Dismissed

M/S Vichitra Construction Pvt. Ltd. v. Jai Veer Singh and 4 Others

Allahabad HC25 Feb 2020FAFOD/1503/2018

Case brief

AI extract

What is this about?

This is an appeal against an award under the Employees Compensation Act, 1923 regarding a driver's death. The appellant challenged the Presiding Officer's qualifications, the onus of proving employment connection, and the right to recover from the insurer. The court dismissed the appeal for lack of merit and absence of evidence supporting the appellant's grounds.

What did the court decide?

The appeal is dismissed for want of merit and failure to substantiate grounds.

M/S Vichitra Construction Pvt. Ltd. Vs Jai… — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 53

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Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1503 of 2018

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Appellant :- M/S Vichitra Construction Pvt. Ltd. Respondent :- Jai Veer Singh And 4 Others Counsel for Appellant :- Vinayak Mithal Counsel for Respondent :- Amit Manohar,Satish Kumar Tyagi

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Hon'ble Vivek Agarwal,J.

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Heard Sri Vinayak Mithal, learned counsel for the appellant and Sri Amit Manohar, learned counsel for the respondent no. 3.

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Order on Civil Misc. Delay Condonation Application No. 1 of 2018

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There is delay of 245 days in filing this appeal.

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For the reasons stated in the application, delay in filing the appeal is condoned.

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Accordingly, application is allowed.

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Order on Appeal

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As per office report, though respondent nos. 1 and 2 are represented through counsel but nobody is appearing for respondent nos. 1 and 2.

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In regard to respondent nos. 4 and 5, office note dated 24.02.2020 makes a mention that neither undelivered cover nor any acknowledgment has been returned after service and also no one has put in appearance.

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In view of such fact, service on respondent nos. 4 and 5 is deemed complete.

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As nobody is appearing for respondent nos. 1 and 2 so also respondent nos. 4 and 5, they are proceeded ex-parte.

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This appeal has been filed by the owner-appellant being aggrieved by the award dated 25.05.2017 passed by the learned Commissioner under Employees Compensation Act, 1923 in W.C.A. No. 183 of 2010. It is the case of the appellant that the Presiding Officer was not qualified to pass an award in terms of the provisions contained in Section 20 of the Employees Compensation Act, 1923. It is submitted that though the designated officer holding the post was a Gazetted Officer, but

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there is no disclosure as to whether the Presiding Officer was having educational qualification and experience in personal management, human resource development and industrial relations as has been inserted in Section 20 vide Amendment Act No. 45 of 2009 which came into effect from 18.01.2010.

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It is further submitted that though deceased was an employee, but onus was on the claimants to prove that accident took place when vehicle was being driven during the course of the employment. Drawing attention of this Court to para- 4 and 5 of the written statement, it is submitted that in fact, it was the claimants who were required to prove this fact and not the appellant-employer, therefore, the award suffers from infirmity. It is further submitted that insurance company has been exonerated and no right to recovery has been bestowed in favour of the employer despite the fact that employer had specifically pleaded that at the time of employment, he had verified the license and even if it was subsequently found that the deceased was not having valid driving license to drive a vehicle then also right to recovery from the insurance company should have been given in favour of the appellant-owner of the vehicle.

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At this stage, it is submitted that license was not valid could not be proved by the officer of the insurance company. At the same time, there is no material on record to substantiate that on the date of the accident i.e., 03.07.2010, driver was having a valid license so to shift the burden from the owner to the insurer.

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Sri Amit Manohar supports the award.

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After hearing arguments and going through the record, it is apparent that there is no material brought on record by learned counsel for the appellant to substantiate the first ground raised by him as to non-fulfillment of educational qualifications by the Presiding Officer, who acted as a Commissioner Workmen's Compensation Act, 1923 while passing the impugned award. If a ground is raised by a party, then that party is required to substantiate that ground through cogent and necessary evidence. For the failure of the appellant to substantiate such ground, first ground stands not proved.

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As far as plea of right of recovery and onus on the claimants to prove that the accident took place during the course of the employment are concerned, in fact, it was on the employer in a case under beneficial legislation to have proved that the accident had not taken place during the course of the employment and the vehicle was being used unauthorizedly by the deceased driver. No such onus has been discharged by the

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employer as is evident from the material available on record and therefore, this ground too is not made out.

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As far as right of recovery from the insurance company is concerned, when there is a fundamental breach, noticed by learned Commissioner for Workmen's Compensation and has recorded a finding that the driver was not having a valid driving license, then the reverse is true that qua-claimants Workmen's Commissioner could have directed the insurance company to pay and recover it from the owner, but vice-versa is not proved that owner of the vehicle will pay and then is given a right to recover from the insurance company. Therefore, this ground is also not sustainable in the eyes of law and therefore, appeal being devoid of merits, deserves to be dismissed and is dismissed.

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At this stage, Sri Satish Kumar Tyagi appears and prays for marking his presence.

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Order Date :- 25.2.2020 Ashutosh/Vikram/-

M/S Vichitra Construction Pvt. Ltd. v. Jai Veer Singh and 4 Others

Case brief

What is this about?

What did the court decide?

M/S Vichitra Construction Pvt. Ltd. v. Jai Veer Singh and 4 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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