Reliance General Insurance Co. Ltd. vs Ashok Kumar & Anr

Valmiki J. Mehta, J

This first appeal under Section 30 of the Employeeâ€s Compensation Act, 1923 (hereinafter referred to as “the Actâ€) is filed by the insurance

company impugning the judgment of the Employeeâ€s Compensation Commissioner dated 15.6.2015 by which the Employeeâ€s Compensation

Commissioner has allowed the claim petition which was filed by the claimant/respondent no.1 herein and has granted compensation of Rs.5,16,672/-

along with interest at 12% per annum from the date of the accident till realization.

The facts of the case are that the respondent no.1/claimant pleaded that he was employed as a co-driver by the respondent no.2 herein (respondent

no.1 before the Employeeâ€s Compensation Commissioner), on the truck/vehicle owned by him being HR-38M-8225. It was pleaded by the

respondent no.1/claimant that on 14.11.2009 he was on a business trip from Delhi to Calcutta and when the subject truck reached police station

Nawab Ganj near Allahabad at 7A.M. there was an accident on account of another vehicle coming from the opposite direction and hitting the said

truck HR-38M-8225. It was pleaded that on account of the accident, the respondent no.1/claimant was caught in the steering and he had to be

extricated by cutting the steering whereby his arms and legs were crushed. It was also pleaded that respondent no.1/claimant suffered injuries in his

ankle and also that his teeth were broken. It was pleaded that the respondent no.1/claimant was taken to the hospital and plate was fitted in his arm

and where he remained admitted for four days, and thereafter, the respondent no.1/claimant was shifted to his native place at Punjab where he took

treatment. It was pleaded that the respondent no.1/claimant was earning Rs.6,000/- per month plus Rs.100/- per day as diet money and was 25 years

of age at the time of accident. It was pleaded that notice was served by the respondent no.1/claimant upon the respondent no.2/employer under

Section 10 of the Act. It was pleaded that due to injuries caused by the accident; the respondent no.1/claimant had become totally disabled and was

not in a position to carry on any work. Hence the claim petition was filed pleading 100% disability.

3.(i) The employer/respondent no.2 herein, appeared and admitted to the claim petition. It was admitted by the respondent no.2 that he was the owner

of the vehicle. It was also admitted by the respondent no.2 that there was a relationship of employer and employee between him and the respondent

no.1/claimant. It was also admitted that the accident was caused out of and in the course of employment and that the vehicle was insured at the time

of the accident.

(ii) The appellant/insurance company contested the case. It was denied that there was a relationship of employer and employee. It was pleaded that

the claim petition is an abuse of process of law to extract money and that no documents were filed of an FIR or a police report that in fact an accident

as alleged ever happened. It was pleaded that no accident had taken place and therefore the petition be dismissed.

The Employeeâ€​s Compensation Commissioner framed the following issues:-

“1. Whether claimant sustained injuries during and out of the course of the employment, if so to what amount of injury compensation, claimant is

entitled so?

Relief if any?â€​

Respondent no.1/claimant thereafter led evidence and proved seven documents. This is recorded in sub-para 4 of para 5 of the impugned judgment

and which para reads as under:-

“4. Petitioner Sh. Ashok Kumar filed his statement by way of affidavit exibit AW-1/A. The contents of affidavit are corroborative of those claim

petition. Petitioner has also filed documents exhibit AW-1/1 to AW-1/7 i.e. copy of disability Certificate, copy of police report, copy of insurance

policy of the vehicle, certificate of registration of vehicle, copy of fitness certificate, copy of national permit and medical documents. He was also

cross examined by counsel for petitioner. Petitioner has also filed affidavit of Sh. Bikramjit Singh co-driver as a witness but he was not examined by

the petitioner as such his statement is not considerable.â€​

Employeeâ€s Compensation Commissioner for allowing the claim petition has held that there was a relationship of employer and employee.

Employeeâ€s Compensation Commissioner also held that injuries were caused to the respondent no.1/claimant on account of an accident arising out of

and in the course of employment. The relevant portion of the impugned judgment of the Employeeâ€s Compensation Commissioner holding that the

respondent no.1/claimant was entitled to compensation reads as under:-

“After hearing arguments of the Ld. Counsel for petitioner and respondent no.2 accordingly on the basis of admission of respondent no.1 owner of

vehicle factum of employee and employer relationship, accident caused out of and in course of his employment and not leading any evidence by

respondent no.2 Insurance Company all these evidence and documents are suggestive of the factum of employment and confirm the occurrence of

the accident. The stand taken by the respondent no.1 also confirms the occurrence of the accident out of and during the course of his employment. As

