BEFORE SH. S.

C YADAV, COMMISSIONER
(UNDER EMPLOYEES'COMPENSATION ACT, 1923)
LABOUR DEPARTMENT, GOVT. OF N.C.T. OF DELHI
5, SHAM NATH MARG, DELHI-110054

No.CWC/195/NW/13 202 Dated: 3108 2 0 .

In the matter of

Sh. Sukhveer Singh S/o Sh. Khushi Ram

R/o-Village- Hardua,
P/o& P/s -Navabganj,
Tehsil Kayamganj, District- Farukhabad,
-

Uttar Pradesh.

Local Address:-
House No. 90, 1st Floor,
Khasra No. 186, Village Rithala
Delhi.
..Applicant
VERSUS

Sh. Rajesh@ Bittu,

Classic Transport Service,
Sector -18, Maruti India Area,
Near 1s Oriental Graph, Village - Sarhaul1,
Gurgaon, Haryana.
M/s Oriental Insurance Company Ltd.
Regional Office (Hub), 10th Floor,
Hansalya Building, Barakhamba Road,
New Delhi
...Respondents

ORDER
1. Vide this order, I will dispose of the application dated 22.11.2013 of the applicant/claimant
seeking injury compensation.
2. That the case of the applicant/claimant is that he was employed as a driver on vehicle no.
HR-55C-8631-Truck owned by respondent no.l for the last one and half year and on 23-
11-2012 he received grievous injuries on his right leg out of and during the course of
employment. The applicant was on the business trip and the trip was from Gurgaon to
Dharuheda plant. The vehicle was loaded with crate of empty lights. On 23-11-2012 when
the vehicle reached at the place of accident at after Billoda village, it was 11.00 P.M. when
the vehicle was crossing the puliya, there was a loaded vehicle parked on the road and
another vehicle which was on the right side of the applicant's and was being driven by its
1
 driver in a very high speed, tried to overtake him and turned his vehicle. Applicant tried to
avoid this hit but he failed and the vehicle of the applicant ran in the standing vehicle. Due
to this accident cabin of the vehicle was totally damaged and applicant caught up inside the
cabin. The applicant sustained grievous injuries on his right leg. Ambulance came after
about 1/2 hours the injured was taken out of the vehicle and taken to Rewari Hospital. He
remained there for one night thereafter he was shifted to Govt. Hospital, Gurgaon and he
was operated there and after 15-20 days he was discharged. Thereafter he went to his
native place and after 5-6 months he was again admitted in Chandra Hospital Agra and
operated there. He remained there for 10-15 days and is still under treatment. He has
incurred a substantial amount on his treatment. In this accident the applican has been
disabled and he is not in a position to do any work of his capacity and has become 100%
disabled for the purpose of his employment as a driver as his right leg is not working. His
earning capacity has been totally reduced. That the vehicle bearing No. HR-55C-8631-
Truck was owned by respondent no. 1 at the time of accident and it was insured with
respondent no. 2 i.e. M/s The Oriental Insurance Company Ltd., vide policy no.
215300/31/2013/7891 and an additional premium was charged by the respondent no.2
from respondent no. 1 under E.C. Act. The applicantwas drawing wages @Rs. 8000/- per
month and Rs.200/- per day as food allowance and he was aged 25 years at the time of
accident. The Respondent No.1 is having the notice of the accident since the day of its
occurrence and the Insurance Co. has been informed immediately after the accident took
place. Even otherwise, a notice under section 10 of the E.C. Act has been served upon the
respondent no. 1. The Applicant is entitled to compensation to the extent of 100%
disability and as per section 4(1) (c) & 4(1) (d) of the Employee's Compensation Act he is
entitled for temporary and permanent disablement along with interest @ 12% p.a. from the
date of accident till realization and penalty to the extent of 50%.

