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FAO 99/2022,  CM APPL. 19849/2022 (Delay)

SEEMA & ORS v.  HDFC ERGO GEN INS CO LTD & ORS.

The appeal has been filed under Section 30 of the Employees’ Compensation Act, 1923 on behalf of the appellants impugning order dated 08.10.2021 passed by the learned Commissioner, Employees’ Compensation in Case No. CWC/D/ED/03/2013/7044, whereby their claim petition seeking compensation on account of death of claimant No. 1’s husband was dismissed. The appeal before HON’BLE MR. JUSTICE MANOJ KUMAR OHRI.

FACTS OF THE CASE:

Appellant No. 1, wife of deceased Sh. Dalip Kumar, alongwith other legal heirs had preferred a petition claiming that the deceased person was employed as a driver with Narinder Singh (respondent No. 2) and during the course of his employment, while driving the vehicle he met with an accident on 07.11.2012 near Mayur Vihar Metro Station within the jurisdiction of Police Station Pandav Nagar, New Delhi. An FIR No. 491/2012 was registered at Police Station Pandav Nagar, post-mortem of the deceased was conducted at the GTB Hospital.

At the time of death, the deceased was 34 years old and drawing a salary of Rs.10,000/- per month.

Learned counsel for respondent No. 1 contended that the claimant failed to establish employee-employer relationship between the deceased and Narinder Singh (respondent No. 2) thus the demise cannot be held to occur during the course of employment. Liability to pay compensation was denied on the ground that the deceased did not have a valid and effective license to drive a vehicle and also MLC conducted at the Lal Bahadur Shastri Hospital indicated consumption of alcohol at the time of driving.

Referring to Section 3(1) of the Employees’ Compensation Act, 1923, the claim petition was dismissed by the learned Commissioner through order on 30.11.2015 by stating that the deceased having been under influence of liquor at the time of occurrence therefore had no claim for compensation could be entertained.

In further appeal (FAO 413/2016) in the Delhi High Court, through judgment on 18.12.2017 observed Section 3(1)(b) of the Employees’ Compensation Act, 1923 and stated that it is not applicable to the accident in question as the case related to death and not injury. Therefore setting aside the order dated 30.11.2015 and sent back the matter to the learned Commissioner.

Here the petition came to be dismissed. The learned Commissioner concluded that the claimants failed to establish the employee-employer relationship between the deceased and Narinder Singh (respondent No. 2) as it was not proved that any salary was paid to the deceased by Narinder Singh. With the above basis, all the issues were decided against the claimants.

Narinder Singh stated that the deceased used to drive his TSR on daily rent basis but occasionally. He further stated that the deceased had driven his TSR for 16-17 days prior to the accident.

JUDGEMENT:

The Court fefered to the judgement of National Insurance Co. Ltd. v. Smt. Badami Devi and Ors. (2014 SCC OnLine Del 1268), wherein under similar facts, it was held that in a case of employment as a TSR driver it cannot be expected that there would be properly drafted employment contract. Therefore the Court was of the opinion that the learned Commissioner erred in concluding that merely because no formal proof of Dalip Kumar’s employment with Narinder Singh was brought on record, the employee-employer relationship was not proved.

With respect to compensation, the claimants are stated to be the widow, daughters, and mother of deceased/Sh. Dalip Kumar. They have established their status by placing on record respective copies of Voter ID Cards and Birth Certificates. The Court recognized them as dependents of the deceased and therefore are entitled to death compensation.

Contention was raised with respect to the aspect of  the smell of alcohol was noted and as such the respondent is not liable to pay compensation in view of Section 3(1)(b)(i) of the Employees’ Compensation Act, 1923 stands meritless.

The current appeal was allowed and the order dated 08.10.2021 is set aside.

The matter is further sent back to the learned Commissioner, Employees’ Compensation to award the compensation in terms of the Act and the compensation amount be paid to the appellants/claimants within four weeks thereafter.

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JUDGEMENT REVIEWED BY ADITYA G S.

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