such I hold that petitioner Sh. Ashok Kumar met an accident out of and in the course of his employment. The arguments led by Ld. Counsel for

respondent no.2 that petitioner is not entitled for 100% disability in the light of judgment relied by them. In this case petitioner was co-driver and he

received grievous injuries in arms and legs and on account of this accident his four fingers of right hand were amputated as such he is not able to

perform further work as a driver as such he lost his 100% earning capacity and become 100% disability compensation from respondents, jointly or

severely, in view of this facts of case narrated I am disagree with the view of assessment of board assessing 29% disability of petitioner. The

argument lead by Ld. Counsel for R.2 is not proving his case regarding not entitled 100% disability compensation. As held that petitioner is entitled for

receiving compensation accordingly for calculation of compensation age of petitioner has been taken 26 years on the basis of disability certificate and

relevant factor 215.28 and 60% of last drawn wages of Rs.4377/- (Minimum Wages fixed for skilled category at that time by Delhi Govt.) restricted

by Rs.4000/-. Accordingly compensation is calculated as under:-i) 60% of wages of Rs.4377+2400

ii) Age 26 years and relevant factor 215.28

2400*215.28/100 =Rs.516,672/-

In view of above calculation petitioner is entitled to receive Rs.516,672/- as a injury compensation from respondents jointly or severely.â€​

Learned counsel for the appellant/insurance company has argued that substantial questions of law arise for entertaining this appeal because in terms

of the documents filed by the respondent no.1/claimant it does not at all stand proved that any accident whatsoever had happened when the subject

truck was being driven by the respondent no.1/claimant or that the respondent no.1/claimant was in the subject truck owned by the respondent no.2

herein when the accident happened. It is argued that there is no DD entry or any FIR or any MLC report, and in fact there are no details whatsoever,

as to what is the vehicle with which the subject truck met with an accident or of the subject truck being at all involved in the accident. It is argued that

the substantial question of law arises because no doubt entitlement to arrive at a finding of facts on the basis of evidence on record is of the

Employeeâ€s Compensation Commissioner, however the finding which is arrived at by the Employeeâ€s Compensation Commissioner cannot be a

finding which could not be arrived at from the evidence led by the respondent no.1/claimant on record, and inspite of complete lack of evidence which

a reasonable man can believe yet a finding of accident happening is arrived at, then such perverse finding raises a substantial question of law for

setting aside the impugned judgment.

Learned counsel for the respondent no.1/claimant has in response has placed reliance upon the judgments of the Supreme Court in the cases of

Golla Rajanna and Others Vs. Divisional Manager, United India Insurance Co. Ltd. and another 2017 ACJ 1 and T.S. Shylaja Vs. Oriental Insurance

Co. Ltd. and another 2014 ACJ 480 to argue that this Court should not entertain the appeal under Section 30 of the Act inasmuch as the court of

Employeeâ€s Compensation Commissioner is the final fact finding authority and once findings of facts are arrived at then, this Court should not

entertain the appeal against such findings under Section 30 of the Act. Learned counsel for the respondent no.1/claimant has also placed reliance upon

para 6 of the judgment of the Supreme Court in the case of Machinnon Mackenzie & Co. Pvt. Ltd. Vs. Ibrahim Mahmmod Issak 1969 A.C.J. 422

and which para again states that once findings of facts are arrived at on the basis of the evidence on record, then, the High Court should not interfere.

This para 6 of the judgment in the case of Machinnon Mackenzie (supra) reads as under:-

“6. In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as

well as in the course of employment. But this does not mean that a workman who comes to Court for roll of must necessarily prove it by direct

evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these

essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on

the other hand, he may draw an inference from the proved facts so long as it is a legitimate Inference. It is of course Impossible to lay down any role

as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence mast be such as would Induce a reasonable man to

draw it. Lord Birkenhead, L.C., in Lancaster v. Blackwell Colliery Company, Ltd., observed:

“If the facts which are proved give rise to conflicting inferences of equal degrees; of probability so that the choice between them is a mere matter

of conjecture, then of course, the applicant falls to prove his case, because it is plain that the onus in these 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 more probable conclusion is that for which the applicant contends then the arbitrator is justified in drawing an

inference in his favour.â€​ (underlining added)

Learned counsel for the respondent no.1/claimant has further placed reliance upon a judgment delivered by this Court in the case of Shriram

General Insurance Co. Ltd. Vs. Babu and Anr. in FAO No.361/2013 decided on 19.3.2014 for arguing that there is no requirement of there

compulsory being registered an FIR or a DD entry before it is held that there is an accident which arises out of and in the course of employment. Para