3. The notices were issued to the respondents. In spite of service of notice respondent No. 1
did not appear nor filed his response. Respondent No. 2 - the insurance company with

which the vehicle in question was insured filed its response. In the written statement filed
by the said respondent it has been stated that there was no employee employer relationship
between the claimant and respondent No. 1. Nor the accident was caused out of and
during the course of employment. It was further stated that the authority does not have
territorial jurisdiction. In respect of insurance and its coverage, it was stated that the
vehicle in question i.e. vehicle bearing No. HR-55C-8631-Truck was insured with them
vide policy No. vide policy no. 215300/31/2013/7891 in the name of Shri Rajesh @ Bittu.
For the period 1.8.2012 to 31.7.2013.

4. On the basis of the pleading of the parties, the following issues were framed for
adjudication:
i) Whether this authority has jurisdiction to decide the application?
ii) Whether the injured workman met with the accident during and out of his
employment with respondent No.1?
iii) If so what amount of compensation the claimant/injured is entitled to?
iv) Relief, if any.

JEUC
Dellw
5. The matter was fixed for evidence of the parties. The applicant filed his evidence. He filed
his affidavit and also filed documents pertaining to the accident and treatment of the
applicant. He was cross examined by the counsel for the insurance company. Witnesses
from the Govt. Hospital and also from the transport authority deposed in the case.
Evidence were also filed by the insurance company pertaining to the insurance of the
vehicle.

6. On the submission of the insurance company an additional issue of res-judicata was also
framed to see whether the case can be maintainable in view of the fact that the case has
been filed afresh.

7. The matter was fixed for arguments by the parties. Arguments were filed and oral were
addressed by the parties.

8. On the pleading of the parties, evidence filed by them and the arguments addressed on
their behalf, I have to give my findings as under:

9. At the outset, the undersigned intend to deal with the issue of filing a review by the
applicant. From the perusal of the record it has been seen that the applicant/claimant filed
an appeal against the order of my ld. predecessor. My predecessor had declined the injury
compensation to the claimant. The said appeal was preferred before the Hon'ble High
Court being F.A.O. No. 423/2017. In the said appeal the applicant sought to withdrawthe
appeal with the liberty to file a review of the order of the then Commissioner. The
Hon'ble High Court passed the order which is read as under:-

*Learned counsel for the appellant seeks leave to withdraw the appeal with liberty
to file a review petition.
The appeal is accordingly dismissed as withdrawn with the liberty as prayed for. It
is clarified that this Court has not commented on the issue of limitation.

January 14, 2020 SANJEEV SACHDEVA, J"

The above order of the Hon'ble High Court grants liberty to the applicant to seek
review. In the given situation, it would not be appropriate for this authority to take a
different track after liberty is granted by the Hon'ble High Court. Nor this authority is
empowered to question the merit of the order passed by the Hon'ble High Court. Even
otherwise the matter has to be, at the most, decided as per its merit. Hence the plea of the
insurance company to seek that should not proceed on review is not appropriate and
correct one.

The counsel for the claimant has argued and has vehemently opposed the objection
taken by the counsel for the insurance. The counsel for the claimant argued as the
objection of delay and res-judicata are not considerable that though the principle of res-
judicata is a general rule and it applies in the proceedings in a civil suit. Under the
Workmen's Compensation Rules - rule 41 provides for applicability of the provisions of

* peti
 Code of Civil Procedure. These are order V, IX, XII, XVI, XVII and Order XXIII.
Section 11 ofthe Code which is pertaining to res-judicata has not been made applicable in
the proceeding under the Act. It is for the law makers to make a provision applicable or
not to make it applicable. Rule 24 of the Workmen's Compensation Rules says that one
application rejected and not decided on merit does not preclude the filing of another
application. It has been stated that the application seeking the application under Rule 24
has been allowed by my predecessor.

