NEELU KUMARI & ORS vs OM & ANR (BAJAJ ALLIANCE GEN INS CO LTD)

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 06 November 2023
Judgment pronounced on: 21 November 2023
+ FAO 56/2016 & CM APPL. 11273/2019
NEELU KUMARI & ORS ….. Appellants
Through: Mr. Anshuman Bal, Adv.
versus
OM & ANR (BAJAJ ALLIANCE GEN INS CO LTD)
….. Respondent
Through: Ms. Ashwarya K., Adv.
on behalf of Mr. Navneet
Kumar, Adv. for R-2.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T

1. This appeal is filed by the appellant under Section 30 of the
Employee Compensation Act, 19231 assailing the impugned order
dated 30.11.2015 passed by Labour Commissioner, Vishwakarma
Nagar, Jhilmil Colony, Delhi- 110095, in claim petition No. CWC-
D/NE/02/2013/40 dated 21.01.2013 filed by the claimant / appellant,
wherein, the claim petition was dismissed.

1 The E.C. Act

FACTUAL BACKGROUND

2. To put it succinctly, the claimant, i.e., the appellant before this
Court, is the wife of the deceased Brij Kishore Gupta @ Brij Kishore
Sah. He died on 25.12.2012 at the age of 38 years, while plying

vehicle i.e., TSR bearing No. DL-lRF-0941. The claim petition was
based on the premise that the deceased was an employee of Sh. Shri
Om i.e., respondent No.1, drawing a monthly salary of Rs. 10,000/-
and died in the course of the employment. His legal heirs being solely
dependent on his earnings, prayed for compensation according to the
provisions under the Act.
3. The impugned order, while encapsulating the events, noted the
submission of claimant/appellant that on 25.02.2012 at about 10.00
P.M. the deceased was murdered while on duty on said vehicle during
the course of his employment with respondent No. l. It was also stated
that the accident was registered in P.S. Karawal Nagar, Delhi vide FIR
No. 509/2012 dated 27.12.2012 under Section 302/34 Indian Penal
Code, 1860, and the post-mortem of the deceased was conducted in
GTB Hospital, Delhi.
4. In the ensuing proceedings, respondent No. l submitted that the
deceased was never his employee and that he never paid any wages to
him. He further stated that the vehicle even though was owned by,
respondent No. l, it was driven by both him and the deceased on a
sharing basis. On the night of the accident, the deceased had taken the
auto rickshaw for only a night at around 10:00 P.M. in order to take
his relatives from Anand Vihar Railway Station.
5. Respondent No. 2 i.e., M/s Bajaj Allianz General Insurance
Company Ltd., also towed the same line of defence for denial of claim
submitting that they are not liable to pay any compensation to the
petitioners (appellants herein) as deceased Brij Kishore Gupta @ Brij

Kishore Sah was not an employee of the R-1 and was not the
employee, within the provision of Sec. 2(1)(n) of the Act.
6. Thus, the following issues were framed for consideration before
the Labour Commissioner:

“i. Whether there existed employer – employee relationship
between the deceased and Respondent No. 1.
ii. If so, whether the accident resulting into death of
deceased Brij Kishore Gupta occurred during his
employment with R-1 or was he murdered during his
employment with R-1?
iii. Whether the Claimants are entitled to compensation
under Employees Compensation Act.
iv. Any other directions?”

7. The claimants in order to substantial the claim examined CW-1
i.e. wife of the deceased while no other witness was examined by her
as well as the defence. No witness was examined on behalf of the
respondent. Suffice to say that both issues Nos. 1 and 2 were answered
against the claimants and the Commissioner relied on decision in
Malikarjuna G. Hiremath Vs. Branch Manager, Oriental
Insurance Company Ltd. & Anr.2 and observed as under: –

2 (2009) 13 SCC 405.