8 of the judgment, which is relied upon, reads as under:-

“8. So far as the first argument that there has to be a DD entry with the police and a MLC report, the argument is totally misconceived because

this is not a medico legal case nor is the case where a police enquiry is required. The simple case is that while affixing the jack to wheel out the

punctured tyre, all of a sudden the jack got de-affixed and as a result of which the vehicle fell down and respondent no. 1 suffered injuries on his legs

and also suffered a crack in his backbone. In such circumstances, it is absurd for an Insurance Company to argue that there has to be a medico legal

case and a report must be registered with the police. After all, in such a case the complaint with the police will be filed against whom inasmuch as it is

not the case that a person has deliberately shifted the jack. This argument is therefore rejected.â€​

10.(i) Finally, counsel for the respondent no.1/claimant has placed reliance upon Regulation 9 of the Insurance Regulatory and Development Authority

(Protection of Policyholders†Interests) Regulations, 2002 ( hereinafter referred to as the IRDA Regulations, 2002) along with the ratio of the

judgment of the Supreme Court in the case of Babbu Miyan and another Vs. New India Assurance Co. Ltd. and another 2017 ACJ 721 to argue that

in the present case the appellant/insurance company ought to have appointed a surveyor and if there was a survey report, then, on the basis of the

survey report, the Court could have come to a finding with respect to the occurrence of the accident. Regulation 9 of IRDA Regulations, 2002 reads

as under:-

“9. Claim procedure in respect of a general insurance policy -(1) An insured or the claimant shall give notice to the insurer of any loss

arising under contract of insurance at the earliest or within such extended time as may be allowed by the insurer. On receipt of such a communication,

a general insurer shall respond immediately and give clear indication to the insured on the procedures that he should follow. In cases where a surveyor

has to be appointed for assessing a loss/claim, it shall be so done within 72 hours of the receipt of intimation from the insured.

(2) Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of

the insured, the insurer or the surveyor as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the

claim. The surveyor shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings

to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special

circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension from

the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.

(3) If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor under intimation to the

insured, to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within

15 days of the receipt of the original survey report.

Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim.

(4) The surveyor on receipt of this communication shall furnish an additional report within three weeks of the date of receipt of communication from

the insurer.

(5) On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of

the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the

policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be.

(6) Upon acceptance of an offer of settlement as stated in sub-regulation

(5) by the insured, the payment of the amount due shall be made within 7 days from the date of acceptance of the offer by the insured. In the cases of

delay in the payment, the insurer shall be liable to pay interest at a rate which is 2% above the bank rate prevalent at the beginning of the financial

year in which the claim is reviewed by it.â€​

(ii) Para 7 of the judgment in the case of Babbu Miyan (supra) which is relied upon reads as under:-

“7. We have heard learned counsel for the parties and gone through the surveyorâ€s report and other evidence on record. It is mentioned in the

surveryorâ€s report, who was appointed by the insurance company, that Ubed, the deceased, was in employment of the owner of truck as a cleaner

and was getting Rs.4,000 as salary. Though the surveyorâ€s report also mentioned that vehicle was sold to someone else but that will not change the

nature of the employment of the deceased. The Commissioner was justified in relying on the report and other evidence to hold that the deceased died

in course of employment.â€​

Before I proceed to decide this case and discuss the issues addressed on behalf of the parties, I would like to note that I have already expressed

my displeasure at the working and passing of illegal judgments by the Employeeâ€s Compensation Commissioners who are functioning under the

Employeeâ€s Compensation Act, and have passed two judgments in this regard. The first judgment was in the case of Oriental Insurance Company

Limited Vs. Baldev Singh & Anr. In FAO No.47/2016 decided on 17.8.2017 and the second judgment was the judgment in the case of Oriental

Insurance Company Limited Vs. Mohd. Anwar & Anr. in FAO No.424/2016 decided on 22.8.2017. In the case of Mohd. Anwar (supra), in view of

gross illegality in the cases being decided by the Employeeâ€s Compensation Commissioner under the Employeeâ€s Compensation Act although no

jurisdiction exists under Section 21(1) of the Act, I have therefore directed that a committee be constituted headed by a retired Judge of this Court to

look into the illegalities committed by the Employeeâ€s Compensation Commissioners in entertaining cases where neither the accident takes place in

Delhi, nor the claimant resides at Delhi and that even the employer is not the resident of or works for gain at Delhi. Paras 16 to 19 of the judgment in

the case of Mohd. Anwar (supra) read as under:-

“16. In the judgment delivered by this Court on 17.8.2017 in FAO No.47/2016 in the case of Oriental Insurance Company Limited Vs. Baldev

Singh and Another, I have set aside the impugned judgment which has been passed by the Employees Compensation Commissioner, and the

Employees Compensation Commissioner in this case is also the same Employees Compensation Commissioner. Even the Advocates who have

appeared for the respondent no.1/claimant in FAO No.47/2016 in this Court as also before the Employees Compensation Commissioner in the said

case, are the same Advocates M/s R.K. Nain & Associates who have appeared for the respondent no.1/claimant before this Employees

Compensation Commissioner in this case. In spite of service of the respondent no.1/claimant for today no one appears for the respondent no.

