M/S Pyrotron (India) Pvt. Ltd. vs Kripa Nath Jha & Ors.
2018 Latest Caselaw 2439 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 18.04.2018
+      FAO 164/2017, CM APPL. 2261/2015, CM APPL. 2262/2015
       CM APPL. 2264/2015, CM APPL. 25596/2017, CM APPL.
       31964/2017, CM APPL. 45833/2017, CM APPL. 15218/2018
       M/S PYROTRON (INDIA) PVT. LTD.                           ..... Appellant
                          Through:     Mr. O.P. Agarwal, Advocate.
                          versus
       KRIPA NATH JHA & ORS.                                  ..... Respondents

                          Through:     Mr. Gaurav Gupta, Advocate for R-1 &
                                       R-2.
                                       Mr. Gursharan Singh, Advocate for
                                       R-4.
       CORAM:
       HON'BLE MR. JUSTICE NAJMI WAZIRI
       NAJMI WAZIRI, J (Oral)

CM APPL. 45833/2017 (condonation of delay of 780 days) & FAO 164/2017

1. There is a delay of 780 days in filing this petition. It is sought to be explained on the basis that the appellants got to know about the impugned order only when notices of recovery proceedings were received and their premises were sealed. The said argument is refuted by the respondents. They argue that there is no justification to condone the delay because Mr. Lokesh Kumar, Director of M/s Pyrotron (India) Pvt. Ltd. knew fully well about the proceedings, which the appellant company chose to abandon. However, at the request of the appellant, if the Court were to assume that the

appeal should be heard on merits, as the learned counsel for the appellant submits that it is a good case on merits, the Court would observe as under:-

2. The appeal impugns the compensation award dated 25.09.2012 passed by the Commissioner, Employees Compensation. An amount of Rs. 1,60,665/- was awarded alongwith interest @ 12% p.a. from 30 days after the accident which happened on 02.12.1995. The claim for compensation was filed by widow and the two children of the deceased - Mr. Raman Kishore Jha. During the pendency of the claim petition and this litigation, the widow passed away without any benefit of the impugned order. The two children survive her. The employee died on 02.11.1995. The case has been pending for over 23 years and so far, no compensation has been released to the remaining family of the deceased employee.

3. The facts of the case are that one Mr. Raman Kishore Jha was working with the appellant since 1992 as Sales Engineer-cum-General Assistant on wages of Rs. 2500/- per month. On the instructions of the company, he went to Ludhiana on a two-wheeler on 01.11.1995 to bring some "control panels" from there. A colleague of his was his co-passenger on the two-wheeler during their return journey from Ludhiana the next date. Their two wheeler bearing no. PB-10-G-1710 was hit by another vehicle. Mr. Raman Kishore Jha sustained injuries, he was taken to a hospital where he was declared dead. An FIR was registered at Alipur Police Station, Delhi under sections 279/338/304A IPC. By a notice dated 15.04.1997, the appellant was called upon to pay the compensation to the claimants. He did not pay. Ms. Mithila Devi-the widow of the deceased died on 08.07.1998, therefore the petition was filed by the father of the deceased and the surviving two children of the latter. In its Written Statement, the appellant

denied that the deceased was ever its employee. The issues determined by the Commissioner, Employees Compensation were: (i) whether there was any employer-employee relation between Mr. Raman Kishore Jha and the respondent (the appellant herein); (ii) whether the accident occurred out of and during the course of employment; (iii) whether the claimants were the only LRs of the deceased.

4. The learned Commissioner recorded that despite the imposition of cost of Rs. 1,000/- on the company, M/s. Pyrotron (India) Pvt. Ltd., they did not appear in the proceedings, therefore they were proceeded ex-parte on 16.12.2007. The claimants led evidence through the deceased‟s father - Mr. Kripa Nath Jha. In his affidavit in evidence, he reiterated the averments in the claim petition and corroborated the same by relying on the FIR, Post Mortem Report and the Statement of witness-Mr. Jyotirmoy Chaudhary, who was the eye-witness of the accident and deposed that he alongwith the deceased was travelling on the two-wheeler which was hit by a motor vehicle, leading to the fatality. Mr. Chaudhary also deposed that the visit to Ludhiana was on a deputation by the employer and was in the course of discharge of duties of the employee. The respondent (present appellant) led no evidence. The claimant also filed the documents in the form of a photocopy of the ration card by an affidavit to the effect that Mr. Kripa Nath Jha, Smt. Ram Sagar Devi- mother of the deceased, Shri Rudra Shankar Jha son of deceased and Ms. Archana @ Sapna-daughter of the deceased, were the only LRs of the deceased. His mother Smt. Ram Sagar Devi passed away on 19.06.2012. Apropos, whether the employer-employee relationship existed and whether the accident occurred during the course of employment, the learned Commissioner concluded as under:-

