USHA DEVI & ORS vs PRADEEP KUMAR & ORS (FUTURE GENERALI INDIA INS CO LTD)

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 11 December 2023
Judgment pronounced on : 25 January 2024
+ FAO 233/2016 and CM APPL. 1316/2019
USHA DEVI & ORS ….. Appellants
Through: Mr. Anshuman Bal, Adv.
versus
PRADEEP KUMAR & ORS (FUTURE GENERALI INDIA
INS CO LTD) ….. Respondent
Through: Mr. Vipin Jai and Mr. Ujjwal
Goel, Advs. for R-1
Mr. Rajeev Roy, Adv. for R-2
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T

1. The present appeal is filed by the appellants/claimants in terms
of Section 30 of the Employees Compensation Act, 19231 assailing the
Impugned order dated 15.01.2016 passed by the learned Labour
Commissioner, Vishwakarma Nagar, New Delhi2, whereby the claim
application bearing No. CEC-D/ED/25/09/493, filed under Section 22
of the EC Act was dismissed.

1EC Act
2 Commissioner
3Claim Application

FACTUAL BACKGROUND:

2. Briefly stated, it was the case of the appellants/claimants that on
02.07.2009 at about 6.00AM, the deceased Sh. Surender Kumar who
was working as a driver with Respondent no. 1 on monthly wages of
Rs. 6000/-, met with an accident while driving a TSR (Three-wheeled
scooter rickshaw) bearing no. DL-1RL-6471 at Madanpur Khadar near

Badarpur, Delhi, resulting in his death. Subsequently, Post mortem
was conducted at Jai Prakash Narayan Hospital, Delhi and FIR No.
187/2009 was registered by the police.
3. During the proceedings before the learned Commissioner, the
Respondent no.1/Pradeep Kumar/Employer denied the Employer4 –
Employee5 relationship in his written statements and also the fact that
the deceased was drawing wages of Rs. 6000/- per month. Further
Respondent No.2/M/s Future Generali Insurance Co. Ltd. and
Respondent No.3/Mukesh Kumar Bhaskar in their respective written
statements contested the claim and pointed out that the deceased had
no valid permit to drive a TSR and this was in violation of the Motor
Vehicles Act, 19886, and thus, they are not liable for any
compensation.
4. The learned commissioner framed the following issues :
i. Whether there exists a relationship of employee and employer between
the claimant and R1/R3 ?
ii. Whether the accident resulting into death of deceased workman
occurred out of and during the course of his employment with the
Respondent ?
iii. If so to what amount of compensation, the defendants of the deceased
workman are entitled to and who is liable to pay the compensation ?
iv. Relief if any ?

4Section 2(1)(e)EC Act, “employer” includes anybody of persons whether incorporated or
not and any managing agent of an employer and the legal representative of a deceased
employer, and, when the services of a2[employee] are temporarily lent or let on hire to
another person by the person with whom the 2[employee] has entered into a contract of
service or apprenticeship, means-such other person while the 2[employee] is working for
him.
5Section 2(dd)(c) EC Acta person recruited as driver, helper, mechanic, cleaner or in any
other capacity in connection with a motor vehicle.
6MV Act

5. Learned commissioner on appreciating the evidence on record
observed that the claimants have not produced any employment details
of the deceased except oral statements. Further, it was held that the
deceased was not having a valid permit/license to drive a TSR vehicle;
and thus, the deceased did not fall under the definition of an
“employee” and the respondent was also outside the ambit of the
definition of an employer as per the EC Act. It would be pertinent to
mention the observations of the court, which are reproduced as under :

“9. In view of the fact and circumstances discussed above, I find it
difficult to believe plying the TSR on the basis of salary by the
deceased. The Claimants have not stated any details of his
employment except oral statement or receipt of salary from the R-
1. Plying TSR on a basis of contractual basis i.e. on the basis of per
day rent, may be explainable, though it would also be illegal. A
void and illegal contract cannot be enforced by the courts. In such a
situation deceased like the case in present would not fall under the
definition of the employee under the Section 2(1)(dd) and the
respondent is also not covered under the definition of employee
given in Section 2(1)(e) of the Employee’s Compensation Act,
1923”.