1/claimant and the reasons for non-appearance of the respondent no.1/claimant are thus not far too seek as to why respondent no.1/claimant is not

represented by his Advocate today in this Court.

While allowing FAO No.47/2016, I had directed drawing out a complaint by the Registrar General of this Court under Section 340 Cr.P.C and

sending the complaint to the competent court of jurisdiction. The relevant para of the judgment dated 17.8.2017 in FAO No.47/2016 is para 18 and this

para 18 reads as under:-

“18. In the facts of the present case I exercise my powers under Section 340 Cr.P.C. and direct the Registrar General of this Court to draw out a

complaint against the fraudulent and collusive claim petition which has been filed by the respondent nos. 1 and 2 herein and in terms of the present

judgment the complaint so drawn be sent to the Competent Court for prosecution of the respondents herein.â€​

I have also directed by para 19 of the judgment dated 17.8.2017 in FAO No.47/2016 that the judgment dated 17.8.2017 be put before the Minister

of Law of GNCTD as also the Law Secretary of the GNCTD and this para 19 reads as under:-

“19. I also direct that a copy of this judgment along with the impugned judgment of the Employees Compensation Commissioner dated 27.11.2015

be sent to the Minister of Law, Government of National Capital Territory of Delhi (GNCTD), as also the Law Secretary, GNCTD, to show as to how

certain Employees Compensation Commissioners appointed by GNCTD are acting in a complete perverse fashion and allowing completely

undeserving claim petitions which are in fact the result of collusion and an endeavor to defraud the insurance companies of their moneys. On receipt

of the judgment by the Law Minister as also by the Law Secretary of GNCTD, an affidavit shall be filed on behalf of these persons by authorized

persons that the relevant departments have taken note of the present judgment as also of the concerned Employees Compensation Commissioner who

in the present case has completely and most illegally and perversely allowed a totally undeserving claim petition. Affidavit in this regard be filed within

a period of six weeks from today.â€​

While allowing this appeal I pass the same directions in this case as per paras 18 and 19 of the judgment dated 17.8.2017 in FAO No. 47/2016

except that the complaint which will be made in this case will only be against the respondent no.1/claimant in this case. In fact on account of the

arguments urged on behalf of the appellant/insurance company that it is high time that for preventing further frauds upon the insurance companies, that

an Enquiry Committee be constituted, I direct that a one person Enquiry Committee be constituted by the GNCTD to look into the judgments which

are passed by any and every Employee Compensation Commissioner for the last three years in which the Advocates for the claimants are the

Advocates M/s R.K. Nain and Associates and where as per the claim petition and/or defence the Employees Compensation Commissioners at Delhi

would have no territorial jurisdiction on application of Section 21(1) of the Employees Compensation Act. Enquiry Committee be headed by a retired

Judge/ retired Chief Justice of this Court and who would be nominated by the competent authority in the GNCTD within four weeks from today.

Enquiry Committee will have extensive jurisdiction to examine if any offence has been committed by any person as per laws applicable. The Enquiry

Committee will have powers to call for all necessary documents from any and every person in order to determine the issue as to whether any fraud,

cheating, mis-appropriation etc etc or any other offence(s) have been committed by any person(s). The GNCTD is also requested that it should co-

operate with the Enquiry Committee so that the Enquiry Committee should give its report as expeditiously as possible and preferably within six months

of the constitution of the Enquiry Committee. Remuneration of the Enquiry Committee be fixed by the GNCTD in consultation with the retired

Judge/Chief Justice who will be appointed as the one person committee. If the Enquiry Committee of the retired Judge/Chief Justice of this Court

comes to a finding of existence of culpability of any person with respect to any offence which is committed, then, necessary action will be taken by

the GNCTD against all such persons in accordance with law and within a period of six weeks of the report being submitted by the Enquiry

Committee.â€​

I have made the aforesaid observations because this Court also intends to pass very strict directions in the facts of the present case and as are

given hereinafter. Let me now turn to the issues which are involved in the present case.

There are two issues which arise in the present case. One is as to whether accident at all happened of the respondent no.1/claimant as alleged by

him in the claim petition and that as to whether the accident happened out of and in the course of employment. The second issue is as to whether

there was a relationship of employer and employee between the respondent no.2 herein and the respondent no.1/claimant.

