M/S Dhansa Filing Station (Thr ... vs Vijender Singh
2018 Latest Caselaw 644 Del

$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Decision: 29th January, 2018

+     FAO 147/2016 & CM No.12267/2016 & 12269/2016

      M/S DHANSA FILING STATION
      (THR PROPRIETOR YASHPAL)                            ..... Appellant
                         Through:       Mr. Radhir Kumar and Mr. Shashank,
                                        Advs.

                         versus

      VIJENDER SINGH                                     ..... Respondent
                    Through:            Mr. Prabhakar, Adv.

      CORAM:
      HON'BLE MR. JUSTICE J.R. MIDHA

                          JUDGMENT (ORAL)

CM No.12269/2016 The delay in filing the appeal is condoned. The application is disposed of.

FAO 147/2016

1. The appellant has challenged the order dated 03rd July, 2015 whereby the Commissioner, Employees' Compensation awarded compensation of Rs.1,98,405/- to the respondent.

2. The respondent filed an application for claim compensation before the Commissioner, Employees' Compensation claiming compensation on the ground that he was working under the appellant as a fuel pump operator

since 1979 and was transferred to the post of a driver on 15 th July, 1987 and was last drawing wages of Rs.4,000/- per month; the petrol tanker bearing No.DIG 7042 was not in a good condition because it was emitting carbon monoxide gas; the appellant did not repair or change the vehicle despite assurance; on 30th October, 2001, the respondent suffered Hemiparesis attack on his right side of the body but he recovered from it; on 29th November, 2006, the respondent suffered a second Hemiparesis attack on the right side of the body for which he was admitted in a hospital but has not completely recovered.

3. The appellant contested the claim petition on the ground that there was no employer-employee relationship between the parties; the respondent is a real maternal uncle of the appellant and was helping the appellant in the petrol pump because of the relationship; oil tanker bearing No. DIG 7042 was not owned by the appellant; the petrol tanker No. DIG 7042 was not emitting carbon monoxide gas as alleged by the respondent; the Hemiparesis attack suffered by the respondent in 2001 and 2006 has no concern with the nature of alleged work; and there was unexplained delay of more than three years in filing the claim petition.

4. Learned counsel for the appellant urged at the time of hearing that the Commissioner, Employees' Compensation has not given any finding with respect to the delay of more than three years in filing the claim petition. It is further submitted that there was no relationship of employer-employee between the parties. It is further submitted that no evidence was led by the respondent to show that the petrol tanker was owned by the appellant; the

petrol tanker was emitting carbon monoxide gas and further that the alleged disease of the respondent has no casual connection with the nature of job.

5. The record of the Commissioner, Employees' Compensation has been perused. The Hemiparesis attack was allegedly suffered by the respondent on 30th October, 2001 and 29th November, 2006 whereas the application for compensation was filed on 11th December, 2009. The respondent has neither filed any application for condonation of delay nor did he explain the delay of three years in the claim petition. The Commissioner, Employees' Compensation has also not given any finding on the delay in filing the claim petition. In view of the unexplained delay of more than three years, the claim petition is barred by limitation and liable to be dismissed. Notwithstanding the delay in filing the claim petition, no evidence whatsoever has been led by the respondent to prove that the alleged petrol tanker was emitting carbon monoxide gas. Admittedly, the respondent is not an expert and, therefore, an expert evidence was necessary to prove the same. According to the appellant, the carbon monoxide gas resulted in Hemiparesis attack for which the medical evidence was necessary to prove the same. Admittedly, no medical evidence whatsoever has been led by the respondent to prove that the Hemiparesis attack was caused due to the emission of carbon monoxide gas from the petrol tanker. This Court is of the view that there is no casual connection between the alleged employment of the respondent and the Hemiparesis attack suffered by him. As such, the appellant has failed to prove his case on merits. This Court is of the view that the impugned order of the Claims Tribunal is perverse and liable to be set aside.

6. The appeal is allowed and the impugned order dated 03rd July, 2015 is hereby set aside. The application for compensation filed by the respondent is dismissed as being barred by limitation as well as on merits.

7. The appellant has deposited Rs.1,95,405/- with the Commissioner, Employees' Compensation out of which Rs.50,000/- has been released to respondent No.1 and the balance amount is kept in three FDRs by UCO Bank, Delhi High Court Branch. UCO Bank, Delhi High Court Branch is directed to discharge the three FDRs and refund the amount to the appellant along with interest accrued thereon.

8. With respect to Rs.50,000/- released to the respondent subject to outcome of this appeal, learned counsel for the respondent submits that respondent is real maternal uncle of the appellant and the respondent be permitted to retain the said amount considering that he is suffering Hemiparesis disease and has no means of sustenance. The respondent's prayer is allowed and the respondent is permitted to retain Rs.50,000/- released to him in terms of the order dated 20th December, 2016.

9. Copy of this judgment be given dasti to learned counsels for the parties under signature of Court Master.

JANUARY 29, 2018                                      J.R. MIDHA, J.
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