FAO No. 392/2016 Page 1 of 9

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO No. 392/2016

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25^th September, 2017

TATA AIG GENERAL INSURANCE CO. LTD. ..... Appellant

Through:

Mr. Rudra Kahlon, Adv.

versus

SANT LAL SHARMA & ORS.

..... Respondent

Through:

Mr. Radheshyam Singh, Adv.

for R-1 and 2.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

FAO No. 392/2016 & C.M. Nos. 29625/2016 (for stay) and

7408/2017 (under Order XLI Rule 27 CPC)

1.

This first appeal under Section 30 of the Employees

Compensation Act, 1923 is filed by the insurance company,

respondent no.2 before the Employees Compensation Commissioner

below, impugning the judgment of the Employees Compensation

Commissioner

dated

16.5.2016

by

which

the

Employees

Compensation Commissioner has allowed the claim petition filed by

the respondent nos. 1 and 2/claimants, legal heirs of the deceased Sh.

FAO No. 392/2016 Page 2 of 9

Sunny Sharma. Respondent nos. 1 and 2/claimants have been

awarded an amount of Rs.9,01,000/- along with interest at 12% per

annum from 29.5.2012 i.e 30 days after the date of the accident.

2.

The facts of the case are that the subject claim petition

was filed by the respondent nos. 1 and 2 herein pleading that the

deceased Sh. Sunny Sharma was employed as a driver with the

respondent no.3 herein, respondent no.1 before the Employees

Compensation Commissioner, for the vehicle of the respondent

no.3/Sh. Anil Bhati bearing no. DL-2W-3365 (Gramin Sewa). It was

pleaded on 28.4.2012 when the deceased was on duty with the vehicle

then in the meantime another vehicle at around 6 PM bearing no. 3865

driven by Sh. Lucky came there and was parked just before the vehicle

of Sh. Sunny Sharma/deceased. This resulted in an altercation and Sh.

Sunny Sharma the deceased was beaten up by Sh. Lucky and a helper

Sh. Deepak. The fight resulted in death of Sh. Sunny Sharma and

resulting in an FIR No. 124/2012 under Sections 304/341/506/34 IPC

at Police Station Badarpur, New Delhi. It was pleaded by the

respondent nos. 1 and 2/claimants that the accident of death occurred

during the course of and arising out of employment of the deceased as

FAO No. 392/2016 Page 3 of 9

a driver of the vehicle of the respondent no.3 herein. Deceased was

pleaded to be 20 years old at the time of the accident and getting a

salary of Rs.10,000/- per month. The subject claim petition was hence

prayed for being allowed.

3.

Respondent no.3 herein/employer did not appear before

the Employees Compensation Commissioner and was proceeded ex-

parte. The appellant/insurance company contested the case and filed

its written statement. The factum with respect to insurance of the

vehicle has not been disputed for the period from 22.12.2011 to

22.12.2012. It was however pleaded that there was no relationship of

employer and employee between the deceased Sh. Sunny Sharma and

the respondent no. 3 herein.

4.

Respondent nos. 1 and 2/claimants led evidence and filed

their affidavit by way of evidence dated 6.5.2015. Evidence was also

led of an eye witness Sh. Deepak Kumar. Appellant/insurance

company, thereafter, led its evidence on 18.4.2016.

5.

Learned counsel for the appellant has argued that the

Employees Compensation Commissioner below has wrongly held in

favour of existence of relationship of employer and employee because

FAO No. 392/2016 Page 4 of 9

no proof was filed of any employment. It is argued that accordingly

this raises a substanti