IN THE HIGH COURT OF DELHI  AT NEW DELHI

 

SUBJECT : COMPENSATION FOR DECEASED WORKMEN

 

FAO No. 295/2004

 

Judgment reserved on : 14.03.2006.

                             

Date of decision : 21.03.2006.

 

Shri R.L. Bhalla                                                                    ...Appellant

 

VERSUS

 

Smt. Poonam Devi & Another                                              ...Respondents

 

Advocates who appeared in this case :

 

 

For the appellant    : Mr. K.R. Gupta with Ms. Kiran Dharam,  Advocates.

 

For the respondent : Mr. D.P. Sachdev, Advocate

 

J.M. MALIK, J.

 

1.                           ADMIT.

 

2.                           The parties have locked horns on the issue, whether Dhruv Thapa, deceased, came within the term, “workman” as defined in Workmen's Compensation, Act 1923. Smt. Poonam Devi and Master Neeraj, respondents no.1 and 2 moved an application under Workmen's Compensation Act, 1923, before the Commissioner on 17th April, 1995.  It is averred that Dhruv Thapa, their husband and father respectively, aged about 35 years, a workman was employed as Chowkidar since 1987 by the present petitioner/appellant, received personal injury by accident arising out of and in the course of his employment resulting in his death on 10th June, 1993.  It is explained that cause of injury was that when he was on duty on the premises of the appellant, some accident took place within the premises of the appellant.  Again the cause of injury is best known to the appellant.  The dead body was taken to Safdarjang Hospital  and its autopsy was got conducted.  Dhruv Thapa was getting Rs.1,000/- per month.  Notice requiring the appellant to pay compensation was sent but it did not ring the bell.  In their petition, the respondents have claimed Rs.78,824/- (Rs.400/197.06).

 

3.                           The appellant contested the above said petition.  It is objected that Dhruv Thapa was employed as a part time domestic Chowkidar  to work at W-110, Greater Kailash-II, New Delhi.  He was getting a salary of Rs.650/- per month for about five years until his death.  It is explained that Dhruv Thapa was a personal employee of the respondent and was neither a workman within the definition of the Workmen's Compensation Act, 1923 nor was he employed in any of the capacities and in employment as mentioned in the said Act.  The maintainability of the said application as well as the jurisdiction of the Tribunal have been called into question.  It is also denied that Dhruv Thapa died on duty in an accident.  Again, no accident took place at appellant's residence at all.  It is, however, explained that Dhruv Thapa was dead drunk on 9th June, 1993 and did not attend his duty.  On 10th June, 1993 he was  found dead on the lane outside the house of the appellant.  The police also investigated this case.  Although, the appellant was under no obligation to the applicants, yet, on humanitarian grounds after death of Thapa, he extended help in kind and money to the applicants upto Rs.6,000/-.  Reply in response to the notice was given but it was received back with the report that the addressee was not available. 

 

4.                           In the rejoinder, the respondents denied the case of the appellant and reiterated their above mentioned claims. On the pleadings of the parties, the following issues were framed :

 

i)Whether the application discloses any cause of action for invoking jurisdiction of this Hon'ble Court ?

 

ii)In what amount the compensation be awarded ?

 

iii)Relief.

 

5.                           After hearing counsel for the parties, learned Commissioner Workmen Compensation vide its order, dated 16th August, 2004 gave award in favour of the respondent and against the appellant in the sum of Rs.78,824/- along with interest at the rate of 6% per annum from the date of filing the application dated 6th February, 1994 onwards. While deciding issue no.1, the Commissioner gave the following finding :

 

“From the record I find that the deceased was doing his duty as Chowkidar for twelvehours i.e. From 10.00 pm to 6.00 am to guard his house and also look after the security work of transport business.  Therefore, the legal heirs are entitled to get compensation.”

 

6.                           The learned counsel for the appellant submitted that finding given by the Commissioner, “and also look after the security work of transport business”  is not based on any evidence.  He argued that the learned Commissioner has drawn ingenuous inferences based on speculation and flights of fancy.  On the other hand the learned counsel for the respondents stressed that the judgment in question fully supports his case.  