As regards the second issue of existence of relationship of employer and employee, I have already held in various judgments that in this country it

is not practical to expect written contracts of employment as between the individual employers of private vehicles and the employees of such vehicles

who work as drivers or cleaners or co-drivers. Once it is established by leading evidence on record that the employee was driving the vehicle of the

owner then ordinarily the Courts can hold that there was a relationship of employer and employee because there is no reason why the employee is

found to be driving the vehicle belonging to a third person when the accident is caused except on account of employment. Therefore, in my opinion, to

the extent that there is a relationship of employer and employee between the respondent no.2 and the respondent no.1 herein, this Court cannot upset

the findings of facts of the Employeeâ€​s Compensation Commissioner as arrived at in the impugned judgment dated 15.6.2015.

The other issue is that whether at all an accident took place as alleged in the claim petition on 14.11.2009. In this regard, in my opinion, a

substantial question of law arises because one thing is that two views are possible out of the evidence which has come on record and the

Employeeâ€s Compensation Commissioner takes one possible and plausible view including by inferences which arise from proved facts and in which

situation no substantial question of law arises because the Employeeâ€s Compensation Commissioner is entitled to take one possible and plausible

view from the facts proved on record. However, when from the evidence led only one conclusion can be arrived at but the Employeeâ€s

Compensation Commissioner instead reaches a totally different conclusion which no reasonable person can arrive at, then, there is a clear perversity

in the finding and which results in arising of a substantial question of law vide the ratio of Machinnon Mackenzie’s case (supra).

16.(i) Let us therefore examine the evidence in this case and the facts of the present case as to whether the Employeeâ€s Compensation

Commissioner could have at all arrive at a finding that an accident took place on 14.11.2009 with respect to truck bearing no.HR-38M-8225 with

another vehicle and which resulted in injuries to the respondent no.1/claimant.

(ii) In this regard it is seen that admittedly there is no FIR or a DD entry or an MLC report that the accident happened as is pleaded by the respondent

no.1/claimant. After all when there is a head on collision between two vehicles and serious injuries are caused to a person, such as the respondent

no.1/claimant as alleged in the claim petition, then this Court refuses to believe that an FIR would not have been lodged. After all the respondent

no.1/claimant pleaded that accident was so severe that it took two hours for cutting the steering and then extricating the respondent no.1/claimant

from the said truck. It was pleaded in the claim petition that legs and arms of the respondent no.1/claimant were crushed and the respondent

no.1/claimant besides suffering injuries to his ankle also had his teeth broken.

(iii) Even if an FIR was not registered then surely at least a DD entry with respect to the alleged accident would have been recorded.

(iv) Even for the sake of argument I take that there is no FIR or DD entry or MLC, then surely with respect to the injuries which are alleged a report

of the hospital and prescriptions of the hospital and various documents of the hospital ought to have been proved showing that such injuries as pleaded

were caused, however it is seen that the only documents which are filed by the respondent no.1/claimant are a disability certificate, copy of the

“police report†(what is report is commented upon immediately), insurance policy and some slips of some unknown treatment at two hospitals, one

at Allahabad and the other at Jalandhar and which slips make no mention of the accident or the type of injuries as alleged by the respondent

no.1/claimant in the claim petition. In fact the documents being two passes filed of the Nehru Chikitsalaya, Allahabad are only that the respondent

no.1/claimant is described as a “rogi/patient†without in any manner these passes at all describing the injuries or the treatment etc etc. So far as

the slips of paper of the Sacred Heart Hospital at Jalandhar is concerned, it is seen that they are only prescriptions of some medicines including one

slip which is not on the letter head of the hospital referring to a particular X-ray of the right leg and right ankle. And most surprisingly it is noted that

the disability certificate filed in this case has nothing to do with any injuries to the legs of the respondent no.1/claimant because the disability certificate

proved as Ex.AW1/1 talks of disability because of the right upper limb i.e not of any injury to the legs or fracture to the legs of the respondent

no.1/claimant.