He has further argued that in an identical case titled as Upender Tiwari vs. M/s National
Insurance Co. Ltd. And anr. - F.A.O. No. 345/2018-judgment passed on 09.10.2019 has
ruled -

"The application seeking withdrawal of the claim and liberty for filing a fresh one is
dismissed as withdrawn. The impugned order is set aside. Consequently, the claim
case stands revived on the file of the Commissioner Employee's Compensation, who
shall take it up for further proceedings in accordance with law on 14.11.2019..
The parties are directed to appear accordingly."

In view of the discussion as above, I hold that the order of the Hon'ble High Court
mandates this authority to consider the matter on merit. The said objection of the
insurance company is rejected. Even otherwise my ld predecessor vide his orderT
application under Rule 24 of the Workmen's Compensation Rules, 1924 had been allowed.

Issue No.1
10. The insurance company has taken a plea that the authority does not have territorial
jurisdiction as the accident took place at Gurgaon, and the applicant is permanent resident
of Uttar Pradesh and employer also resides in Gurgaon. Hence this authority has no
territorial jurisdiction. The said issue was also posed before my predecessor and the later
in its para No. 10 has held that the issue of territorial jurisdiction does not pose much and
the case was decided to be heard on merit.

11. This issue is again argued by the counsel for the insurance company. Parties havebeen
heard on this issue. The counsel for the applicant has argued that the issue of jurisdiction
does not come in the way as the petitioner has filed his claim by his being residing at
Village Rithana, Delhi and the area falls within the jurisdiction of North West District
where the matter pertains to. He has further argued that theissue of territorial jurisdiction
is not available to the insurance company after the issue settled by the Hon'ble Supreme
Court in as Malati Sardar vs. National Insurance Co. Ltd. &Anr., cited at 2016 ACJ
542, has ruled as under:

14. The provision in question, in the present case, is a benevolent provision for the
victims of accidents of negligent driving. The provision for teritorial jurisdiction has
to be interpreted consistent with the object of facilitating remedies for the victims of
accidents. Hyper technical approach in such matters can hardly be appreciated. There
is no bar to a claim petition being filed at a place where the insurance company, which

Dohi
 cases, has its business. In such cases, there is no
is the main contesting party in such
failure of justice. Moreover, in view of categorical
prejudice to any party. There is no 2009 ACJ 564 (SC), contrary vièw taken by
decision of this court in Mantoo Sarkar,
sustained. The High Court has failed to notice the provision
the High Court cannot be
ofsection 21, C.P.C."
No. 2 has contended that the said cited judgment pertains to a
12. The counsel for respondent
a claim under Motor Vehicles
Act and not under Employee's
case which was for
Compensation Act, 1923.

that both the "Act" are identical.

13.While reverting back the counsel for the applicant argued
in the proceedings before the
The provisions of the Motor Vehicles Act are applicable
Court in Ved Parkash Garg vs.
Employee's Compensation Act. The Hon'ble Supreme held that the judgment
Premi Devi -

1998 ACJ 1 has discussed it in detail. It has been

satisfied by the insurance company of the
passed under Employee's Compensation Act are of territorial
vehicle with which it is insured. He has further argued that the issue
Court in case titled as
jurisdiction has been dealt with by the Hon'ble Rajasthan High
Kaur &Ors." -S.B. Civil
"United India Insurance Company Ltd. vs. Smt. Narendra
Allahabad very recently has
Misc. Appeal No. 993/2008," and the Hon'ble High Court of
discussed the issue of territorial jurisdiction of Commissioner under Employee's
Vs.
National Insurance Company Ltd.
titled
Compensation Act, 1923 in the case as
Defective No. 459 of 2020,
Smt. Seema Devi &Ors. in First Appeal From Order
Karnataka in the case titled as
decided on 02.11.2020, and by the Hon'ble High Court of
Smt. Mahabunni &Ors. in
The Divisional Manager Oriental Insurance Co. Ltd. Vs.
Courts have
MFA No. 20690 2011, decided on 06.07.2021 whereby the Hon'ble High
of
held the judgment of the Hon'ble Apex Court in case Malati Sardar (supra) is applicable
in the cases under Employee's Compensation Act, 1923, therefore the Hon'ble Authority
claim petition. The issue of
has the territorial jurisdiction to entertain and decide the instant
territorial jurisdiction is thus decided in favour of the claimant and against the
respondent/insurance company.

