Full Text
HIGH COURT OF DELHI
JUDGMENT
FUTURE GENERALI INSURANCE CO LTD ..... Appellant
Through: Mr. Rajeev M. Roy and Mr. P.
Srinivasan, Advs.
Through: Mr. Chandan Prajapati, Adv. for R-1 and R-2
Ms. Prachi Singh, Adv. for R-4 with Mr. Arvind Bansal, SSO
1. This judgment shall decide the present appeal filed by the appellant under Section 30 of the Employees‟ Compensation Act,, assailing the impugned judgment dated 29.07.2016/02.08.2016 passed by the Commissioner, Employee‟s Compensation, Delhi, in Case No. CWC/CD/I4/I4/I431 titled „Sh. Rameshwar Choudhary &Anr. V. M/s Furture Generali India Insurance Company Ltd. &Anr.‟, whereby an amount of Rs.8,69,574.00/- has been awarded as compensation to the claimants/respondent Nos. 1 & 2, i.e., Sh. Rameshwar Choudhary and Smt. Fullo Devi, for the death of their son Sh. Ganga Ram, and the liability to pay compensation has been fastened upon the appellant/Insurance Company. 1 EC Act
FACTUAL BACKGROUND:
2. Succinctly put, the deceased Sh. Ganga Ram Choudhary, aged 19 years and stated to be drawing wages @ Rs. 8,000/- per month at the time of death, was the son of respondent Nos. 1 and 2. He was employed by respondent No. 3 i.e., M/s Jauhar Logistics Pvt. Ltd. as loader on vehicle/truck bearing No. HR-55J-9615, which was owned by respondent No. 3 and insured with the appellant herein, i.e., M/s Future Generali India Insurance Company Ltd., vide policy NO. 2012-V2164374-FCV for the period from31.12.2012 to 30.12.2013. It is the case of respondents that on the fateful night of 23/24.07.2013, the truck was involved in an accident, grievously injuring the deceased, who eventually succumbed to the injuries on 27.07.2023. Pursuant to this series of events, since the deceased died during the course of his employment with respondent No. 3 on his vehicle/truck, his bereaved parents approached the learned Commissioner under the EC Act seeking compensation and interest @ 12% p.a. from date of accident till its realization.
3. Additionally, since due to the accident the vehicle also suffered damages, an Own Damage Claim[2] was filed with the appellant herein by respondent No. 3, and the same was paid for loss of vehicle upon due verification. However, C.M. Appl. No. 51022/2019 seeking production of OD Claim records from the possession of the appellant, is still pending before this court.
PROCEEDINGS BEFORE THE LEARNED COMMISSIONER
AND THE IMPUGNED ORDER: 2OD Claim
4. The appellant herein contended that the claim application under EC Act was not maintainable since the deceased was an employee covered under the Employees‟ State Insurance Act, 1948[3], and thus by virtue of application of Section 53 of the ESI Act, the claim application against the applicant was not maintainable in law, which stance was rejected by the learned Commissioner vide orders dated 23.07.2014 and 05.09.2014. Furthermore, it was contended that the deceased was not „in employment‟ or „during the course of employment‟ with the appellant herein at the time of accident since he was returning home from work; and that the cause of death of deceased was being hit on his chest and stomach by a raged bull on the road, as had been recorded in the Death Summary prepared by Park Hospital and the Statement of the deceased when admitted in ESI Hospital (Annexure A-12 colly).
5. On the basis of the pleadings by the parties, the following issues were framed for consideration by the learned Commissioner: - “(i) Whether deceased Sh. Ganga Ram Choudhary met with an accident resulting into his death which was out of and in the course of his employment withrespondent No. 1?
(ii) If so, what relief and what directions are necessary in this respect?”
6. In deciding that the deceased met with the accident „arising out of‟ and „during the course of employment‟, the learned Commissioner made the following observations in adjudication of issue No. 1: -
7. The following observations were made when deciding upon the issue of relief: -
GROUNDS FOR APPEAL:
8. The impugned order has been assailed inter alia on the grounds that the learned Commissioner did not have jurisdiction since claim under the EC Act is not maintainable as the deceased was insured with ESIC and covered under the ESI Act; and that the compensation ought not to have been granted since the entity with which the deceased was employed i.e., M/s. Fidelity Manpower Services Pvt. Ltd., was not even a party to the proceedings under the EC Act and the deceased was not employed with respondent No. 3. Further, it is alleged that the impugned order has been made based on conjectures and surmises and thus, it is prayed that the same be set aside.
ANALYSIS & DECISION:
9. I have given my thoughtful consideration to the submissions advanced by learned counsels for the rival parties at the Bar[4]. I have also perused the relevant records of the case including the digitized Trial Court Record and the case-laws cited at the Bar. Written submissions filed on behalf of respondents No.1 and 2 on 05.01.2024
10. First things first, it is a well settled position in law that an appeal provided under Section 30 of the EC Act lies to the High Court from the following orders of a Commissioner, illustrated as under:- “Section 30 Appeals: (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely— (a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (aa) an order awarding interest or penalty under Section 4- (b) an order refusing to allow redemption of a half-monthly payment;
(c) an order providing for the distribution of compensation among the dependants of a deceased employee, or disallowing any claim of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of Section 12”
11. It is further provided by way of proviso that no appeal lies against any order unless a substantial question of law is involved in the appeal.
12. In the case of North East Karnataka Road Transport Corporation vs. Sujatha[5], the Supreme Court had an occasion to consider the entire scope and ambit of Section 30 of the EC Act. In the context of what would constitute a substantial question of law, it was held as under:-
13. In view of the aforesaid position of law, without further ado, reverting to the instant appeal, the learned Commissioner has given a categorical finding that the deceased workman suffered fatal injuries during the course of his employment with respondent No.3 while he was working and travelling in the ill-fated offending vehicle.
14. The plea canvassed during the appeal was that deceased was an employee of M/s. Fidelity Man Power Services Pvt. Ltd. and that he was covered under the ESI Act, is a bald allegation, which was not substantiated during the course of inquiry/trial before the learned Commissioner.
15. It goes without saying that the burden of proving such vital fact was upon the appellant/ Insurance Company and they did not bother to summon any witness from the said company and examine any witness with regard to the alleged employment of the deceased in such company, and therefore, having failed to discharge the burden of proof, the plea does not merit any attention. Therefore, the plea that the claim was barred under Section 53 of the ESI Act does not come into play.
16. To sum up, I find that the learned Commissioner has not committed any illegality, perversity nor he has adopted any incorrect approach in law in passing the impugned judgment dated 29.07.2016/02.08.2016.
17. Before parting with this case, this court does not approve the conduct of the appellant/Insurance Company, which has deliberately omitted to place on record the OD Claim Records, thereby suppressing material facts from this Court. The appeal appears to be misconceived in law and ill motivated. Therefore, while dismissing the present appeal, the appellant/Insurance Company is imposed with costs of Rs.50,000/-. The entire cost so awarded be paid to the respondent Nos.[1] and 2, who are the legal heirs/surviving parents of the deceased, in equal shares.
18. The appeal along with the pending application is disposed off accordingly.
DHARMESH SHARMA, J. FEBRUARY 13, 2024 SM/SA