FUTURE GENERALI INDIA INSURANCE CO LTD vs RAMESHWAR CHOUDHARY & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 15 December 2023
Judgment pronounced on : 13 February 2024
+ FAO 545/2016 & CM APPL. 51022/2019
FUTURE GENERALI INSURANCE CO LTD ….. Appellant
Through: Mr. Rajeev M. Roy and Mr. P.
Srinivasan, Advs.
versus
RAMESHWAR CHOUDHARY & ORS. ….. Respondents
Through: Mr. Chandan Prajapati, Adv.
for R-1 and R-2
Ms. Prachi Singh, Adv. for R-4
with Mr. Arvind Bansal, SSO
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T

1. This judgment shall decide the present appeal filed by the
appellant under Section 30 of the Employees” Compensation Act,
19231, assailing the impugned judgment dated 29.07.2016/02.08.2016
passed by the Commissioner, Employee”s Compensation, Delhi, in
Case No. CWC/CD/I4/I4/I431 titled „Sh. Rameshwar Choudhary
&Anr. V. M/s Furture Generali India Insurance Company Ltd.
&Anr.”, whereby an amount of Rs.8,69,574.00/- has been awarded as
compensation to the claimants/respondent Nos. 1 & 2, i.e., Sh.
Rameshwar Choudhary and Smt. Fullo Devi, for the death of their son
Sh. Ganga Ram, and the liability to pay compensation has been
fastened upon the appellant/Insurance Company.

1 EC Act

FACTUAL BACKGROUND:

2. Succinctly put, the deceased Sh. Ganga Ram Choudhary, aged
19 years and stated to be drawing wages @ Rs. 8,000/- per month at
the time of death, was the son of respondent Nos. 1 and 2. He was
employed by respondent No. 3 i.e., M/s Jauhar Logistics Pvt. Ltd. as
loader on vehicle/truck bearing No. HR-55J-9615, which was owned
by respondent No. 3 and insured with the appellant herein, i.e., M/s
Future Generali India Insurance Company Ltd., vide policy no.
2012-V2164374-FCV for the period from31.12.2012 to 30.12.2013. It
is the case of respondents that on the fateful night of 23/24.07.2013,
the truck was involved in an accident, grievously injuring the
deceased, who eventually succumbed to the injuries on 27.07.2023.
Pursuant to this series of events, since the deceased died during the
course of his employment with respondent No. 3 on his vehicle/truck,
his bereaved parents approached the learned Commissioner under the
EC Act seeking compensation and interest @ 12% p.a. from date of
accident till its realization.
3. Additionally, since due to the accident the vehicle also suffered
damages, an Own Damage Claim2 was filed with the appellant herein
by respondent No. 3, and the same was paid for loss of vehicle upon
due verification. However, C.M. Appl. No. 51022/2019 seeking
production of OD Claim records from the possession of the appellant,
is still pending before this court.

2OD Claim

PROCEEDINGS BEFORE THE LEARNED COMMISSIONER
AND THE IMPUGNED ORDER:

4. The appellant herein contended that the claim application under
EC Act was not maintainable since the deceased was an employee
covered under the Employees” State Insurance Act, 19483, and thus by
virtue of application of Section 53 of the ESI Act, the claim
application against the applicant was not maintainable in law, which
stance was rejected by the learned Commissioner vide orders dated
23.07.2014 and 05.09.2014. Furthermore, it was contended that the
deceased was not „in employment” or „during the course of
employment” with the appellant herein at the time of accident since he
was returning home from work; and that the cause of death of
deceased was being hit on his chest and stomach by a raged bull on
the road, as had been recorded in the Death Summary prepared by
Park Hospital and the Statement of the deceased when admitted in ESI
Hospital (Annexure A-12 colly).
5. On the basis of the pleadings by the parties, the following issues
were framed for consideration by the learned Commissioner: –

3ESI Act

“(i) Whether deceased Sh. Ganga Ram Choudhary met with an
accident resulting into his death which was out of and in the course
of his employment withrespondent No. 1?
(ii) If so, what relief and what directions are necessary in this
respect?”

