Oriental Insurance Company vs Lata Devi and Others

Sanjay Karol, J—Appeal stands admitted on the following substantial questions of law:--

"1. Whether the award of the Commissioner suffers from illegality and is unsustainable in the absence of necessary pleadings, issues and findings? No special issue qua employer -employee relations has been framed. The effect of non-framing of material issues?.

Whether the award of the Commissioner suffers from illegality and is unsustainable by wrongly deciding employer-employee relationship which apparently did not exist?.

Whether the Commissioner has erred while misinterpreting the evidence about deceased under the employment of someone else especially when the owner of the vehicle has not produced any record of recruitment to prove the employment of the deceased?

Whether the Ld. Commissioner was justified in imposing the interest and penalty on award amount upon the insurance company in the absence of any contract or statutory provision empowering him to do so, that too from the date of accident?."

In so far as, the substantial question No. 4 is concerned, the issue is no longer res integra, in view of the judgment rendered by the Apex Court in Saberabibi Yakubbhai Shaikh and Others Vs. National Insurance Co. Ltd. and Others, (2014) 1 ACC 82 : (2014) ACJ 467 : AIR 2014 SC 1393 : (2014) AIRSCW 1584 : (2014) 1 JT 550 : (2014) 1 SCALE 153 : (2014) 2 SCC 298 .

In so far as question No. 1 to 3 are concerned, essentially it is the appellant''s grievance that employee-employer relationship remains unproven on record. It be only observed that even though only the present appellant had taken objection with regard to the same, however, at the time of framing of issues, perhaps it was not pressed. No issue stands framed and prior to filing of the present appeal no objection was raised or order challenged.

Be that as it may, it stands established on record that deceased Ravi Thakur, predecessor-in-interest of the present claimants, died in a motor vehicle accident which took place on 8th November, 2006. In the claim petition, it stands clearly averred that Ravi Thakur, as an employee of Chet Ram, had driven the vehicle, which fact was also not disputed by the employer.

Despite the fact that no issue was framed, claimants led evidence to establish such relationship. Testimonies of Devinder Kumar (AW-1), Lata Devi (AW-2) and Mukesh Kumar (AW-3) are evidently clear with regard to the same. In view of admission by the employer, claimants were not required nor was there any necessity of leading any documentary evidence.

Significantly, it was never the case of the appellant that the employer and the claimants were acting in conclusion with each other.

Some attempt, through the testimony of Jiwan Thakur (RW-2) was made by the appellant to establish factum of employment of deceased Ravi Thakur as a Security Guard with the ICICI bank. Noticeably, oral testimony of this witness does not establish such fact. Ravi Thakur is stated to have been employed with a bank. But no documentary evidence with regard to the same stands placed or proven on record. Neither his letter of appointment nor his salary slip or bank account stands proved on record. Oral testimony of the Manager of the bank, in no manner, would establish factum of employment as a Security Guard, more so, in the light of other ocular evidence which has come on record. Crucially, in response to the petition, no plea of such employment was ever taken by the appellant. Hence, it cannot be held that the award dated 30.10.2012 passed by the Commissioner, Employee''s Compensation Court No. 2, Mandi in WCA No. 9 of 2011 titled as Smt. Lata Devi and others versus Sh. Chet Ram and another is perverse, illegal or suffers from any absence of necessary pleadings. There is no illegality, infirmity or perversity in the impugned award. As such, substantial questions of law No. 1 to 3 are answered accordingly.

The present appeal is accordingly disposed of. Pending applications, if any, also stand disposed.