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2017 DIGILAW 4201 (DEL)

Kewal Krishan Gujral v. Sonmati Devi

2017-10-30

VALMIKI J.MEHTA

body2017
JUDGMENT : VALMIKI J. MEHTA, J. CM Nos. 38810-11/2017 (Exemptions) Exemptions allowed subject to just exceptions. CM stands disposed of. CM Nos. 38812/2017 (delay in filing) 38813/2017 (delay in re-filing) For the reasons stated in the applications, delays in filing and re-filing are condoned. CMs stand disposed of. FAO No. 416/2017 & CM No.38809/2017 (stay) 1. This First Appeal under Section 30 of the Employee’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’) is filed by the respondent in the proceedings before the Employee’s Compensation Commissioner impugning the judgment dated 8.2.2017 by which the Employee’s Compensation Commissioner has allowed the claim petition filed by the claimant seeking compensation on account of death of her husband Sh. Vrindawan Tiwari employed as a mason by the appellant who owned the building/property 16A/15 WEA (FF) Karol Bagh, New Delhi (in short ‘the subject property’). Compensation of Rs.4,98,800/-has been awarded with interest at 12% from one month after the date of the accident. 2. The facts of the case are that the respondent/claimant filed the subject claim petition pleading that her husband Sh. Vrindawan Tiwari was employed by the appellant as a mason to do the renovation work at the subject property. On 28.11.2012 at about 10A.M. while doing the renovation work the chhajja/ledge of the building fell down while the deceased Sh. Vrindawan Tiwari was working there at that time. Deceased Sh. Vrindawan Tiwari sustained grievous multiple injuries all over his body resulting in his death. He was brought declared dead to the hospital. Lady Harding Hospital issued an MLC No. 37196/2012 and postmortem report was given vide PMR No. 563/2012. A police case was registered under FIR No.234/2012 under Section 288/304A of IPC at Police Station, Karol Bagh, New Delhi. The deceased was 56 years of age at the time of his death. Respondent/claimant approached the appellant to pay compensation on account of the death arising out of and in the course of employment but the position of non-payment continued, and when in spite of the respondent/claimant seeking a demand notice dated 25.11.2013 through registered post the claim was not paid, hence the claim petition was filed. 3. Appellant contested the claim petition and pleaded that the deceased Sh. 3. Appellant contested the claim petition and pleaded that the deceased Sh. Vrindawan Tiwari was working as a Petty Labour Contractor and was given the contract for installation of railing in front of the first floor veranda and raising height of boundary wall of second floor. It was contended that there was no ledge/chhajja but there was a proper fixed structure where 6-7 heavy flowerpots were kept. It was pleaded that when the deceased started working on the first floor the deceased was in hurry and he did not prepare the support from the ground floor. It is further pleaded that the deceased when working on the chhajja lost control and fell down on the ground floor thereby seriously injuring himself. It was pleaded that the accident therefore happened on account of negligence of the deceased in not providing the necessary support to the chhajja in spite of the deceased being provided with necessary items such as ballies, phattas, rassi, peti etc. 4.(i) After pleadings were completed the following issues were framed on 20.10.2014:- “(a). Whether accident occurred in the course of employment with respondent resulting petitioner expired? (b). “If so, what relief”? What directions are necessary in this regard? (ii) Additional issues were also framed on 22.12.2015 as under:- “1. Whether there was employee and employer relationship between the deceased and the respondent? 2. Whether the accident arose out of and during the course of his employment with the respondent? 3. Whether the deceased was a workman or a Petty contractor as claimed by the respondent? 4. What amount of the compensation if any the claiming are entitled for? 5. Any other relief?” 5. The respondent/claimant filed affidavit by way of evidence and she was cross-examined by the appellant but nothing adverse came on record. Appellant also filed his affidavit by way of evidence and was cross-examined by the respondent/claimant. 6. Two issues are argued before this Court on behalf of the appellant. One was as to whether the deceased Sh. Vrindawan Tiwari was the employee of the appellant and secondly whether the deceased died on account of his own negligence. 7. As regards the first issue that the deceased was an employee, the Employee’s Compensation Commissioner has referred to the provision of Section 2(1)(dd) of the Act which defines an employee, and the Employee’s Compensation Commissioner accordingly held that the deceased Sh. 7. As regards the first issue that the deceased was an employee, the Employee’s Compensation Commissioner has referred to the provision of Section 2(1)(dd) of the Act which defines an employee, and the Employee’s Compensation Commissioner accordingly held that the deceased Sh. Vrindawan Tiwari being employed by the appellant/owner of the subject property was an employee for the purposes of the Act. The Employee’s Compensation Commissioner held that any person engaged in construction work is covered under the definition of employee as per Section 2(1)(dd) of the Act and hence it has to be held that there was a relationship of employer and employee between the appellant and the deceased Sh. Vrindawan Tiwari. I completely agree with this conclusion of the Employee’s Compensation Commissioner. 8.(i) So far as the second issue is concerned, learned counsel for the appellant argued that the appellant is not liable in view of the provision of Section 3(1)(b)(iii) of the Act and which provides that once the employee has been given safety guard or other devices for the purpose of securing safety of employee and the employee does not use the safety devices then in such a case the appellant/employer was not liable. (ii) In this regard it is seen that except making a self-serving statement in the affidavit by way of evidence, appellant filed no proof whatsoever that the appellant had provided to the deceased Sh. Vrindawan Tiwari the necessary safety equipment or the scaffolding material including ballies, phattas, rassi, peti etc. Therefore, a self-serving averment cannot be taken as discharge of onus of proof, and more so this Court cannot under Section 30 of the Act consider such an aspect to raise a substantial question of law for this appeal to be entertained. The Employee’s Compensation Commissioner therefore was entitled to arrive at a finding that there was no negligence of the deceased so as to award compensation to the respondent/claimant. 9. No substantial question of law arises. Dismissed.