(v) So far as the “police report†is concerned, let us understand what this “police report†is and which is filed by the respondent no.1/claimant

as document Ex.AW1/2. This document Ex.AW1/2 is an undated document containing three lines in hand in Hindi language on a blank sheet of paper

and all that it contains in the three lines is that there is an accident involving HR-38M-8225 and that the concerned parties will sort out the matter. This

Court really fails to understand as to how this so called “police report†can at all be called as a police report. In fact, the stamp of the police

station is almost completely illegible and this Court cannot even read the same and nor can anyone also read as to this report is given by which police

station, being signed by which person and having what designation. In order to appreciate the total lack of credibility and lack of genuineness of this

“police reportâ€​ Ex.AW1/2 I scan and reproduce the same as under:-

(vi) It is therefore seen that the case for compensation filed by the respondent no.1/claimant is clearly and only a fraudulent case. The Employeeâ€s

Compensation Commissioner legally could not have arrived at a finding that an accident took place of the subject truck on 14.11.2009 on the basis of

the so called three lines imaginary police report which is in fact not a police report. Even the medical documents are of no value because two medical

documents are only passes of entry to a chikitsalaya/hospital at Allahabad calling the respondent no.1/claimant as a patient without giving any details

of any injuries or treatment, and the three medical documents of the Sacred Heart Hospital Jalandhar are only prescriptions of some medicines without

at all stating the injuries or the nature of the treatment. One slip of paper alleged to be of the Sacred Heart Hospital is a slip of paper which is not on

any letter head of the hospital and which talks of injuries to the right leg and right ankle of the respondent no.1/claimant and these injuries are not even

injuries of the respondent no.1/claimant as per the disability certificate filed for seeking compensation under the subject claim petition.

(vii) All in all there is a complete lack of credibility and there exist irreconcilable contradictions in the case pleaded by the respondent no.1/claimant

and the evidence which has come on record. The main contradiction is that in the claim petition it was pleaded that legs and arms were crushed and

teeth were broken but there is no evidence whatsoever on record before the Employeeâ€s Compensation Commissioner of the legs and arms being

crushed or the teeth being broken, and, as already stated above, the disability certificate makes no reference to any injuries to the legs of the

respondent no.1/claimant or any fracture or any crushing of the legs and the disability certificate only talks of the injuries to the right upper limb and

headache caused to the respondent no.1/claimant. In my opinion therefore on the basis of the documents Ex.AW1/1 to Ex.AW1/7B, no reasonable

person, much less the Employeeâ€s Compensation Commissioner acting under the Employeeâ€s Compensation Act, could at all have arrived at a

finding that there was an accident of the subject truck which was allegedly driven by the respondent no.1/claimant and that injuries were caused to the

respondent no.1/claimant as pleaded and contended by the respondent no.1/claimant. To complete the narration, I am kjscanning below the so called

medical documents filed by the respondent no.1/claimant as Ex.AW1/7, 7A and 7B:-

17.(i) Learned counsel for the respondent no.1/claimant argued that once the employer has admitted to the relationship of employer and employee and

the factum of accident, the Employeeâ€s Compensation Commissioner was entitled to arrive at a finding that there was an accident and this Court

should not interfere because no substantial question of law arises under Section 30 of the Act.

(ii) In my opinion, this argument is wholly misconceived because if this argument is accepted, then, even where this Court finds that grave frauds are

being perpetrated and totally false claim petitions are filed and the Employeeâ€s Compensation Commissioner has decided such cases on the basis of

evidence which no reasonable person can believe, then, this Court would be required to hold that no substantial question of law arises simply because

an employer “admits†everything. After all an “admission†is only one aspect which has to be examined with all other evidence which has

come on record, and further that a Court is entitled to always examine the weight which ought to be given to a convenient “admissionâ€​.

(iii) The contention of the counsel for the respondent no.1/claimant as argued before this Court that this Court must record the entitlement of the

respondent no.1/claimant at least against the owner of the vehicle, is an argument in my opinion a very desperate attempt to create some sort of case

because there is no appeal which is filed by the respondent no.1/claimant against the impugned judgment, and this Court is not called upon to

adjudicate any appeal against a judgment only holding the insurance company/indemnifier to be liable but not holding the owner of the vehicle liable. I

fail to understand whether at all this argument of the respondent no.1/claimant can have any meaning because if the Employeeâ€s Compensation

Commissioner by the impugned judgment only imposed liability upon the appellant/insurance company and has not imposed any liability upon the

owner/respondent no.2 herein then why did not the respondent no.1/claimant file an appeal against the impugned judgment. In law the liability of the

insurance company is as a substitutee of the liability of the owner and on account of the indemnifying by the insurance company of the owner of the

vehicle who has taken an insurance policy and there is an implicit finding by the impugned judgment of the liability of the owner/respondent no.2 and it

is only for that reason that the insurance company is held to be liable because actual payments will have to be made by the appellant/insurance

company on account of the insurance policy issued by it.