6. In the concluding observations, the claimants relied on two
judgments P.P. Mohammad v. K. Rajappan7 and National
Insurance Company Ltd., v. Hanumantharayappa and Ors.8,
which the court held were not relevant to the present facts and
circumstances of the case. The Commissioner was also in agreement
with Respondent no.3 with respect to the fact that claim of the
claimant was on the basis of an accident by a TSR covered under the
MV Act, which was beyond the jurisdiction of the court. Accordingly,

7(2008) 17 SCC 624
82014 SCC OnLine Kar 13482

the Commissioner dismissed the claim petition based on abovenoted
observations.
7. The appellants / claimants in the present appeal allude to the
fact that the deceased met with an accident while driving a TSR
vehicle and was earning Rs. 6000/- monthly. Further, they canvass the
fact that a premium was charged by the insurance company for the
liability of the driver. Lastly, the appellants have placed reliance on
National Insurance Company Limited v. Badami Devi & Ors9
passed by this court. Hence, the appellants have filed this present
appeal before this court.

ANALYSIS & DECISION:

8. Having heard my thoughtful consideration to the submissions
advanced by learned counsels for the parties at the Bar and on perusal
of the record including the record of the proceedings before the
Commissioner, Employee’s Compensation, I am afraid that the
present appeal is bereft of any merits.
9. It is pertinent to mention that initially, respondent No.1 was
joined, who in his reply contested that there is a relationship of
employer and employee between the parties at any point of time in the
past. There was no substantive evidence led to show that the deceased
was employed under him and drawing a monthly salary of Rs. 6,000/-
per month.
10. During the course of proceedings, the appellants/claimants
made a significant change and pursuant to the application under Order
1 Rule 10 CPC, they impleaded respondent No.3 and claimed that he

92014 SCC OnLine Del 1268

was the owner of the offending TSR vehicle. Even respondent No.3
in his reply, hotly contested that the deceased was employed under
him in any manner; and stated that he had neither knowledge of his
age nor his employment with anyone including respondent No.1. On
the contrary, he claimed that respondent No.1 was the owner of the
vehicle till the relevant time.
11. Be that as it may, the appellant/wife when examined as PW-1,
failed to produce even the driving licence of the deceased so as to
suggest that he was eligible to drive a TSR. Indeed, the offending
TSR was ensured for third party risks including covering risks of the
driver as per the insurance policy Ex.R2W1/C. However, in the
absence of proving any driving licence standing in the name of the
deceased, no inference can be drawn that he was employed as a driver
of the TSR vehicle.
12. It is pertinent to mention that Section 2(d)(ii)(c) of the
Employees Compensation Act, 1923, defines a person recruited inter
alia as a driver in connection with the motor vehicle. However, the
driving licence to ply such a vehicle was of paramount consideration,
which has not been proven on the record by the appellants/claimants.
13. Last but not the least, a perusal of the contents of the FIR No.
187/2009 PS: Sarita Vihar, registered under Section 279/304-A of the
IPC as well as the MLC bearing No. 17037 vide dated 02.07.2009
would show that the deceased while driving the vehicle had hit a road
divider/metro board resulting in injuries, to which he succumbed later
on. In the absence of any substantive proof with regard to the

existence of the relationship of employer and employee between the
deceased and respondent No.1 and for that matter of respondent No.3,
the matter would definitely fall out of the ambit of Employees
Compensation Act, 1923 and would be governed, if it all, under the
Motor Vehicles Act, 1988.
14. Learned counsel for the appellants relied on decision in Seema
& Ors. v. HDFC ERGO Gen. Ins. Co. Ltd & Ors.10, wherein in
somewhat similar facts and circumstances, where the deceased was
plying a TSR, it was inter alia observed that the written proof of
existence of relationship of employer and employee is not warranted
in all cases. I am afraid that was a case where respondent
No.2/employer had acknowledged that the deceased was an employee
under him and the driving licence of the deceased was also proven on
the record. Likewise, another decision by this Court in Suraj Munni
& Anr. v. Sachin Bhatia & Anr.11, there was evidence to the effect
that the deceased was employed as a driver to ply a TSR, which was
owned by respondent No.1/employer. Merely, because there was no
written contract between the parties, it was held that such large
commercial agreements are not drafted or executed, and there was no
reason to hold that the deceased was not an employee of the
respondent/registered owner. At the cost of repetition, in the instant
matter, there is no evidence of existence of relationship of employer
and employee.

10 2023 SCC OnLine Del 8313
11 2017 SCC OnLine Del 11193

15. In view of the foregoing discussions, this Court finds no merit
in the present appeal. Hence, the appeal is dismissed.
16. The pending application also stands disposed of.

DHARMESH SHARMA, J.
JANUARY 25, 2024/sp