Delhi High Court
Hdfc Ergo General Insurance Co Ltd vs Jagram & Ors on 5 October, 2018
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 05th October, 2018
+ FAO 521/2016 & CM No.41336/2016
HDFC ERGO GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr. Pankaj Gupta, Advocate
versus
JAGRAM & ORS ..... Respondents
Through: Mr. R.K. Nain, Advocate for R1.
Mr.Yogesh K. Chandna, Advocate for
R2 and R3.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the order dated 27 th May, 2016 whereby
compensation of Rs.10,24,176/- has been awarded to respondent No.1.
2. The respondent No.1 filed an application for compensation before the
Commissioner, Employees' Compensation claiming compensation on the
averments that he was employed as a driver on the truck bearing No. HR-
55E-8474 and was coming from Kartarpur near Jalandhar to Delhi; on 20th
May, 2011 at about 11:30 P.M, respondent No.1 was cleaning the glass of
his truck when suddenly another vehicle in front reversed and hit respondent
No.1 who was crushed between the two vehicles; respondent No.1 suffered
grievous injuries as his intestines ruptured and he was taken to Sidhu
Hospital Pvt. Ltd. from where he was shifted to Safdarjung Hosptial and
thereafter, to Dr. Ram Manohar Lohia Hospital; respondent No.1 suffered
amputation of his right leg and 100% disability with regard to his right lower
limb; and the accident arose out of and during the course of his employment
with respondent No.2.
3. The Commissioner, Employees' Compensation held that the accident
arose out of during the course of employment of respondent No.1 with
respondent No.2. The Commissioner awarded compensation of
Rs.8,70,576/- and medical expenses of Rs.34,282/-.
4. Learned counsel for the appellant urged at the time of hearing that the
respondent No.1 has not proved the relationship of employment with
respondent No.2. It is submitted that in cross-examination, respondent No.1
admitted that he was not permanently employed with respondent No.2 and
was asked to drive the truck in which the accident occurred.
5. Learned counsel for respondent no.1 urged at the time of the hearing
that respondent no.1 was an "employee" within the meaning of Section
2(1)(dd) of the Employees' Compensation Act. It was submitted that the
definition of "workman" in Section 2(1) (n) of the Workmen's
Compensation Act was amended in the year 2000. It was submitted that
Section 2(1) (n) of the Workmen's Compensation Act, 1923 was amended
by Workmen's Compensation (Amendment) Act, 2000 with effect from 8 th
December, 2000 whereby the words "other than a person whose employment
is of a casual nature and who is employed otherwise than for the purposes of
the employer‟s trade or business" in the definition of „workman‟ in Section
2(1) (n) were omitted. The effect of the omission of words "other than a
person whose employment is of a casual nature and who is employed
otherwise than for the purposes of the employer‟s trade or business" in the
definition of workman in Section 2(1)(n) by the amendment in 2000 is that a
person whose employment is of a casual nature and is employed other than
for the purposes of the employer's trade or business, would be covered
within the meaning of "employee" as defined in Section 2(1)(dd) of the
Employees Compensation Act and entitled to compensation against the
principal under section 12 of the Employees Compensation Act. Reliance
was placed on Govind Goenka v. Dayawati, 2013 ACJ 1897 in which this
Court held that after the amendment, the workman whose employment is of
casual nature and who is employed otherwise than for the purpose of
employer's trade or business, would also be covered within the definition of
"workman".
6. The definition of „workman‟, as it originally existed in the Workmen's
Compensation Act, 1923, excluded the workmen whose employment was of
a casual nature and who were employed otherwise than for the purpose of
employers "trade or business". Section 2 (1) (n) of the Workmen's
Compensation Act, 1923 was amended by Workmen's Compensation
(Amendment) Act, 2000 with effect from 8th December, 2000 whereby the
words "other than a person whose employment is of a casual nature and
who is employed otherwise than for the purposes of the employer‟s trade or
business" in the definition of „workman‟ in Section 2(1) (n) were omitted.
The effect of the omission of words "other than a person whose employment
is of a casual nature and who is employed otherwise than for the purposes of
the employer‟s trade or business" in the definition of workman in Section
2(1)(n) by the amendment in 2000 is that a person whose employment is of a
casual nature and who is employed other than for the purposes of the
employer's trade or business is covered within the meaning of "employee"
as defined in Section 2 (1) (dd) of the Employees Compensation Act.