ISSUE No. 2 &3

a driver on vehicle no. HR-55C-
14. The claim of the applicant is that he was employed as
8631-Truck owned by respondent no.1 for the last one and half year
and on 23-11-2012 he
The
received grievous injuries on his right leg out of and during the course of employment.
from Gurgaon to Dharuheda plant. The
applicant was on the business trip and the trip was vehicle reached at
vehicle was loaded with empty crates of lights. On 23-11-2012 when the
when the vehicle was
the place of accident at after Billoda village, it was 11.00 P.M.
on the road and another vehicle
crossing the puliya, there was a loaded vehicle parked
which was on the right side of the applicant and was driven by its driver in a very high
who tried to overtake him and turned his vehicle. Applicant tried to avoid this hit
speed,
but he failed and the vehicle of the applicant ran in the standing vehicle. Due to this
accident cabin of the vehicle was totally damaged and applicant caught up inside the cabin.
The applicant sustained grievous injuries on his right leg. Ambulance came after about 1/2
hours the injured was got out of the vehicle and taken to Rewari Hospital. He remained
there for one night thereafter he was shifted to Govt. Hospital, Gurgaon and he was

STUwo) pelhi
1923
 Thereafter he went to his native
discharged.
operated there and after 15-20 days he
was

was again admitted in Chandra Hospital Agra

and operated
place and after 5-6 months he substantial amount on his
He has incurred a
there. He remained there for 10-15 days.
treatment. In this accident the applicant
has been disabled and he is not in a position to do
and has become 100% disabled for the purpose of his
any work of his capacity
is not working properly. His earning capacity has
employment as a driver as his right leg
affidavit and he was cross examined at length by the
been totally reduced. He has filed his
witness and the said witness brought
counsel for the insurance company. He has brought
taken place and in that accident he
credible evidence to show that the accident had
sustained injury.
has shown the applicability of law
The counsel for the applicant in the given facts in
Hon'ble Supreme Court ( three judge Bench)
and he has relied on the Judgment of the has
cited at 1997 ACJ 517, wherein it
the case titled :Maghar Singh vs. Jaswant Singh,
beenheld:
and 2(1)(n) Accident arising
Compensation Act, 1923, sections 3(1)
-

Workmen's
injury
Claimant sustained which
of employment Workman
-

out of and in the

- -

course
in permanent disability
resulted in loss of both his hands just above the wrist resulting
toka machine Respondent
with 100 per cent functional loss while he was operating
-

Claimant did not possess any letter

contended that the claimant was not his employee
-

of appointment or any documentary evidence

for payments received by him for the
was that of
work done -

Evidence that the machine which the claimant was operating

had
claimant to the hospital after the injury and
respondent Respondent had taken the
-

under the
Whether the claimant was a workman
signed the bed-head ticket
-

of employment Held: yes."

and the accident arose out of and in the course
-

respondent

Court titled as Mackinnon Mackenzie & Co. Pvt.

In another case settled by the Apex
Ltd. vs. Ibrahim MahmoodlIssak
cited at 1969 ACJ 422, wherein it has been held that:

"Para no. 6...