“11. In the case of Malikarjuna the facts were that the deceased /
Claimant / the driver of the vehicle which was insured with the
Insurance Company went to the pond and while taking bath at a pit, he
had slipped and fell down and had drowned and breathed his last. The
claim petition was filed taking the stand that the death of the deceased
had occurred during the course of and within the employment under
the appellant. The vehicle was the subject – matter of insurance with
the insurer and, therefore, it was the subject-matter of insurance with
the insurer and, therefore, it was claimed that the insurer was liable to
pay the compensation as the risk of the driver was covered under the
policy. The Commissioner, Bellary by his order dated 11 July, 2002

allowed the petition and determined the compensation payable at Rs.
2,20,046/- with 12% interest. It was held that the insurer was liable to
pay the compensation. Insurer filed an appeal before the High Court.
As noted above, the stand taken by both the insurer and the appellant
was that there was no connection between the accident causing death
of the workman and the vehicle and therefore, neither the insurer nor
the insured had any liability to pay any compensation. The High Court
allowed the appeal filed by the insurer holding that there was no casual
connection and therefore the Insurance Company was not liable.
Further, the High Court granted the liberty to recover the compensation
awarded from the appellant.
12. Against the above order of the High Court the insured i.e. the
owner of the vehicle filed an appeal in the Supreme Court. The
Supreme Court allowed the appeal with observations as under: –
“It is the specific case of the claimants that on 30 November,
2000 the deceased who was driving the vehicle on the direction of
the insured had gone to Gurugunta from Siraguppa. There he had
gone to a temple and was sitting on the steps of the pond in the
temple and he slipped and fell into the water and died due to
drowning. This according to us is not sufficient in view of the legal
principles delineated above to fasten liability on either the insurer
or the insured. The High Court was not justified in holding that the
present appellant was liable to pay compensation. The appeal is
allowed with no order as to costs”.
13. In view of the position as above, I am of the opinion that accident
i.e. murder of the deceased has no connection with his employment.
Further I also find, it difficult to believe plying of TSR on the basis of
salary by the deceased. The Claimants have not stated any details of
employment except receipt of salary from 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. In the circumstances as
above, I find the Claim Petition being as without merit and accordingly
dismiss the same.”

8. The impugned order dated 01.11.2015 is assailed in the present
appeal for the findings rendered on facts that there was no relationship
between employer and employee as also on the issue of law that the

Commissioner wrongly went to hold that murder of an employee
could not entitle the legal heirs to seek any claim under the E.C. Act.

DECISION

9. Having heard learned counsel for the parties and on perusal of
the digital record of the main proceedings, the instant appeal in so far
as it assails the decision on the issue of existence of relationship of
employer and employee between the parties concerned, is devoid of
any merits. The initial burden of providing employer and employee
relationship was upon the appellants/claimants, which was not
discharged. The Commissioner rightly held that CW-1 i.e., the wife of
the deceased miserably failed to substantiate that her husband was
employed with respondent no. 1 and her testimony that her husband
was getting wages of Rs. 10,000/- per month from respondent No. 1 is
does not inspire confidence. Her deposition about her husband being
employed under respondent No. 1 is not corroborated by any
independent witness. Further, no other material was brought on the
record during the proceedings before the Commissioner to prove that
the deceased was plying the TSR as employee of respondent No.1.
10. However, only from an academic point of view, the finding by
the Commissioner that murder of an employee during the course of
performance of his duties would not bring the case within the ambit of
Section 2(1)(n) of the E.C. Act, is flawed. For which reliance can be
placed on decision in Rita Devi Vs. New India Insurance Company

Ltd.3, as also decision by this Court in National Insurance Company
Ltd. Vs. Munesh Devi4.
11. In view of the foregoing discussion, the present appeal is
dismissed. The pending application also stands disposed of.

3 (2000) 5 SCC 113.
4 2012 SCC OnLine Del 2603.

DHARMESH SHARMA, J.
NOVEMBER 21, 2023
sp