Full Text
HIGH COURT OF DELHI
FAO 68/2023
Date of Decision: 13.04.2023 IN THE MATTER OF:
M/S SHIVI METAL .... Appellant
Through: Mr.Sunil Kumar Ojha, Advocate
Through: Mr.Divyam Nandrajog, Panel Counsel, GNCTD with
Mr.Mayank Kamra, Advocates for respondent No.2.
JUDGMENT
CM APPL. No.13232/2023 (Exemption)
1. Allowed subject to all just exceptions.
2. The application is disposed of. FAO 68/2023 & CM APPL. No.13230/2023 (Stay) & CM APPL. No.13231/2023 (Delay)
1. The appellant has preferred the present appeal under Section 30 of the Employee’s Compensation Act, 1923 (hereinafter referred to as the ‘Act’) impugning the orders dated 22.09.2021 and 28.03.2022 passed by learned Commissioner, Employee’s Compensation, District, North-West, Delhi in Case No.ECI/48/NW/21/617-18.
2. The primary contention raised on behalf of the appellant is that the appellant was wrongly proceeded ex-parte as no summons of the claim proceedings were served on him. Additionally, it was contended that the claim petition ought not to have been entertained as the claimant had already settled his claim vide Settlement Agreement dated 26.02.2021.
3. The facts, as noted in the impugned order by the Tribunal, are as under:
4. The impugned order records that the present appellant being employer was served, however despite service, he neither appeared nor filed any written statement and resultantly, he was proceeded ex-parte on 22.09.2021. The claimant led evidence in support of his case whereafter the learned Commissioner vide impugned order dated 28.03.2022 allowed the claim application. Subsequently, in terms of mandate of Section 4A(3)(b) of the Act, proceedings were held for consideration on the amount of penalty. A notice was issued to the appellant, however again he neither appeared nor filed any reply resulting in passing of the order on 18.04.2022 whereby penalty of 30% was imposed upon him.
5. Learned counsel for the appellant has disputed the factum of service of summons. It is contended that summons were served on one Tarkesh who has no concern with the appellant. It is further contended that at the relevant time not only the appellant was unwell, but his family members were also under medical treatment. In this regard, a reference is made to the medical document i.e. discharge summary issued by Pentamed Hospital, as per which, appellant’s wife remained admitted from 07.09.2021 to 09.09.2021.
6. A perusal of the Trial Court Record would show that in the proceedings before the learned Commissioner, the claimant had duly proved the factum of service by placing the tracking report on record. As per the said Report, summons were duly served on 11.09.2021 at the registered address of the appellant at C-14/1, Second Floor, Industrial Area, Wazirpur, Delhi-110033, which were received by one Tarkesh. Subsequently, summons in the penalty proceedings were also sent at the same address and were delivered to Sh.Sumit Jain (proprietor of the appellant) on 07.04.2022. The appellant failed to appear and respond to the summons on both the occasions. A perusal of the appeal would show that the same has been filed by the present appellant through its proprietor Sh.Sumit Jain using the same address i.e. C-14/1, Second Floor, Industrial Area, Wazirpur, Delhi-110033. As such, the contention raised has no merit and the same is rejected. Further, while explaining the delay, the submission that Sh.Sumit Jain was unwell is not supported by any medical document and the medical documents relating to other family members are of no avail to the appellant while explaining delay of 322 days.
7. Even on merits, the contention that the claimant having settled the matter could not have filed the claim petition is meritless as in the proceedings, the claimant had not only disclosed the factum of settlement but also placed the settlement on record. In fact, learned Commissioner relied upon the settlement to conclude that it established the employeremployee relationship between the parties.
8. In the considered opinion of this Court, the settlement under which only meagre amount of Rs.17,079/- p.m. was paid to the claimant would not disentitle him to seek statutory compensation under the Act. Even otherwise, while imposing penalty of only 30%, the said aspect was seemingly taken into consideration by learned Commissioner.
9. In view of the above, I find no grounds to interfere with the conclusion arrived at in the impugned order. Accordingly, the appeal is dismissed alongwith pending applications.
JUDGE APRIL 13, 2023