Naresh Kumar Aggarwal v. Shano & Ors.

1. By way of present application, the applicant/appellant seeks condonation of delay of 30 days in re-filing the present appeal.

2. Mr. Saurabh Munjal, learned counsel for the appellant submits that the impugned order was passed on 30.10.2019 and the instant appeal was filed on 20.12.2019. It is submitted that thereafter though some objections were raised by the Registry, which could not be cured timely as the Court was closed on account of winter vacations.

3. In view of the aforenoted submissions made on behalf of the appellant, the application is allowed and delay of 30 days in re-filing the accompanying appeal is condoned.

4. The application stands disposed of.

1. By way of present appeal filed under Section 30 (1)(a) Employees’ Compensation Act, 1923 (hereinafter, referred to as the 'EC Act'), the appellant (respondent before the Tribunal) has assailed the order dated 30.10.2019 passed by the learned Commissioner, Employees’ Compensation, Ashok Vihar Phase-IV, Delhi in Case No. CEO/D/72/NW/1766-77 whereby the claim application filed on behalf of respondent Nos. 1 to 5 was allowed and he was directed to pay compensation amount of Rs.7,97,600/- alongwith interest @ 12% per annum with effect from 03.03.2016 till the realization.

2. Learned counsel for the appellant contended that the appellant had leased out his premises to one M/s Swastik Industries vide lease agreement dated 31.12.2015 and on the alleged date of the incident, he was not under the control of the factory premises. It was further contended that the deceased was not under the employment of the appellant but of M/s Swastik Industries. The appellant sought its impleadment but the learned Commissioner instead of directing so, erred in fastening the entire liability on the present appellant.

3. I have heard learned counsel for the appellant and also gone through the entire material placed on record.

4. A perusal of the claim petition filed on behalf of respondent Nos. 1-5/dependents of the deceased, namely, Late. Sh. Shamshad would show that it was claimed that the deceased was working in the company of the appellant from last more than 10 days and doing labour work. It was claimed that the deceased had complained to the owner of the factory to disconnect the naked cables/wire but the same remained unanswered. Unfortunately, on 25.02.2016 at about 10:30 a.m. while the deceased was doing welding work, he received burn injuries on account of the naked cables/wire and ultimately succumbed to his injuries in Jaipur Golden Hospital. It was claimed that the present appellant had also paid an amount of Rs.20,000/- to the claimants. A further reading of the records would also reveal that it was stated that on account of the incident, an FIR No. 292/2016 was registered under Sections 287/304-A IPC at P.S. Narela against the owner of the factory i.e., the present appellant. Learned counsel for the appellant has contended that the present appellant is the only accused in the said FIR and partners of M/s Swastik Industries were never arrayed as accused persons.

5. The entire premise of appellant’s contention in the present appeal is based on the assertion that it was M/s Swastik Industries who was running the factory premises and not the appellant. In support, reliance was placed on the rent agreement between the appellant and M/s Swastik Industries. A perusal of the rent agreement would show that while the appellant has claimed himself to be an absolute owner of the entire industrial property bearing No. 1755, Block F admeasuring 350 square meters situated in the layout plan of DSIIDC, Narela Industrial Complex, Delhi but the lease agreement pertains to only 950 square feet and is given for the purpose to of carrying out the trade of manufacturing of PVC Shoe Shaul material. M/s Swastik Industries filed Reply to the appellants’ application under Order I Rule 10 CPC and denied that the appellant had sub-let the property in question i.e., place of occurrence to them or that they were occupying the place of incident on rent. It was further stated that the deceased was never their employee but rather employee of the present appellant.

6. A perusal of the written statement filed on behalf of the present appellant would show that the appellant himself took a stand that the deceased was basically a contractor who used to take contract for repairing tin sheds and work of similar nature. It was stated that the deceased had entered into a contract for execution of repairing work of tin sheds and such similar work at the factory premises of the appellant. It was further stated that there was no contract of service between the appellant and the deceased and rather the deceased was a contractor who had taken the contract work for execution of repairing work for a sum of Rs.22,000/- and under his supervision and control the said work was to be completed.

7. In the claim petition, the claimants have specifically described the present appellant as the owner of the factory premises. On a careful consideration of the records of the case as noted above, it is apparent that the appellant has tried to shift the blame on M/s Swastik Industries. However, in view of his own written statement as well as the deposition of the claimants, this Court is of the opinion that the deceased was employed with the present appellant. Insofar as appellant’s contention on the aspect that there was no contract of service, this Court deems it expedient to refer to the decision of a Co-ordinate Bench of this Court in Suraj Munni & Anr. v Sachin Bhatia & Anr. reported as 2017 SCC OnLine Del 11193 wherein it has been held as under:-

8. In view of the aforesaid, this Court finds no merits in the appeal and consequently the same is dismissed. The appellant has annexed proof of deposit of Rs.7,97,600/- before the learned Commissioner. Let the said amount be released to the respondent Nos. 1-5/claimants alongwith interest accrued thereon, if any. The appellant is also directed to deposit the interest as directed in the impugned order within two weeks from today which shall also be released to the claimants forthwith. Miscellaneous applications are disposed of as infructuous.