6. In deciding that the deceased met with the accident „arising out
of” and „during the course of employment”, the learned Commissioner
made the following observations in adjudication of issue No. 1: –

“14. Given the above, now the question comes as to whether the
accident was caused out of and during the course of employment.
The accident is not disputed, death is not disputed. The stand of
respondent No.l as well as that of respondent No.2 is that he met

with an accident and he died but he died in the course of and in the
capacity of being an insured person under ESI. The respondent has
failed to produce any documentary evidence and eye witness to
corroborate their pleadings about where the deceased worked and
he met with an accident due to hitting of a Bull. Who took him to
hospital. All these questions go unanswered for which, I feel,
respondents are required give reply with evidence, in which they
have failed. The applicant/claimant has strongly opposed the
contention of the respondent to say the deceased employment in
M/s Fidelity Man Power Services Pvt. Ltd. The respondents have
vehemently opposed any application or the applicant to bring more
witnesses. The applicant has filed photographs of the accident. An
affidavit is also filed which provides space to take a view in its
context. The counsel for the applicant has argued that respondent
No. 1 has been paid vehicle damage claim by respondent No. 2 but
for the death of this poor person they are making false accusations
and pretentions with technicalities at large. They are trying to swap
the accident. In view of the discussions, I am of the view that the
accident of the deceased took place in a vehicle owned by
respondent No.l. Hence, I hold that the injury to the employee were
caused out of and during the course of employment while working
with respondent No. 1 on his vehicle bearing No. HR-55J-9615 as
loader on 23-24/07/2013 as a result he died. Thus issue is decided
in favour of the petitioner and against the respondent no.1.”

7. The following observations were made when deciding upon the
issue of relief: –

“15. Now the next issue comes to as to what amount of death
compensation, the applicants/claimants are entitled to?
In the claim petition he has stated that the deceased was drawing
wages @ Rs. 8000/- per month along with all allowances.
Respondent No.l has denied relationship hence there was no
question of telling the wage of the workman. In the given situation
I have to go by the minimum rates of wages prevalent at the
relevant time. The rate of minimum wage at the time was Rs.
7722/- per month. Hence, his wage is taken Rs. 7722/- accordingly.
It has further been stated that the deceased was aged 19 years at the
time of his death. As per medical prescription his age is shown 19
years thereby the applicant has completed 19 years of his age and
his age is taken 19 years.
16. In the given age, wages the applicants are entitled to
compensation as under: –
225.22 x 7722 x 50/ 100 = Rs. 8,69,574/-

17. The applicant is also entitled to interest from the date 30 days
after the accident as per Section 4A till the date of deposit. As per

Section 4 (4) the applicants are also entitled to funeral charges to
the tune of Rs. 5,000/-. The applicants are entitled to death
compensation from respondent No.l. The said respondent had taken
an insurance coverage and the insurance company has admitted the
insurance of the vehicle and he had been paid the vehicle damage
claim to the said respondent and the insurance company has
indemnified the owner of the vehicle of the respondent no.l through
the insurance cover as such respondent no.2 is liable to pay the
compensation amount with interest to the petitioners.
18. The respondent No.2 is directed to deposit the above amount of
death compensation along with @12% simple interest w.e.f.
24.08.2013 till its realization along with funeral charges of Rs.
5000/- with this court within 30 days from the date of this order
failing which the same shall be recovered as arrears of land
revenue as per Employee’s Compensation Act, 1923.”
GROUNDS FOR APPEAL:

8. The impugned order has been assailed inter alia on the grounds
that the learned Commissioner did not have jurisdiction since claim
under the EC Act is not maintainable as the deceased was insured with
ESIC and covered under the ESI Act; and that the compensation ought
not to have been granted since the entity with which the deceased was
employed i.e., M/s. Fidelity Manpower Services Pvt. Ltd., was not
even a party to the proceedings under the EC Act and the deceased
was not employed with respondent No. 3. Further, it is alleged that the
impugned order has been made based on conjectures and surmises and
thus, it is prayed that the same be set aside.

