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2014 DIGILAW 1186 (PNJ)

Assotech v. Sushila Devi

2014-08-13

RAJIV NARAIN RAINA

body2014
JUDGMENT : Rajiv Narain Raina, J. This is an appeal u/s 30 of the Employee's Compensation Act, 1923 (in short 'the Act') for setting aside the order dated 30th April, 2014 passed by the Commissioner under the Workmen's Compensation Act, 1923, Circle-3, Gurgaon awarding compensation of Rs. 6,65,160/- with 12% interest per annum to the claimants of late Lal Dev Prasad who died of electrocution in the premises of the appellant on 27th July, 2012. 2. It is the case of the claimants in the application filed u/s 22 of the Act and in the oral evidence adduced on record that deceased Lal Dev Prasad was employed as a gardener with the appellant on a monthly salary of Rs. 8,000/-. The deceased left behind his wife and two children. He was 46 years of age at the time of death. The appellant denied the master and servant relationship. The claim was refuted before the Commissioner on the ground that the appellant never utilized the services of the deceased as an employee. Neither was the name of the deceased entered in the register of workmen employed by the appellant nor was his name included in the muster rolls of employees engaged by the appellant on the date of the accident i.e. 27th July, 2012. The deceased was a trespasser who had entered the premises of the appellant without consent. The testimony of PW1 and PW2 Sushila Devi Prasad, widow of the deceased were insufficient to prove whether the deceased was an employee of the appellant. Neither was a co-workman nor any independent witness was joined or examined in evidence to substantiate the plea of relationship of employment. Moreover, no documentary proof in the form of pay slips or any appointment letter etc. was placed on record by the claimants to prove the factum of employment. It is the contention of the learned counsel for the appellant that onus lies on the claimants to prove the factum of employment and they having failed to do so by way of documentary evidence, the claim cannot be sustained. 3. The death was reported to the police and Constable Deepak was produced as PW3 who tendered copy of the post mortem report as P1 and ration card as P2. The claimant's evidence upon which was closed. 4. The appellant produced their sole witness Radhey Sham as RW1. 3. The death was reported to the police and Constable Deepak was produced as PW3 who tendered copy of the post mortem report as P1 and ration card as P2. The claimant's evidence upon which was closed. 4. The appellant produced their sole witness Radhey Sham as RW1. RW1 stated that he was working as a Supervisor with the appellant for the last 10 years and had never seen the deceased. He deposed that a false FIR was lodged and the claim for compensation was made to extort money from the appellant. He, however, stated that Lal Dev Prasad entered the appellant's premises with bad intention and the death was not during the course of his employment. The presence of the deceased on the spot has not been categorically denied on the fateful day in the premises of the appellant. The full text of the statement of RW1 has not been placed on record of this appeal. The learned counsel for the appellant is hard pressed to deny the presence of the deceased on the date of the occurrence in the premises of the appellant. Death by electrocution has not been disputed. The appeal has been filed beyond limitation and a prayer has been made u/s 5 of the Limitation Act, 1963 read with Section 13 of the Employee's Compensation Act, 1923 to condone the delay of 4 days in filing the appeal. 5. The delay has been explained in the application which pleadings may not measure up to acceptance of sufficient cause for the delay but the delay is marginal and is, therefore, condoned in order to examine the case on merits. 6. In order to know the specific stand of the appellant before the Commissioner, this Court asked the learned counsel to produce the written statement filed by the company before the learned Commissioner, from where I find that a strange story has been recounted in the preliminary objections that late Lal Dev Prasad was a habitual trespasser who used to illegally enter into the premises of the company where construction work at site was in progress. It is stated that the guards deployed by the company had on several occasions tried to catch Lal Dev Parsad and remove him from the premises of the appellant. It is stated that the guards deployed by the company had on several occasions tried to catch Lal Dev Parsad and remove him from the premises of the appellant. When asked whether the matter had been reported to the police, the learned counsel was unable to apprise the Court by positive assertion. The claimants' version is that the deceased while performing his duties as a gardener during the course of employment was opening the tube-well valve to draw water for the plants when he suddenly fell down and got electrocuted due to the negligence of the Foreman in electrifying the apparatus. It was not denied that on 27th July, 2012 late Lal Dev Prasad was indeed electrocuted at the site of the appellant's construction works and died. 7. Besides, an application has been filed under Order 41 Rule 27 CPC for leading additional evidence in the shape of Payment Statement Salary for the month of June, 2012 which does not reveal the name of the deceased as amongst those Masons and Helpers employed at the work site at Gurgaon. This document for all its worth was not produced before the Commissioner and there is no reason for this Court to except it in additional evidence or to examine it in the present appeal. In any case it cannot be said absolutely that this document is conclusive evidence that the deceased was not employed by the appellant at its project site in Sector 99, Gopalpur, Garhi Road, Gurgaon. 