"10. The petitioners in the claim application have stated that Shri Raman Kishore Jha was in the employment of respondent as Sales Engineer-cum-General Assistant and he was drawing wages @Rs.2500/- per month. On 1.11.95, he was deputed to go to Ludhiana for bringing a two wheeler scooter and some items like control panels. When he alongwith another colleague was returning from Ludhiana on the two wheeler they were hit by a vehicle. He sustained injuries and was taken to Hindu Rao Hospital and he was declared brought dead. The petitioners are widow, parents and the children of the deceased. FIR No.309/95 was registered under Police Station Alipur under Section 279/338/304A I.P.C. They have filed documents prepared by the Police Authorities pertaining to the accident. Evidence have been adduced by them and also testimony of the eye witness is there to confirm the death out of and during the course of employment, Shri Lokesh Kumar son of Sh. Purushotam Prasad alongwith petitioner identified the body of the deceased, who is one of the person of management (Ex.PWI/G). There is no contra evidence. Hence, I have no material to disbelieve the claimants. I hold that the employer- employee relationship exists between the deceased workman and respondent and death has been caused in the accident occurred out of and during the course of employment and the said issues are decided in favour of the applicants and against the respondent".

5. Consequently, since the aforesaid case was established, he went onto conclude the quantum of compensation and the same was awarded as Rs. 1,60,665/-. Although, it was claimed that the deceased was drawing wages @ Rs.2,500/- per month, but considering the Written Statement of the respondent (present appellant) that he was not their employee and in the absence of any documentary evidence that an amount of Rs. 2,500/- was

being paid to the deceased, the learned Commissioner took into consideration the minimum relevant wages that were payable to an employee of the deceased, i.e., Rs. 1,545/- per month and his age was taken as 30 years as mentioned in the Post Mortem Report, for a compensation of Rs. 1,60,665/- which was awarded.

6. This award of compensation has been impugned in this appeal on the ground that the deceased was never the employee of M/s Pyrotron (India) Pvt. Ltd. However, apart from this statement in the reply, no evidence was led otherwise to prove that he was not the employee. The learned counsel for the appellant relied upon the judgment of this Court in United India Insurance Co. Ltd. vs. Rajender Singh & Anr. in FAO No. 258/2016 decided on 31.10.2017 to contend that it is for the claimant to discharge the onus of claimed employment with the employer and for the Commissioner to examine the same. He also relied upon a copy of Form-6 issued by the Employees‟ State Insurance Corporation being a statement of Returns of Contributions under Regulations 26 of Employees‟ State Insurance Act, 1948, it purportedly shows that one Mr. Raman Kishore was employed by M/s Locrton Systems & Controls having its office at M-134, St. No. 8, Shastri Nagar, New Delhi-52. The said enterprise is a proprietorship company owned by Mr. Lokesh Kumar. This return pertains to October 1995 and March 1996. The emphasis that this period would cover the deceased employee of M/s Locrton Systems & Controls since the fatal accident happened on 02.11.1995. These documents were never placed before the learned Commissioner, Employees‟ Compensation, therefore, they cannot be considered by this Court. The Court would note that Mr. Lokesh Kumar proprietor of M/s Locrton Systems & Controls is also the

owner of M/s Pyroton India Pvt. Ltd. (the present appellant). This document was always in possession of Mr. Lokesh Kumar and when the Written Statement/reply was filed on behalf of M/s Pyroton India Pvt. Ltd., this document could have well been produced in the claim proceedings so that the claimant, if required, could have substituted M/s Locrton Systems & Controls, instead of staying silent. The appellant‟s deliberate silence would not create any right in its favour. In any case, the said documents were never a part of the proceedings before the Employees‟ Commissioner and they cannot be considered at the appellate stage.