Reliance placed by the counsel for the respondent no.1/claimant upon the observations made by this Court in the case of Shriram General

Insurance (supra) that there is no FIR required and yet the court can hold that an accident took place arising out of and in the course of employment is

an argument which has to be rejected because in the facts in Shriram General Insurance’s case (supra) it was held that there is no requirement of

any FIR or DD entry as there was no head on collision between two vehicles and the only accident which is referred to in the case of Shriram

General Insurance (supra) to have occasioned is that at the time of affixing of jack to the vehicle the jack got de-fixed resulting in falling of the vehicle

and suffering of injuries to the employee and therefore obviously in such a case it is not expected that there should be an FIR lodged or even a DD

entry filed. Argument of the respondent no.1/claimant by placing reliance upon the judgment in the case of Shriram General Insurance (supra) is

therefore rejected.

So far as reliance placed by the counsel for the respondent no.1/claimant upon the judgment in the case of Mackinnon Mackenzie (supra) is

concerned, in fact the para which is relied upon in the case of Mackinnon Mackenzie (supra), and already reproduced above, goes against the

respondent no.1/claimant because it is seen that in para 6 the Supreme Court has observed that an inference can be arrived at only if facts are

established before the Employeeâ€s Compensation Commissioner from which inference can be drawn. Supreme Court has further clarified that

inference can be drawn only from proved facts and that also only when it is a legitimate inference. Of course, when is a fact proved and when is an

inference to be drawn has to necessarily depend on the facts of each case but the Supreme Court has clearly clarified that evidence must be such as

would induce a reasonable man to draw the inference. Supreme Court has additionally clarified that if two views are possible of two equal degrees

and there is a probability of choice out of the two views, then, taking of one probable view will not be taken as an illegal or incorrect conclusion. I have

already in this regard observed above that if the Employeeâ€s Compensation Commissioner takes one possible and plausible view, then, no substantial

question of law arises but surely a substantial question of law does arise when the findings are completely perverse and such findings and conclusions

as arrived are those which no reasonable man could have arrived at in the facts of the present case.

20.(i) The next argument which is urged on behalf the respondent no.1/claimant is by placing reliance upon Regulation 9 of IRDA Regulations, 2002

and the observations of the Supreme Court in the case of Babbu Miyan (supra). Even this argument in my opinion is completely without substance for

various reasons.

(ii) Firstly, the appellant/insurance company in this case would have come to the picture at the time of the accident for appointment of the surveyor to

make his report only if the appellant/insurance company was notified or informed in the first place. There is no evidence worth anything on record of

the Employeeâ€s Compensation Commissioner that the appellant/insurance company was ever informed either by the respondent no.1/claimant or by

the owner/respondent no.2. Learned counsel for the respondent no.1/claimant before this Court during the course of arguments has argued that an

oral intimation was given, but clearly once again this argument of the oral intimation is nothing but only a desperation which has to be rejected because

it is not even the pleading of the respondent no.1/claimant that there was oral intimation and even if this case of oral intimation was pleaded and

deposed to no reasonable person/court can believe and accept the same as discharge of onus of proof. Therefore I hold that the appellant/insurance

company having not been informed, had no occasion in the facts of the present case to appoint any person for making a survey report.

(iii) Secondly, not only that no intimation was given to the appellant/insurance company, even a cursory reading of the Regulation 9 of the IRDA

Regulations, 2002 shows that there is no necessary mandate on the insurance company that it has to appoint a surveyor in all cases. This becomes

clear from the expression “in cases where a surveyor has to be appointed†i.e meaning thereby that an insurance company has first to be

convinced as also notified that there did take place really an accident. In fact the expression “in cases where a surveyor has to be appointed†is

preceded by expression of the notices being given to the insurer of the loss arising under the contract of insurance at the earliest and admittedly, as

discussed above, there is no evidence at all on record of any intimation of either the accident or loss caused, either by the respondent no.1/claimant or

by the respondent no.2/owner, to the appellant/insurance company. I therefore reject the argument urged on behalf of the respondent no.1/claimant by

placing reliance upon Regulation 9 of the IRDA Regulations, 2002 and the judgment of the Supreme Court in the case of Babbu Miyan (supra). I may

note that in the case of Babbu Miyan (supra) there is only a general observation in para 7 that the survey report when filed can be used to arrive at a

conclusion of existence of relationship of employer and employee and in the present case this Court has already held that there is a relationship of

employer and employee but the real issue is that whether an accident happened or did not happen arising out of and in the course of employment as is

alleged by the respondent no.1/claimant.

One final aspect which has to be noted in this case is that although there is no issue raised by the appellant/insurance company as to the territorial

jurisdiction however this Court is consistently receiving appeals with respect to the accidents which happened beyond Delhi, claimants do not reside in

Delhi, the employer does not reside or carry out business at Delhi, and thus the requirements are not fulfilled with respect to the existence of

jurisdiction of Employeeâ€s Compensation Commissioners at Delhi as required under Section 21(1) of the Act, yet the Employeeâ€s Compensation

Commissioners are entertaining petitions and passing judgments awarding compensations. This is also an aspect which must be looked at by the

committee appointed as per Mohd. Anwar’s case (supra).