8. The learned Commissioner has accepted the version of the claimants in the absence of any documentary proof produced on record by the appellant. The initial burden may have been on the claimants but that was shifted in the face of the oral evidence adduced by the claimants. Learned Commissioner has found himself unable to rely on the sole oral testimony of RW1. This Court finds nothing perverted in the reasoning adopted by the learned Commissioner especially when juxtaposed with the fact that the presence of the deceased was not denied at the site or that the death did not occur due to electrocution in the premises of the appellant. The fact that a document is now sought to be produced by way of additional evidence affirms the belief of this Court that the appellant has more to hide than to show. The fact that a document is now sought to be produced by way of additional evidence affirms the belief of this Court that the appellant has more to hide than to show. A legal inference cannot be drawn from the Payment Statement (Summary) that the deceased was not employed by the appellant. If they say that the claimants have been unable to produce proof of employment or any appointment letter, it has not been shown to this Court in the application for additional evidence that across board appointment letters were issued to all the Masons and Helpers whose names are found in the Payment Statement (Summary) for the month of June, 2012 and no departure was made. The names of the employees mentioned in the Summary have not been connected in relationship with labour laws such as the ESI an EPF which could be probative evidence though not conclusive of the employment status of the deceased. The claimants for all they could do asserted that the deceased was employed as a Gardener by the appellant builder at the construction site. When asked by the Court, the learned counsel could not deny that the site was a building project where gardeners could possibly be employed for preparatory landscaping of the project. 9. Learned counsel relies on a Single Bench decision of Karnataka High Court in The New India Assurance Co. Ltd. Vs. Showkath @ Showkathkhan and Shri Syed Peer (2011) ACJ 2234, to urge that where there is a total denial of relationship of employment, then self-serving testimony by way of parol evidence of a claimant is to be examined with some circumspection. The initial burden is to be discharged by the employee by producing prima facie material/evidence to demonstrate that he was working under the employer by either examining a co-employee or by any other independent witness. In such a case, the employer cannot be called upon to tender negative evidence. Reference is made to paragraph 17 of the judgment which reads as follows :- "17. Section 3 of the Workmen's Compensation Act mandates that employer has to pay compensation in case of an injury caused to a workman by accident arising out of and in the course of employment. Reference is made to paragraph 17 of the judgment which reads as follows :- "17. Section 3 of the Workmen's Compensation Act mandates that employer has to pay compensation in case of an injury caused to a workman by accident arising out of and in the course of employment. Thus, an employee has to cross the threshold bar by tendering evidence and establishing the fact that he was employed by his employer in the event of there being a denial by the employer. In the instant case, as noticed hereinabove, there is total denial of the relationship. When such being the case, the contention of Mr. Rudragowda, that self-serving testimony was sufficient to accept that there exists relationship of employer and employee between the parties and on account of non-examination of the driver of the lorry by the claimant, it has to be inferred that there exists relationship of employer and employee is to be examined with circumspection. As stated hereinabove, initial burden is to be discharged by the employee, by producing prima facie material/evidence to demonstrate that he was working under the respondent No. 2 in the lorry involved in question either by examining any other co-employee or any other independent witness. In the instant case there is no material of whatsoever nature produced to hold that such relationship exists. Self-serving testimony would not be safe to rely upon particularly in view of employer denying the relationship by not only filing the statement of objections but also when he has entered the witness-box and denied such relationship. In the absence of the said material, it cannot be held that there exists any relationship of employer and employee. Except the self-serving testimony of the claimant there was no other material produced by the claimant to establish the relationship of employer and employee in the instant case. Hence, the contention of respondent's counsel that owner of the vehicle, namely, the employer had to prove that there was no relationship by examining the driver of the vehicle cannot be accepted as it would amount to calling upon a party to tender negative evidence. As such, I am of the considered view that claimant has failed to establish that there exists relationship of employer and employee. Accordingly, Question No. 2 is answered in favour of the appellant and against respondent No. 1." 10. As such, I am of the considered view that claimant has failed to establish that there exists relationship of employer and employee. Accordingly, Question No. 2 is answered in favour of the appellant and against respondent No. 1." 