rests upon the workman
In the of death caused by accident the burden of proof
case
arose out of employment as well as
in the course of
to prove that the accident
mean that a workman who comes to
court for relief
employment. But this does not
must necessary prove it
direct evidence. Although the onus of proving that the
by
out of and in the course of employment rests upon
the
injury by accident arose both
inference. On the one hand the Commissioner, must
applicant these essentials may be inference from the
on the other hand, he may draw an
not surmise, conjecture or guess,
inference. It is of course impossible to lay
proved facts so long as it is legitimate
a
which is sufficient to justify an inference being
down any rule as to the degree of proof
be such as would induce a reasonable man to draw it.
drawn, but the evidence must
Lancaster v. Blackwell Colliery Co. Ltd., observed:
Lord Birkenhead, L.C. in
inference or equal degrees of
i f the facts which are proved give rise to conflicting
them is a mere matter of conjecture, then, of
probability so that the choice between
course, the applicant
fails to prove his case, because it is plain that the onus in these

Delhi
 matters is upon the applicant. But where the known facts are not equally consistent,
where there is ground for comparing and balancing probabilities as to their respective
value, and where a reasonable man might hold that the applicant contends, then the
Arbitrator is justified in drawing an inference in his favour."

In another case settled by the Apex Court in a case titled as Mackinnon Mackenzie & Co.
Pvt. Ltd. vs. Ritta Fernandez cited at 1969 ACJ 419, whercin it has been held that :

...Whetherthe death arose out of and in the course of

employment - The test is whether there was any casual connections between the death
and his employment - Employer must produce evidence within his special knowledge,
otherwise adverse inference should be drawn.

15. The counsel for the insurance company has vehemently argued that the vehicle was
insured and owned by Jagmohan and not Rajesh @ Bittu. I have perused the case file and
have seen that in written statement the insurance company has stated that the vehicle was
insured in the name of Rajesh@ Bittu and the same stand was repeated in their evidence.
No where it has been made efforts to make improvement in their pleading. Once they have
stated in their written statement that the vehicle was owned and insured in the name of
respondent No. 1 how could they take a different stand unless they go in for amendment of
their pleading and also evidence. Even otherwise, it is not disputed that the vehicle is the
same which is in question. In this regard, the counsel for applicant has relied on the
judgment of the Hon'ble Supreme Court in : Firdaus vs. Oriental Insurance Co. Ltd.
cited (2017) 15 Supreme Court cases 674 wherein it has been held * Irrespective of
whether ownership of vehicle vested with D-1 Or D-4, liability ofrespondent Insurance co.
continued."

16. After perusal of the pleadings, evidence adduced, and the law placed, I am of the
considered opinion that accident had taken place and the applicant sustained injury while
being posted on the vehicle. In view of the above, it is proved that the applicant/claimant
was an employee posted on the vehicle as driver and he received injuries during and out of
the course of employment in an accident. Thus, this issue is decided in favour of the
applicant/claimant and against the respondents.

RELIEF:
In the claim application it has been stated that the applicant was aged 25 years at the time
of accident. The applicant's date of birth as has been shown in his driving license is
06.05.1987 given that the applicant had completed 25 years of his age on the day of
accident. I hold that the applicant was 25 years old at the time of accident. As to the wages
of the workman, it has been stated that the applicant was drawing wage @ Rs. 8,000/- per
month plus Rs. 200 per day as food allowances. But as per Section 4 of the Act his wage
could be taken Rs. 8000/- as per the notification by the Central Govt. Hence his wage is
taken Rs. 8000/- per month. The applicant sustained injuries on both legs and the
description given by the Medical Board shows legs injuries rendering him disabled. He is

.1922
Dehi
 in a position to do
disablement make it a case
that the applicant is no more
certified that He had got
it is a case of total disablement.
work which he was doing. Hence of 70%
the driving disablement to the extent
examined. He has been assessed to have physical
himself more in a position to
undertake the work.
his injury both lower limbs. He is no
that the applicant was doing the work
-

showing argued
for the applicant has vehemently
The counsel the use of his physical body. Given
vehicle which was being performed by vehicle
on transport
more in a position to
do the work of driving on transport
the disability he is no he is not able to do much
before accident. With the broken body
which he was doing Hon'ble
relied on the law declared by the
work. The counsel for the applicant has
physical of total loss of
Courts and in bed roll of judgments it is a case
Supreme Court and High vs. Srinivasa Sabata
He has placed his reliance on Pratap Narain Singh
-