7. Section 2(1) (n) of the Workmen's Compensation Act, prior to the
Workmen's Compensation (Amendment) Act, 2000 read as under:
"Section 2(1) (n) -
"workman" means any person (other than a person whose
employment is of a casual nature and who is employed otherwise
than for the purposes of the employer‟s trade or business) who is -
(i) .........
(ii) employed ****]2 in any such capacity as is
specified in Schedule II, whether the contract of
employment was made before or after the passing of
this Act and whether such contract is expressed or
implied, oral or in writing; but does not include any
person working in the capacity of a member of the
Armed Forces of the Union; and any reference to a
workman who has been injured shall, where the
workman is dead, include a reference to his dependants
or any of them."
(Emphasis supplied)
8. Section 2(1)(n) of the Workmen's Compensation Act, after the
Workmen's Compensation (Amendment) Act, 2000 reads as under:
"Section 2(1) (n) -
"workman" means any person who is -
(i) .........
(ia).........
(ii) employed in any such capacity as is specified in
Schedule II, whether the contract of employment was
made before or after the passing of this Act and
whether such contract is expressed or implied, oral or
in writing; but does not include any person working in
the capacity of a member of the Armed Forces of the
Union; and any reference to a workman who has been
injured shall, where the workman is dead, include a
reference to his dependants or any of them."
(Emphasis supplied)
9. Workmen's Compensation Act was again amended in 2009 by
Workmen's Compensation (Amendment) Act, 2009 with effect from 18 th
January, 2010 whereby the words "workman" and "workmen", were
substituted with the words "employee" and "employees". The Workmen's
Compensation (Amendment) Act, 2009 omitted Section 2(1)(n) that defined
"workman" and replaced it by Section 2(1)(dd) which defined "employee",
though the substance of the definition remained the same. The aforesaid
amendment also changed the name of the Workmen's Compensation Act to
Employee's Compensation Act. Section 2(1)(dd) of the Employee's
Compensation Act reads as under:
"Section 2(1) (dd) -
"employee" means a person, who is -
(i) .........
(ii) .........
(iii) employed in any such capacity as is specified in
Schedule II, whether the contract of employment was
made before or after the passing of this Act and whether
such contract is expressed or implied, oral or in writing;
but does not include any person working in the capacity
of a member of the Armed Forces of the Union; and any
reference to any employee who has been injured shall,
where the employee is dead, include a reference to his
dependants or any of them;"
10. In Govind Goenka v. Dayawati (supra), this Court examined the
effect of Workmen's Compensation (Amendment) Act, 2000 and held that,
after the amendment, the workman whose employment is of casual nature
and who is employed otherwise than for the purpose of employer's trade or
business, would also be covered within the definition of "workman".
Relevant portion of the said judgment is reproduced hereunder:
"8. So far as the definition of workman envisaged in Section
2(n) of the said Act is concerned, there has been a drastic change
in the definition of the "workman" as it stood prior to the
amendment and after the amendment. Prior to the amendment,
certainly the workman whose employment was of a casual nature
and who was employed otherwise than for the purpose of trade or
business of the employer would not fall in the said definition.
However, after the amendment of the said definition through
the Amending Act 46 of 2000, the Parliament had removed the said
mischief which was then prevailing and coming in the way of such
casual workmen who met with an accident during the course of the
employment unconnected with the employer's trade or business.
With the amendment of the said definition, now certainly the
workman whose employment is of casual nature and who is
employed otherwise than for the purpose of employer's trade or
business would also be covered within the definition of workman."
(Emphasis supplied)
11. This Court is of the view that the casual employment of the claimant
was sufficient for awarding compensation under the Employee's
Compensation Act, in view of the Workmen's Compensation (Amendment)
Act, 2000.
12. The appeal is dismissed. Pending application is disposed of.
13. The Trial Court record be returned back forthwith.
14. Copy of this judgment be given dasti to counsels for the parties under
signatures of the Court Master.
OCTOBER 5, 2018 J.R.MIDHA, J.
ak