(ii) I may note that the present counsel for the respondent no.1/claimant was also the counsel for the claimant in the judgment delivered in the case of

Baldev Singh (supra), has argued that Employeeâ€s Compensation Commissioners at Delhi have territorial jurisdiction in the view of the judgment of

the Supreme Court in the case of Malati Sardar Vs. National Insurance Co. Ltd. and others 2016 ACJ 542. It is argued that the judgment in the case

of Malati Sardar (supra) passed under the Motor Vehicles Act should be read even for Section 21 of the Employeeâ€​s Compensation Act because the

provision of Section 166 of the Motor Vehicles Act with respect to territorial jurisdiction is more or less similar to the provision of Section 21 of the

Employeeâ€s Compensation Act. It was argued that in the case of Malati Sardar (supra) though the accident happened in Hooghly in West Bengal,

and where the insurance policy was also issued by the branch office at Hooghly but the claim petition under the Motor Vehicles Act was held could

be entertained by the Tribunal at Calcutta, and which position has been allowed by the Supreme Court because there was a registered office of the

insurance company at Calcutta where the MACT case was filed.

(iii) In my respectful opinion the judgment in the case of Malati Sardar (supra) was passed under the Motor Vehicles Act in the peculiar facts of that

case whereby the courts sought to avoid harassment to the claimant only on account of territorial jurisdiction. It is also required to be noted that the

judgment in the case of Malati Sardar (supra) is a judgment delivered by a Division Bench of two Judges of the Supreme Court but there is an earlier

binding judgment of Division Bench of three Judges of the Supreme Court in the case of Patel Roadways Limited, Bombay vs. Prasad Trading

Company (1991) 4 SCC 270 and which holds that merely because a registered office of a company is situated at a place where a case is filed will not

give jurisdiction if the cause of action has arisen within the jurisdiction of a branch office of the company and then only at the court where the branch

office is situated that the case can be filed i.e the place of the principal office or head office cannot be the basis for creating territorial jurisdiction once

there is subordinate office/branch office at a place where the cause of action has arisen. The Division Bench judgment of three Judges of the

Supreme Court in the case of Patel Roadways Limited, Bombay (supra) has not been referred to in this judgment of Division Bench of two judges of

the Supreme Court in the case of Malati Sardar (supra). I however do not have to observe anything further inasmuch as the issue of territorial

jurisdiction does not arise as for some reason it has not been contended by the appellant/insurance company.

In the earlier part of this judgment I have referred to the judgments delivered by this Court in the cases of Baldev Singh (supra) and Mohd. Anwar

(supra). In my opinion the committee which is to be appointed of a retired Judge of this Court in terms of Mohd. Anwar’s case (supra), this

committee should also be directed to consider the impugned judgment passed by Sh. S.C. Yadav, Employeeâ€s Compensation Commissioner in this

case which is dated 15.6.2015 and copy of this judgment and the judgment dated 15.6.2015 be placed by the Government of NCT of Delhi before the

committee as will be constituted in terms of the directions in the case of Mohd. Anwar (supra) so that the committee is made aware of gross

illegalities of the Employeeâ€s Compensation Commissioners in allowing compensation cases resulting in defrauding of crores of rupees of the

insurance companies. Copy of the present judgment along with copy of the judgment of Employeeâ€s Compensation Commissioner dated 15.6.2015

be sent to the Law Secretary of the Government of NCT of Delhi.

23.(i) Accordingly, this appeal is allowed. Impugned judgment of the Employeeâ€s Compensation Commissioner dated 15.6.2015 is set aside. Since

the respondent no.1/claimant has already received the amount of compensation as directed by the impugned judgment of the Employeeâ€s

Compensation Commissioner, the appellant/insurance company will be at liberty to recover the same from the respondent no.1/claimant, in accordance

with law, including by filing an application for restitution before the concerned Employeeâ€​s Compensation Commissioner.

(ii) While allowing this appeal, this Court also directs the Registrar General of this Court to draw out a complaint under Section 340 Cr.P.C. read with

Section 209 of the Indian Penal Code against the respondent no.1 herein and the claimant before the Employeeâ€s Compensation Commissioner for

filing the false case and filing of false cases being an offence under Section 209 IPC and this complaint be sent to the competent court/authority for

proceeding with the same in accordance with law. Necessary action be taken by the Registrar General as expeditiously as possible.