ANALYSIS & DECISION:

9. I have given my thoughtful consideration to the submissions
advanced by learned counsels for the rival parties at the Bar4. I have
also perused the relevant records of the case including the digitized
Trial Court Record and the case-laws cited at the Bar.

4 Written submissions filed on behalf of respondents No.1 and 2 on 05.01.2024

10. First things first, it is a well settled position in law that an
appeal provided under Section 30 of the EC Act lies to the High Court
from the following orders of a Commissioner, illustrated as under:-

“Section 30 Appeals: (1) An appeal shall lie to the High Court from
the following orders of a Commissioner, namely—
(a) an order awarding as compensation a lump sum whether by
way of redemption of a half-monthly payment or otherwise or
disallowing a claim in full or in part for a lump sum;
(aa) an order awarding interest or penalty under Section 4-
(b) an order refusing to allow redemption of a half-monthly
payment;
(c) an order providing for the distribution of compensation among
the dependants of a deceased employee, or disallowing any claim
of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an
indemnity under the provisions of sub-section (2) of Section 12”

11. It is further provided by way of proviso that no appeal lies
against any order unless a substantial question of law is involved in
the appeal.
12. In the case of North East Karnataka Road Transport
Corporation vs. Sujatha5, the Supreme Court had an occasion to
consider the entire scope and ambit of Section 30 of the EC Act. In the
context of what would constitute a substantial question of law, it was
held as under:-

5 (2019) 11 SCC 514

“9. At the outset, we may take note of the fact, being a settled
principle, that the question as to whether the employee met with an
accident, whether the accident occurred during the course of
employment, whether it arose out of an employment, how and in
what manner the accident occurred, who was negligent in causing
the accident, whether there existed any relationship of employee
and employer, what was the age and monthly salary of the
employee, how many are the dependants of the deceased employee,
the extent of disability caused to the employee due to injuries
suffered in an accident, whether there was any insurance coverage

obtained by the employer to cover the incident, etc. are some of the
material issues which arise for the just decision of the
Commissioner in a claim petition when an employee suffers any
bodily injury or dies during the course of his employment and
he/his LRs sue(s) his employer to claim compensation under the
Act.
10.The aforementioned questions are essentially the questions of
fact and, therefore, they are required to be proved with the aid of
evidence. Once they are proved either way, the findings recorded
thereon are regarded as the findings of fact.”

13. In view of the aforesaid position of law, without further ado,
reverting to the instant appeal, the learned Commissioner has given a
categorical finding that the deceased workman suffered fatal injuries
during the course of his employment with respondent No.3 while he
was working and travelling in the ill-fated offending vehicle.
14. The plea canvassed during the appeal was that deceased was an
employee of M/s. Fidelity Man Power Services Pvt. Ltd. and that he
was covered under the ESI Act, is a bald allegation, which was not
substantiated during the course of inquiry/trial before the learned
Commissioner.
15. It goes without saying that the burden of proving such vital fact
was upon the appellant/ Insurance Company and they did not bother to
summon any witness from the said company and examine any witness
with regard to the alleged employment of the deceased in such
company, and therefore, having failed to discharge the burden of
proof, the plea does not merit any attention. Therefore, the plea that
the claim was barred under Section 53 of the ESI Act does not come
into play.
16. To sum up, I find that the learned Commissioner has not
committed any illegality, perversity nor he has adopted any incorrect

approach in law in passing the impugned judgment dated
29.07.2016/02.08.2016.
17. Before parting with this case, this court does not approve the
conduct of the appellant/Insurance Company, which has deliberately
omitted to place on record the OD Claim Records, thereby
suppressing material facts from this Court. The appeal appears to be
misconceived in law and ill motivated. Therefore, while dismissing
the present appeal, the appellant/Insurance Company is imposed with
costs of Rs.50,000/-. The entire cost so awarded be paid to the
respondent Nos.1 and 2, who are the legal heirs/surviving parents of
the deceased, in equal shares.
18. The appeal along with the pending application is disposed off
accordingly.

DHARMESH SHARMA, J.
FEBRUARY 13, 2024
SM/SA