Dismissed

United India Insurance Company Limited v. Smt. Suman and 3 Others

Allahabad HC14 Feb 2020FAFO/2445/2018

Case brief

AI extract

What is this about?

The single judge dismissed the appeal filed by the Insurance Company against an award granting compensation. The court held that the admission by the employer that the deceased was an employee is substantive evidence under Sections 20 and 21 of the Evidence Act. Since the appellant failed to move an application to call the employer for cross-examination, they cannot take advantage of their own neg

What did the court decide?

The appeal filed by the Insurance Company is dismissed and the award in favor of respondents is affirmed.

United India Insurance Company Limited Vs… — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 53

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Case :- FIRST APPEAL FROM ORDER No. - 2445 of 2018

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Appellant :- United India Insurance Company Limited Respondent :- Smt. Suman And 3 Others Counsel for Appellant :- Vipul Kumar Counsel for Respondent :- Mahendra Kumar Yadav,Ajeet Kumar,Awadh Bihari Pandey,Mahendra Kumar Yadav

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Hon'ble Vivek Agarwal,J.

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Heard Sri Vipul Kumar, learned counsel for the appellantUnited India Insurance Company Ltd (for short the Insurance Company) and Sri Mahendra Kumar Yadav, learned counsel for the respondent.

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This appeal has been filed under the provisions of Employees' Compensation Act, 1923 (for short 'the Act') being aggrieved by impugned judgment and award dated 20.3.2018 passed by the Commissioner, Employees' Compensation/ Dy. Labour Commissioner, Bareilly Region, Bareilly (for short Commissioner) in Employees Compensation Case No. 17/EC A/2016 (Smt. Suman and others Vs. United India Insurance Company and another).

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This appeal was admitted by a Division Bench of this Court vide order dated 23.5.2018 whereby substantial question of law which has been framed at the time of the admission is as under:-

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"Whether the admission of the owner of the vehicle in the written statement that the deceased was employed as a cleaner is sufficient to hold the existence of relationship of employer and employee when no opportunity in this regard was given to the appellant – Insurance Company to cross-examine the owner of the vehicle?"

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Counsel for the appellant submits that no opportunity of hearing was afforded to them to justify the statement made by the employer as deceased was employed as cleaner and, therefore, the award passed by the Commissioner deserves to be set aside.

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As per provisions contained in Section 2 (dd), definition of employee is as under:

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"employee" means a person, who is--

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(i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II; or

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(ii) (a) a master, seaman or other members of the crew of a ship,

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(b) a captain or other member of the crew of an aircraft,

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(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India; or

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(iii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to any employee who has been injured shall, where the employee is dead, include a reference to his dependants or any of them;

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2(e) : "employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a 26[employee] are temporarily lent or let on hire to another person by the person with whom the 26[employee] has entered into a contract of service or apprenticeship, means such other person while the 26[employee] is working for him;

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In section 3 of the Act, it is provided that if personal injuries are caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter. In the present case, once the deceased employee has been admitted to be employed by the employer and it has come on record that he was going to call for a Mistri when he met with an accident then it cannot be said that there was no casual connection between accident and employment depriving the claimant to claim compensation.

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In the case of Kalyani ji Vs. Divisinal Manager, Southern Railway (Personal Branch), Divisional Office, Madras as reported in 2004 LLR – 207 (Madras HC) SC , it has been held that "in order to attack sub section (1) of Section 3, three conditions must be fulfilled (a) personal injury; (b) accident; and (c) arising out of and in the course of employment.

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In the case of Oriental Insurance Company Ltd. Vs. Nangul Singh as reported in 1995 LLJ HC Orissa 298, it has been held that "the expression of arising out of employment" means that there must be casual relationship between accident and the employment. If the accident has occurred on account of the risk which is an incident of the employment, then this is to be held that the accident has arisen out of the employment.

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Section 23 of the Act deals with powers and procedure of the Commissioner and provides that Commissioner shall have the powers to the Civil Court under the Code of Civil Procedure, 1908 for the purpose of taking evidence on oath and to enforce the attendance of witness and compelling of production of document and objection and material objection and the Commissioner shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of C.P.C, 1973. Section 25 deals with method of recording evidence. In the present case, it is evident that there is admission of the employer as to the factum of employment of the deceased. No application was ever moved by the Insurance Company to call the employer as a witness or to examine him. Insurance Company only examined one Doctor Sri M.Q. Ansari as DW-1.

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In view of such facts that when there is an admission by the employer, Insurance Company if so doubting the admission than onus was on the Insurance Company to have moved an application to call for the employer in the witness box. Now, there is no provision for overlooking the admission of the contesting party who is to be indemnified by the Insurance Company. In fact, it is the employer who is t he person responsible to accept or deny the factum of employment and whether the accident took place during course of the employment or not, and which is admitted by the counsel for the Insurance Company that no application was moved by the Insurance Company to call the employer in the witness box; nor it examined its Surveyor/Investigator to dispute the factum of employment and accident taking place during the course of the employment.

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In fact, as per provision contained in Section 10 of the Act, there was already a notice of the accident and, therefore, the Commissioner entertained the Claim case. Once there was notice of the accident then the party having dominant stature cannot be allowed to take advantage of subservient status of

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claimant. Accordingly, the substantial question of law framed in this case is answered against Insurance Company holding that though it is for its own failure to call the employer in witness box, Insurance Company cannot take advantage of its own failure and, therefore, once there was an admission on the part of the employer then such admission could not be brushed aside by the Insurance Company. In fact admission of the employer is a substantive piece of evidence under the Evidence Act, in view of provisions contained in section 20 and 21 of the Evidence Act. Therefore, the appeal fails and it is dismissed.

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Order Date :- 14.2.2020 S.K.S.

United India Insurance Company Limited v. Smt. Suman and 3 Others

Case brief

What is this about?

What did the court decide?

United India Insurance Company Limited v. Smt. Suman and 3 Others

Case brief

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