7. The Court would note that the person who has filed an affidavit was Mr. Lokesh Kumar, the Director of M/s Pyroton having its office in Gali No.1, M-174, Shastri Nagar, Delhi-110052. The impugned order has noted that the said Mr. Lokesh Kumar s/o Mr. Purushotam Prasad identified the body of the deceased, he was a person of the „Management‟ (Exh. PW1/G). This exhibit has not been controverted by the appellant in the absence of any material to disbelieve the claim but it was rightly concluded that the relationship of employer and employee was established. It is only logical that if the deceased-Mr. Raman Kishore Jha was never the employee of Mr. Lokesh Kumar, there was no reason for him to accompany Mr. Kripa Nath Jha to the hospital and to identify the dead body. Furthermore, there was no occasion for the father to know Mr. Lokesh Kumar and for the latter to take Mr. Kripa Nath Jha to the hospital and retrieve his body. Additionally, there is the deposition of Mr. Jyotirmoy Chaudhary to the effect that the deponent was in the employment of M/s Pyrotron India (P) Ltd. The deponent was deputed to go to Ludhiana for bringing a two wheeler scooter and some items like control panels etc. from 407, Ahluwalia Street Miller Ganj,

Ludhiana on 01.11.1995 alongwith one Mr. Raman Kishore Jha (the deceased employee), who was also the employee of the said company; that when the deponent and the deceased were coming on scooter No.PB-10-G- 1710 from Ludhiana on 02.11.1995 and reached near the Village Bakoli within the jurisdiction of P.S. Alipur, Delhi, they were hit by some unknown vehicle as a result of which Ram Kishore Jha died and the deponent sustained injuries. The deponent was driving the scooter at the time of accident; the accident had occurred out of and during the course of employment as the deponent and his other associate Raman Kishore Jha (since deceased) were on duty and were coming from Ludhiana to Delhi under the instructions of their employer in the discharge of their duties. This evidence remains uncontroverted.

8. The FIR dated 03.11.1995 records the accident and the fact that the deceased had been brought dead to hospital. There was another person who was injured in the said accident-Mr. J.S. Chaudhary s/o Mr. B.M. Chaudhary. The aforesaid deposition of Mr. Jyotirmoy Chaudhary s/o Mr. B.M. Chaudhary remain unrebutted. The accident was established; that it happened while discharging duties of employment has not been controverted; the deposition that the deceased was in the employment of the respondent, has also not been controverted.

9. The reasoning for and the conclusion arrived at in the impugned order calls for no interference. This petition is without merit and accordingly, it is dismissed.

10. The learned counsel for the respondent submits that respondent no. 3 has since passed away. The deceased employee is survived only by his father Mr. Kripanath Jha and his son Mr. Rudra Shankar Jha. In the

circumstances, the awarded amount alongwith interest accrued thereon shall be released to them in their respective bank accounts, details of which shall be furnished before the Commissioner, Employees Compensation. The Court would however note that since the appellant in terms of section 4A Employees Compensation Act, 1923, was issued notice on 15.04.17, they are liable to 50% of the compensation award. In the circumstance, issue notice to the appellant as to why the penalty be not imposed on them.

11. Mr. Gaurav Gupta, the learned counsel for respondent nos. 1 & 2 and Mr. Gursharan Singh, the leaned counsel for respondent no. 4 accept notice and seeks time to file the replies.

12. An amount of Rs.5,81,894/- is stated to have been deposited by the appellant in compliance of the compensation amount on 23.08.2017. Evidently, amount deposited is not a total compliance of the impugned order. Let the entire amount alongwith interest thereon be deposited by the appellant within two weeks from today.

13. The learned counsel for the claimant states he will ascertain about the amount due and if there is any shortcoming, he will inform the learned counsel for the appellant, who shall upon information, deposit the balance amount within four weeks. The amounts lying deposited shall be released to the surviving respondents within two weeks from today.

14. At the request of the learned counsel for the appellant, renotify for compliance on 21.05.2018.

NAJMI WAZIRI, J APRIL 18, 2018 RW