M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD v. SAROJ GAUTAM & ORS

1. The appellant has preferred the present appeal under Section 30 of the Employees’ Compensation Act, 1923 (hereinafter, referred to as the ‘Act’), assailing the order dated 16.04.2018 passed by the learned Commissioner, Employees’ Compensation in Case No.CEC-D/NE/18/2017/1125-1127, whereby death compensation was awarded to respondent Nos.[1] and 2/claimants and the appellant directed to deposit Rs.8,90,840/- alongwith interest @ 12% p.a. with effect from 19.07.2017 till realization.

2. Brief facts, as emerge from the records, are that respondent Nos.[1] and 2 had filed a petition under Section 22 of the Act, claiming compensation on account of death of their son/Nitish Gautam. As per the averments, Nitish Gautam, aged 20 years, was employed as a driver with respondent No.3 on the latter’s car bearing No. DL 7CM 0135 and was drawing wages @ Rs.12,000/per month. The car was insured with the appellant. On 19.07.2013, while Nitish Gautam was driving the car in discharge of his duty at about 2:15 P.M., it went out of control near Sector-7, GT Road, Haryana and collided with an Innova Car coming from the opposite side. The body of Nitish Gautam was recovered by police officials and his postmortem was conducted at Government Hospital, Sonipat, Haryana. On account of fatal injuries received by the deceased in the accident, an FIR bearing No.207/2013 was registered under Sections 279/337/304A IPC at P.S. Murthal, Sonipat, Haryana.

3. Learned counsel for the appellant contended that the claimants failed to establish employer-employee relationship between the deceased/Nitish Gautam and respondent No.3/employer in the proceedings before the learned Commissioner. In this regard, he submitted that respondent No.3 is in fact real uncle of the deceased and could not have been his employer. In support of his submission, learned counsel referred to the pleadings made before the MACT in cases filed separately on behalf of the present claimants as well as one Srishti Rustagi, who was statedly a co-passenger of the deceased on the date of the accident. To support his case, reliance was also placed by learned counsel on a decision of the Karnataka High Court in Divisional Manager, United India Insurance Company Ltd., Davanagere v. Gujjamma and others reported as 2004 SCC OnLine Kar 30.

4. On the other hand, learned counsel for respondent Nos. 1 and 2 refuted the submissions made on behalf of the appellant by contending that the employer-employee relationship between deceased and respondent No.3 was duly proved in the proceedings before the learned Commissioner.

5. I have heard learned counsels for the parties as well as perused the entire material placed on record.

6. At the outset, it is pertinent to observe that in terms of Section 30 of the Act, a challenge to the order of a Commissioner can be made only on a substantial question of law. In this regard, the Supreme Court in North East Karnataka Road Transport Corporation v. Sujatha reported as (2019) 11 SCC 514 has held the scope of an appeal under Section 30 of the Act to be limited to substantial questions of law, and that findings of facts proved either way are not to be likely interfered with. Relevant excerpt from the decision is reproduced hereunder:-

7. Recently, the same view has been voiced again by the Supreme Court in Shahajahan and another v. Shriram General Ins. Co. Ltd. and another reported as 2022 ACJ 203.

8. The only challenge made in the present appeal is to the employeremployee relationship between the deceased and respondent No.3, for which learned counsel for the appellant has relied upon the pleadings in MACT case by co-passenger/Srishti Rustagi, wherein it was stated that none of the passengers in the car was employed on the day of the accident.

9. On this aspect, it is noted that before the Commissioner, the claimants had categorically averred that the deceased was employed with respondent No.3, who was also admittedly his uncle. Respondent No.3 (Respondent No.1 before the learned Commissioner) supported the case of the claimants and his averments were summarized in the impugned order as follows:- “Respondent No.1 admitted that deceased Nitish Gautam was employed by him as driver and he was paid salary Rs. 12,000/p.m. Plus Rs. 100/- as diet money. Respondent No. 1 stated that deceased Nitish Gautam was employed as driver by him on his vehicle number DL-7-CM-0135 and the said vehicle was insured with respondent No. 2 i.e. ICICI Lombard General Insurance Company Ltd., vide Certificate cum Policy NO. 3001/62159525/02/000 valid from 21 November 2012 to 20 November 2013 and the said insurance company is liable to pay the compensation.”

10. It is not disputed by the appellant that the car in which the deceased was travelling on the date of the accident was insured with it. It is also not disputed that the insurance policy in question was valid and subsisting on the said date.

11. Though reliance is sought to be placed by the appellant on the statement of co-passenger/Srishti Rustagi, as well as written statement of respondent No.3 filed before the MACT, this Court is of the opinion that the same are of no avail to the appellant in view of the specific averments made in the claim proceedings before the learned Commissioner by the claimants as well as admission by respondent No.3 in his written statement, to the effect that at the time of the accident, the deceased was employed with respondent No.3. It is worthwhile to note that co-passenger/Srishti Rustagi was admittedly not examined in the proceedings before the learned Commissioner. In this view of the matter, reliance sought to be placed by the appellant on the decision in Gujjamma (Supra) is misplaced. The contention that the employer-employee relationship between the deceased and respondent No.3 is not established as respondent No.3 is an uncle of the deceased, is specious and being meritless is rejected.

12. The appellant having failed to make out any case for interference, the impugned order is upheld and the present appeal is dismissed alongwith the pending application. Let the compensation amount deposited by the appellant with the learned Commissioner, alongwith any interest accrued thereupon, be released to the claimants forthwith.