The scope of appeal under Section 30 of the Employees' Compensation Act is limited to substantial questions of law, and material issues in a claim petition must be proved with evidence.

JUDGMENT

Manoj Kumar Ohri, J.

1. By way of present appeal filed under Section 30 of the Employees' Compensation Act, 1923 (hereinafter, referred to as the 'EC Act'), the appellant (proprietor of M/s Nirala Promoters and Developers) has assailed order dated 23.10.2017 passed in Case No.CWC- I/WD/20/2015/618-619 and rectified on 05.03.2018 by learned Commissioner, Employees' Compensation, District West, Delhi, whereby claim petition filed by respondent No.1 was allowed.

2. The facts, in nutshell, are that respondent No.1/claimant claimed to be in employment of M/s Nirala Promoters and Developers as a Pizza Delivery Boy on bike bearing registration No. DL-9-SAA-8014, since 6 months preceding the filing of the claim petition. On 30.10.2014, while he was going on the aforesaid bike at about 07:20 pm to deliver a cake from "Slice of Italy" to a flat in Connaught Place, a car came from behind and hit him, leading to a fracture in his right leg.

It was claimed that as a result of the accident, respondent No.1 had become 100% disabled for the purpose of employment as a Pizza Delivery Boy. His last drawn wages were stated to be Rs.9,000/- per month. It was further claimed that the bike was insured with respondent No.2 and additional premium was charged from the employer.

3. Learned counsel for the appellant has contended that respondent No.1 failed to establish that any accident took place on 30.10.2014. It is also contended that the learned Commissioner ought not to have entertained the claim petition as prior notice under Section 10 of the EC Act was not given.

4. Learned counsel for respondent No.1, on the other hand, has supported the impugned order.

5. I have heard learned counsels for the parties and perused the material placed on record.

6. It is noted that during the proceedings before the learned Commissioner, respondent No.1 produced medical documents in support of the claim as well as examined one Sunil Kumar Yadav, a co-worker, as AW-2.

7. A reading of the medical documents would show that respondent No.1 was admitted in Lady Hardinge Medical College on 30.10.2014 and discharged from the hospital on 15.11.2014.

In his testimony, AW-2-Sunil Kumar Yadav, a co-worker, deposed that he knew respondent No.1 as he worked with M/s Slice of Italy at the time of the accident. He further deposed that respondent No.1 was employed with M/s Slice of Italy as a delivery boy, and on 30.10.2014, had gone to deliver a pizza in Connaught Place. On that day, while respondent No.1 was driving the aforementioned bike, he was hit by some other vehicle resulting in injury in his right leg. A call was received in the office of M/s Slice of Italy from a public person at about 07:00 pm informing about the incident, wherefore the witness proceeded towards the place of accident. He denied the suggestion that no accident took place out of or during the course of employment with M/s Slice of Italy or that he and respondent No.1 were not employed with M/s Slice of Italy.

8. In the written statement filed by the appellant, though the factum of accident taking place was denied, it was admitted that respondent No.1 was employed with the appellant/his firm. It was further stated that M/s Nirala Promoters and Developers was a franchise of M/s Slice of Italy. It was also admitted that the aforesaid bike was owned by the appellant, that it was insured with respondent No.2 and that additional premium was paid.

9. So far as the appellant's contention that prior notice under Section 10 of the EC Act was not given, suffice it to note that though the appellant filed a written statement, he failed to either cross-examine respondent No.1 or lead his own evidence. Even in the written statement, no such objection was taken.

Moreover, it has come in the testimony of AW-2-Sunil Kumar Yadav that a phone call was received in the office of M/s Slice of Italy on the date of the accident, pursuant to which he alongwith others had gone to the spot of accident and taken respo