earning capacity. Court has held that the workman

was no more in
cited at 1976 ACJ 141 whereby the Apex hand. Seeing that physical
a position to take up
the work of carpentry with the one
it was a case
disablement could be 70% but as far as loss
of earning capacity is concerned
attention
Counsel of the claimant has drawn my
of total loss of earning capacity. The Ld. titled as
Court of Delhi in the case
and has placed the judgment of Hon'ble High Rana
National Insurance Co. Ltd Vs. Shri Ranjit Singh @ Rana Shri Ranjit Singh @
In another
100% loss of earning capacity.
FAO. No.246/2007_he was held entitled for Hon'ble Justice N.V. Ramana ) in
judgment of Hon'ble High Court Andhra Pradesh ( per II
MantaiSambasiva Rao &Anr., cited at
the titled as Rayapati Venkateswara Rao vs.
case
N.V. Ramana, in his Judgment held that
(2001) ACC 300, decided. Hon'ble Mr. Justice
because of his injury on leg due to
the applicant was employed as cleaner on the truck and
vehicle/ truck and he was held
fracture he would not be able to do cleanary on a transport
entitled for 100% loss of earning capacity hence I hold that
this is case of total loss of his

earning capacity.

earning capacity the applicant/claimant is entitled to

17. In the given wage, age and loss of
compensation as under:

i) Relevant factor of 25 years 216.91

60% ofwages@Rs. 8000/- pm Rs. 4800/-
ii)
ii) Amount of compensation

216.91 X8000 X60 10,41,168/

100

The applicant/claimant is also entitled to interest as per Section 4A of the Act' @12% per
annum from 30 days after the accident.

18.Therefore, the applicant/claimant is entitled to receive injury compensation from

respondent no. 1 but as the said respondent no. I has taken an insurance coverage hence in
spirit of indemnifying the insured, the respondent no. 2 i.c. Rs. 10,41,168/- ( Ten lacs
forty one thousand one hundred sixty eight) only.

- i l

Dofhi
19.For penalty, the facts of the case evidently show that the owner of the vehicle was
having
notice of accident since the day the accident took place. The accident in the case took
place
on 23.11.2012 almost 10 years ago. He did not bother even to appear in spite of service of
notices umpteen times. But he remained completely unconcerned about the plight of the
poor workman who sustained injury in his body. He did not bother for the statutory
provision. He had certainly a duty cast on him as per Section 4A to take step with a
reasonable urgency. But he failed. Given this and noticing all that I am of the view that
the said respondent i.e. respondent No. 1 is the only responsible for the delay and he did
not take pain to come to this authority to justify that. I see that this is a case where the
penal provision certainly needs attraction. I feel it is a fit case for imposition of penaltyto
50% of the principal amount of injury compensation. An amount of Rs. 5,20,584/-
(Rupees five lacs twenty thousand five hundred eighty four) only as penalty is imposed
against respondent No. 1.

20.M/s Oriental Insurance Company Ltd. is directed to

amount of Rs. 10,41,168/ Rs. Ten lacs
deposit before this Authority an
forty one thousand one hundred sixty eight
only )on account of compensation payable to the applicant/claimant along with interest @
12% P.A. w.e.f. 22.12.2012
till
its realization. For penalty Rs. 5,20,584/- respondent No.
1 is directed to deposit. The amount of compensation along with interest and penalty be
deposited by the respective parties through pay order in favour of "Commissioner
Employee's Compensation" within a period of 30 days from pronouncement of the order
before this Authority. Failing the
land revenue.
deposit the ordered amount shall be recovered by way of

21.Given under my hand and seal

of this Authority on this 9 day of August, 2022.

(S.C.adav)
Commissioner
Employee's Compensation Aetge1923

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