10. There can hardly be any quarrel with the proposition enunciated above. However, I find that it is a case of injury and not a case of death. An injured party is the best spokesmen of facts and for him it may become necessary to produce supplementary evidence in proof of relationship of master and servant and of the nature of injury and whether it was during and in the course of employment. The present is a case of death at site and dead men tell no tales. The learned Commissioner was confronted with a case of circumstantial evidence, and then the theory of probability and preponderance of evidence would come into play, which in the present case leans far more heavily in favour of the claimants and against the appellant. Probability has always been the surest way to the shrine of truth and justice. The balance of probability reflects the balance of truth, which culminates in the balance of justice. 11. Faced with this situation, the learned counsel contends that liability to pay interest begins after one month from the date on which compensation falls due and compensation falls due on the date on which the claim of workman is adjudicated and the liability for payment of interest u/s 4A(1) of the Act should be ordered accordingly and payment and interest component deserves to be reduced to 6% on the amount of compensation from the date of the order which is the date of the adjudication. He relies on National Insurance Co. Ltd. Vs. Mubasir Ahmed and Another (2007) 2 SCC 349 , and Uttar Pradesh State Road Transport Corporation now Uttarakhand Transport Corporation v. Satnam Singh rendered on 7th February, 2011 reported in (2011) 14 SCC 758 and paragraph 7 of the latter judgment which reads:- "7. In National Insurance Co. Ltd. this Court has held that there is no indication in Section 4A(1) as to when the compensation payable u/s 4 falls due and therefore it has to be taken that the compensation becomes due on the date on which the claim for compensation is adjudicated. In National Insurance Co. Ltd. this Court has held that there is no indication in Section 4A(1) as to when the compensation payable u/s 4 falls due and therefore it has to be taken that the compensation becomes due on the date on which the claim for compensation is adjudicated. In view of the abovementioned judgment of this Court, the direction given by the Workmen's Compensation Commissioner which is confirmed by the High Court, requiring the appellant to pay the amount of compensation with 6% interest from the date of the accident will have to be substituted by the direction to the appellant to pay the amount of compensation with 6% interest from the date of the award made by the Workmen's Compensation Commissioner." 12. However, the Supreme Court in The Oriental Insurance Company Ltd. Vs. Siby George and Others (2012) 12 SCC 540 , pronounced on 31st July 2012 have authoritatively answered the question as to when does the payment of compensation under the Workmen's Compensation Act 1923 becomes due and consequently what is the point in time for which the interest is payable on the amount of compensation as provided u/s 4A(3) of the Act and have answered that the relevant date for the determination of the compensation and interest is the date of the accident and not the date of the adjudication of the claim. The Supreme Court followed its earlier dicta of a 1975 decision of a 4 Judge Bench decision in Pratap Narain Singh Deo Vs. Srinivas Sabata and Another (1976) 1 SCC 289 , directly answering the question observing and holding in paragraphs 7 and 8 of the decision as follows : "7. Section 3 of the Act deals with the employer's liability for compensation. Sub-section (1) of that section provides that the employer shall be liable to pay compensation if "personal injury is caused to a workman by accident arising out of and in the course of his employment." It was not the case of the employer that the right to compensation was taken away under sub-section (5) of section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due with after the Commissioner's order dated May 6, 1969 u/s 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of a agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employer's liability to pay compensation u/s 3, in respect of the injury, was suspended until after the settlement contemplated by section" "8. It was the duty of the appellant, u/s 4A(1) of the Act, to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-section (2) of section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondent's personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making and application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement setting the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty" 13. In deference to the judgment of the Supreme Court in Partap Narain Singh Deo and Siby George, interest would run from the date of accident and not from the date of award on an adjudication. In deference to the judgment of the Supreme Court in Partap Narain Singh Deo and Siby George, interest would run from the date of accident and not from the date of award on an adjudication. The Court drew a distinction between 'interest due to default in payment of compensation' and 'penalty for an unjustified delay in payment of compensation' and held that one the aforesaid two decisions under consideration (both in the same strain of thought) was based on a misreading of Sub-section 3 of Section 4A of the Act. It is clear, the Court observed that payment of interest is a consequence of default in payment without going into the reasons for delay and it is only in case where the delay is without justification the employer might also be held for penalty after giving him a show cause. Therefore, a finding to the effect that the delay in payment of the amount due is unjustified is required to be recorded only in case of imposition of penalty and no such finding is required in rate of interest which is to be levied on default per se. In short the Supreme Court held that the line of reasoning in Mubasir Ahmed etc. are incorrect and are not binding precedents. 14. For the foregoing reasons, the appeal stands dismissed.