is a misconceived argument because taking vehicle with

friends will not mean that the deceased Lalit Dass @ Monu would not

have charged his friends any charges for taking them to Mathura. Not

only it is not the case of the employer/respondent no.2 that the

deceased did not take any charges from the other occupants of the

vehicle, even if this stand was taken the same cannot be believed by

this Court because employer/respondent no.2 in his cross-examination

conducted on 28.04.2016 admitted that in reply to notice issued by the

police under Section 133 of the Motor Vehicles Act,

employer/respondent no.2 had not stated that the vehicle had been

borrowed by the deceased Lalit Dass @ Monu for attending the

marriage of his friend. Once the two views are possible as per the

evidence on record, then no substantial question of law arises under

Section 30 of the Employees Compensation Act for this Court to

interfere in this first appeal against the finding of the Employees

Compensation Commissioner with regard to existence of relationship

of employer and employee and accident arising out of and in the

course of his employment.

9. Therefore, in my opinion, the Employees Compensation

Commissioner has committed no illegality in holding that there was a

relationship of employer and employee between the deceased and the

respondent no.2 herein and that the accident happened during the

course and arising out of employment.

10. Appeal is dismissed.

SEPTEMBER 07, 2017                       VALMIKI J. MEHTA, J
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