Usha Devi & Ors. v. Pradeep Kumar & Ors.

1. The present appeal is filed by the appellants/claimants in terms of Section 30 of the Employees Compensation Act, 1923[1] assailing the Impugned order dated 15.01.2016 passed by the learned Labour Commissioner, Vishwakarma Nagar, New Delhi[2], whereby the claim application bearing No. CEC-D/ED/25/09/493, filed under Section 22 of the EC Act was dismissed.

FACTUAL BACKGROUND:

2. Briefly stated, it was the case of the appellants/claimants that on 02.07.2009 at about 6.00AM, the deceased Sh. Surender Kumar who was working as a driver with Respondent no. 1 on monthly wages of Rs. 6000/-, met with an accident while driving a TSR (Three-wheeled scooter rickshaw) bearing no. DL-1RL-6471 at Madanpur Khadar near EC Act

2 Commissioner Claim Application Badarpur, Delhi, resulting in his death. Subsequently, Post mortem was conducted at Jai Prakash Narayan Hospital, Delhi and FIR NO. 187/2009 was registered by the police.

3. During the proceedings before the learned Commissioner, the Respondent no.1/Pradeep Kumar/Employer denied the Employer[4] – Employee[5] relationship in his written statements and also the fact that the deceased was drawing wages of Rs. 6000/- per month. Further Respondent No.2/M/s Future Generali Insurance Co. Ltd. and Respondent No.3/Mukesh Kumar Bhaskar in their respective written statements contested the claim and pointed out that the deceased had no valid permit to drive a TSR and this was in violation of the Motor Vehicles Act, 1988[6], and thus, they are not liable for any compensation.

4. The learned commissioner framed the following issues: i. Whether there exists a relationship of employee and employer between the claimant and R1/R[3] ? ii. Whether the accident resulting into death of deceased workman occurred out of and during the course of his employment with the Respondent ? iii. If so to what amount of compensation, the defendants of the deceased workman are entitled to and who is liable to pay the compensation ? iv. Relief if any ? Section 2(1)(e)EC Act, “employer” includes anybody of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a2[employee] are temporarily lent or let on hire to another person by the person with whom the 2[employee] has entered into a contract of service or apprenticeship, means-such other person while the 2[employee] is working for him. Section 2(dd)(c) EC Acta person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle. MV Act

5. Learned commissioner on appreciating the evidence on record observed that the claimants have not produced any employment details of the deceased except oral statements. Further, it was held that the deceased was not having a valid permit/license to drive a TSR vehicle; and thus, the deceased did not fall under the definition of an “employee” and the respondent was also outside the ambit of the definition of an employer as per the EC Act. It would be pertinent to mention the observations of the court, which are reproduced as under: “9. In view of the fact and circumstances discussed above, I find it difficult to believe plying the TSR on the basis of salary by the deceased. The Claimants have not stated any details of his employment except oral statement or receipt of salary from the R-

1. Plying TSR on a basis of contractual basis i.e. on the basis of per day rent, may be explainable, though it would also be illegal. A void and illegal contract cannot be enforced by the courts. In such a situation deceased like the case in present would not fall under the definition of the employee under the Section 2(1)(dd) and the respondent is also not covered under the definition of employee given in Section 2(1)(e) of the Employee’s Compensation Act, 1923”.

6. In the concluding observations, the claimants relied on two judgments P.P. Mohammad v. K. Rajappan[7] and National Insurance Company Ltd., v. Hanumantharayappa and Ors.8, which the court held were not relevant to the present facts and circumstances of the case. The Commissioner was also in agreement with Respondent no.3 with respect to the fact that claim of the claimant was on the basis of an accident by a TSR covered under the MV Act, which was beyond the jurisdiction of the court. Accordingly,

7. The appellants / claimants in the present appeal allude to the fact that the deceased met with an accident while driving a TSR vehicle and was earning Rs. 6000/- monthly. Further, they canvass the fact that a premium was charged by the insurance company for the liability of the driver. Lastly, the appellants have placed reliance on National Insurance Company Limited v. Badami Devi & Ors[9] passed by this court. Hence, the appellants have filed this present appeal before this court.

ANALYSIS & DECISION:

8. Having heard my thoughtful consideration to the submissions advanced by learned counsels for the parties at the Bar and on perusal of the record including the record of the proceedings before the Commissioner, Employee’s Compensation, I am afraid that the present appeal is bereft of any merits.

9. It is pertinent to mention that initially, respondent No.1 was joined, who in his reply contested that there is a relationship of employer and employee between the parties at any point of time in the past. There was no substantive evidence led to show that the deceased was employed under him and drawing a monthly salary of Rs. 6,000/per month.

10. During the course of proceedings, the appellants/claimants made a significant change and pursuant to the application under Order

1 Rule 10 CPC, they impleaded respondent No.3 and claimed that he was the owner of the offending TSR vehicle. Even respondent No.3 in his reply, hotly contested that the deceased was employed under him in any manner; and stated that he had neither knowledge of his age nor his employment with anyone including respondent No.1. On the contrary, he claimed that respondent No.1 was the owner of the vehicle till the relevant time.