IMPORTANT POINT
The murder of an employee during the course of performance of his duties would entitle the legal heirs to seek a claim under the Employee Compensation Act.

JUDGMENT

Dharmesh Sharma, J. - This appeal is filed by the appellant under Section 30 of the Employee Compensation Act, 1923[The E.C. Act.] assailing the impugned order dated 30.11.2015 passed by Labour Commissioner, Vishwakarma Nagar, Jhilmil Colony, Delhi- 110095, in claim petition No. CWC-D/NE/02/2013/40 dated 21.01.2013 filed by the claimant / appellant, wherein, the claim petition was dismissed.

FACTUAL BACKGROUND

2. To put it succinctly, the claimant, i.e., the appellant before this Court, is the wife of the deceased Brij Kishore Gupta @ Brij Kishore Sah. He died on 25.12.2012 at the age of 38 years, while plying vehicle i.e., TSR bearing No. DL-lRF-0941. The claim petition was based on the premise that the deceased was an employee of Sh. Shri Om i.e., respondent No.1, drawing a monthly salary of Rs. 10,000/-and died in the course of the employment. His legal heirs being solely dependent on his earnings, prayed for compensation according to the provisions under the Act.

3. The impugned order, while encapsulating the events, noted the submission of claimant/appellant that on 25.02.2012 at about 10.00 P.M. the deceased was murdered while on duty on said vehicle during the course of his employment with respondent No. l. It was also stated that the accident was registered in P.S. Karawal Nagar, Delhi vide FIR No. 509/2012 dated 27.12.2012 under Section 302/34 Indian Penal Code, 1860, and the post-mortem of the deceased was conducted in GTB Hospital, Delhi.

4. In the ensuing proceedings, respondent No. l submitted that the deceased was never his employee and that he never paid any wages to him. He further stated that the vehicle even though was owned by, respondent No. l, it was driven by both him and the deceased on a sharing basis. On the night of the accident, the deceased had taken the auto rickshaw for only a night at around 10:00 P.M. in order to take his relatives from Anand Vihar Railway Station.

5. Respondent No. 2 i.e., M/s Bajaj Allianz General Insurance Company Ltd., also towed the same line of defence for denial of claim submitting that they are not liable to pay any compensation to the petitioners (appellants herein) as deceased Brij Kishore Gupta @ Brij Kishore Sah was not an employee of the R-1 and was not the employee, within the provision of Sec. 2(1)(n) of the Act.

6. Thus, the following issues were framed for consideration before the Labour Commissioner:

"i. Whether there existed employer - employee relationship between the deceased and Respondent No. 1.

ii. If so, whether the accident resulting into death of deceased Brij Kishore Gupta occurred during his employment with R-1 or was he murdered during his employment with R-1?

iii. Whether the Claimants are entitled to compensation under Employees Compensation Act.

iv. Any other directions?"

7. The claimants in order to substantial the claim examined CW-1 i.e. wife of the deceased while no other witness was examined by her as well as the defence. No witness was examined on behalf of the respondent. Suffice to say that both issues Nos. 1 and 2 were answered against the claimants and the Commissioner relied on decision in Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Company Ltd. & Anr.,  (2009) 13 SCC 405. and observed as under: -

"11. In the case of Malikarjuna the facts were that the deceased / Claimant / the driver of the vehicle which was insured with the Insurance Company went to the pond and while taking bath at a pit, he had slipped and fell down and had drowned and breathed his last. The claim petition was filed taking the stand that the death of the deceased had occurred during the course of and within the employment under the appellant. The vehicle was the subject - matter of insurance with the insurer and, therefore, it was the subject-matter of insurance with the insurer and, therefore, it was claimed that the insurer was liable to pay the compensation as the risk of the driver was covered under the policy. The Commissioner, Bellary by his or