Sunil Kumar v. Som Nath & Anr.

1. Allowed, subject to all just exceptions.

2. Application stands disposed of. FAO 50/2023 and CM APPL. 10701/2023 (Interim Stay)

1. By way of the present appeal filed under Section 30 of the Employees’ Compensation Act, 1923 (hereinafter, referred to as the ‘EC Act’), the appellant seeks setting aside of the order dated 23.12.2022 passed by the learned Commissioner, Employees' Compensation in Case No. CEC-D/NE/41/2018/324, vide which respondent No.1/claimant was awarded death compensation in respect of his son.

2. The facts, in nutshell, are that in the claim application, it was averred by the claimant that his son Ajay Kumar alongwith other laborers was engaged in the work of taking down tin shed for the appellant at his factory. He was paid Rs.500/- per day. On 16.04.2018, the appellant had called Ajay Kumar alongwith two other labourers to carry out the said work. Before carrying out the work, Ajay Kumar had asked the appellant to arrange safety equipment. Though the appellant promised to provide the same, he failed to fulfill his promise. At about 02:30 PM, Ajay Kumar slipped from a ladder and fell. He was taken to J.P.C Hospital, Delhi by two persons i.e., Faizan and Veer Singh, from where he was referred to G.T.B Hospital. At the latter hospital, Ajay Kumar was declared ‘brought dead’.

3. Learned counsel for the appellant has assailed the impugned order by contending that the claimant had shown a residential address in the claim petition, as opposed to the address of a factory. It is further contended that the appellant had asked proprietor of respondent No.2/M/s Ayan Khan Fabricators, i.e. Faizan to carry out the removal of tin shed and the deceased was working with respondent No.2. As such, the deceased was not employee of the present appellant and it was only respondent No.2 who was liable to pay compensation.

4. At the outset, it is deemed expedient to outline the scope of appeal filed under Section 30 of the EC Act as delineated in North East Karnataka Road Transport Corporation v. Sujatha reported as (2019) 11 SCC 514. In the captioned case, the Supreme Court has reiterated that the scope of interference in an appeal filed under Section 30 of EC Act is limited to substantial questions of law and findings of facts proved either way, are not to be likely interfered with. Relevant excerpt from the decision is reproduced hereunder:-

5. During the course of submissions in the present case, it has been contended that the appellant had purchased the subject site after the incident, however a perusal of the cross-examination of the appellant would show that he had admitted that subject site was purchased prior to the incident. The appellant further admitted in para 6 of his affidavit that he had called the deceased, alongwith two other workers, to deinstall tin shade. It was suggested to him that on 16.04.2018, the deceased had fallen from a ladder while working at his factory. The same was denied for want of knowledge.

6. Before the learned Commissioner, M/s Ayan Khan Fabricators was impleaded as respondent No.2 through its proprietor Faizan, who supported the claim petition. He deposed that he, alongwith the deceased and Veer Singh, used to remove tin at the premises of the appellant on daily wages @ Rs.500/-. He further deposed that the deceased had objected to working without safety equipment, whereafter assurance of arranging the same was given by the appellant but no arrangement was made. In his cross-examination, he also admitted that he alongwith Veer Singh had taken the deceased to JPC Hospital. Respondent No.2 was not cross-examined on behalf of the present appellant.

7. Accordingly, from the records, it stands established that the claim petition was duly supported by Faizan. Besides, the ownership and possession of the subject site was not disputed by the appellant.

8. In view of the above, I find no ground to entertain the present appeal. The same is dismissed, alongwith the pending application.

JUDGE MARCH 06, 2023