 

7.                           After having subjected the evidence to a closet scrutiny and after having heard the counsel for the parties, I find merit in the appeal. During her cross-examination, Smt. Poonam Devi, applicant admitted that Mr. Dhruv Thapa used to work at the residence of Mr. Bhalla.  She denied that Dhruv Thapa was working during night time.  She denied that her husband was getting Rs.650/- per month but volunteered that he was  getting Rs.1,000/- per month.  She deposed that she was informed by one of the drivers of Mr. Bhalla that her husband had fallen down from his house.  She stated that her husband was a Chowkidar.  To a court question, she stated that Mr. Bhalla was operating a transport business. In her affidavit dated 4th October, 1999, Smt. Poonam Devi did not state that deceased also used to look after the security work of transport business.  She merely stated that the deceased was employed as Chowkidar since 1987 with the Management-respondent. She also did not state that her husband ever worked at the business premises of the respondent. Her another witness, Pooran Bahadur, in his cross examination deposed that Dhruv Thapa worked at Mr. Bhalla's residence and his duty hours were eight hours w.e.f. 10.00 am to 6.00 pm.  He admitted that he had wrongly deposed in his affidavit that Dhruv Thapa worked for Mr. Bhalla for twenty four hours.  He could not say whether the police found the body of Dhruv Thapa at the road side because he was not present there at that time. I have also perused the affidavit of Pooran Bahadur.  Paras numbers 2 and 4 of Pooran Bahadur are reproduced as follows :

 

“2.That the workman Dhruv Thapa, husband of the petitioner was known to me and I knew him well personally that he was employed with the respondent to work as a Chowkidar at the residence of the respondent in Greater Kailash, New Delhi.

 

4. That he was detailed on duty through me as I knew the respondent as he wanted a Chowkidar at his residence to work and remain there for twenty four hours.”

 

8.                           On the other hand, Satpal Nanda stated that Dhruv Thapa was their domestic servant.

 

9.                           From the statements given by Poonam Devi and Pooran Bahadur, it is clear that the deceased Dhruv Thapa used to work in the residence of the appellant.  This fact comes out from the horse's mouth itself.  The absence of evidence that deceased Dhruv Thapa was working as workman or he used to look after the security work of transport business has brought the respondents' case to the brink of a precipice.  Absence of this kind of evidence dampens the ardour of respondents' case.  They are trying to make bricks with straw.  There is not even a shred of proof in this context.  It has deleterious effect on  their case. 

 

10.                         In Central Mine Planning and Design Institute Ltd. V. Ramu Pasi and Another, J.T. 2005(1) SC 481,  the employee was not employed for the purposes of the employer's trade and business and it was held :

 

“A bare reading of the said Act shows that the expression 'workman' as defined in the Act does not cover a casual worker.  There was also no definite material adduced to show that the claimant was employed for the purposes of the employer's trade or business.”

         It is thus clear that this authority applies to a hair to the facts of this  case.

 

11.                         Similar view was taken in other authorities reported in Official Liquidator v. K.S.E. Board, Kerala (1990) 67 Company Cases 577, Rebati Gantayat v. Haguru Sethi, 1986 LAB I.C. 1511 and State of Gujarat v. Rajendra Khodabhai Deshdia, 1992 LAB. I.C. 1259. 

 

12.                         In the circumstances, I find that the appellant is not liable to pay compensation to the deceased.  The amount deposited by appellant with the Commissioner of Workmen Compensation,  is already stand refunded to the appellant vide order dated 27th April, 2005, by my learned Predecessor.  I, therefore, accept this appeal and set aside the order passed by the Commissioner (Workmen).  Lower court's file be returned along with copy of this order forthwith.

 

                              File be consigned to the Record Room.

 

 

                                                                                            Sd./-                                                                                              

             J .M. MALIK, J.

March 21, 2006