Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO No.303/2010 27th March, 2014 % ORIENTAL INSURANCE CO. LTD. ....Appellant Through: Mr. Pradeep Gaur, Advocate. VERSUS SMT. SHANTI DEVI AND ORS. Through: ...... Respondents Mr. Prabhakar, Advocate for respondent No.2. Mr. V.K. Tandon, Advocate for respondent No.3. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. Yes VALMIKI J.
MEHTA, J (ORAL) 1. This first appeal is filed under Section 30 of the Employee’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’) against the impugned order of the Commissioner dated 17.5.2010 by which the Commissioner allowed the claim petition filed by the respondent nos.1 and 2 herein (mother and wife of the deceased employee). Appellant/insurance company was the respondent no.3 before the Commissioner, and on deletion of the respondent no.3 it became the respondent no.2.
2. The facts of the case are that the deceased Sh. Dalip Kumar, aged 25 years was employed as a driver for driving the tempo bearing no.DL-1LE-2777 Tata 407 owned by the respondent no.3 herein (respondent no.1 before the Commissioner). The deceased Sh. Dalip Kumar on the directions of the employer on 9.7.2008 at about 8.00 P.M. left to fill the vehicle with gas from the godown of M/s. Uttam Special Gases Pvt. Ltd, A61, Okhla Industrial Area, Phase-II, New Delhi and reached there at about 9.30 P.M. The deceased Dalip Kumar parked the vehicle because the gas was to be filled at about 5.30 AM and he set the cylinder for filling the gas in the morning at 5.30 A.M. In the godown of the company M/s. Uttam Special Gases Pvt. Ltd there was a blast of a gas cylinder and Sh. Dalip Kumar died on the spot. An FIR bearing No.293 dated 10.7.2008 under Sections 286/304-A was registered in the police station.
3. Before the Commissioner, the employer/respondent no.3 appeared and conceded to the factum of employment of the deceased Sh. Dalip Kumar. The relationship of employer and employee was therefore admitted by the employer. The appellant/insurance company did not dispute that with respect to the vehicle in question there was a valid insurance policy for the period from 22.4.2008 to 21.4.2009 and additional insurance premium was paid for coverage under the Act. Since there was admission of relationship of employer and employee and the fact that the vehicle in question was insured with additional premium under the Act, Commissioner allowed the claim petition by applying the statutory formula.
4. The appellant/insurance company before the Commissioner filed the written statement denying its liability by stating that the accident cannot be said to have happened during the course of employment. This is stated by the insurance company in para 3 of its written statement and which reads as under:
“3. That the answering respondent cannot be held responsible for the death of Sh. Dalip Kumar as he was a driver of the vehicle only. He was not driving vehicle at the time of unfortunate accident. So his death was not caused during the course of employment and arising out of employment. While the tempo was being loaded with cylinders by others, the valve of one of the cylinders got broken and Sh. Dalip Kumar who was present at the site got fatal injury on account of above which ultimately resulted in to his death. The answering respondent is not liable to pay any compensation to the dependents of deceased.”
5(i) Before me, it is again similarly argued that the deceased cannot be said to have died on account of an accident happening during the course of and in relation to employment inasmuch as the deceased did not die while driving the vehicle. (ii) In my opinion, the argument urged before me is completely and absolutely frivolous to say the least inasmuch as in the written statement it is admitted in so many words that while the subject tempo which was insured was being loaded with cylinders the valve of the cylinder got broken and the deceased Sh. Dalip Kumar who was present at the site sustained fatal injuries resulting in his death. Surely, the meaning of the expression “accident arising out of and in the course of employment” is not restricted to the fact that the driver must necessarily be driving the vehicle when accident took place. Surely, standing near the vehicle when the vehicle was being loaded with cylinders is in the part and parcel of the duties of a driver, and at this stage, if an accident happens because of blast of a cylinder while loading of the cylinders in the truck, this accident is definitely one which arises out of and in the course of employment. 6(i) Counsel for the appellant sought to place reliance on the judgment of the Supreme Court in the case of Mallikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Co. Ltd. and Anr. AIR2009SC2019to argue that when a driver takes the truck to a temple as per the directions of the employer and after reaching the temple he goes to a pond for taking a bath where he slips and drowns in such a case it has been held by the Supreme Court not to be a case of death arising out of and in the course of employment and therefore in the present case also it must be held that the deceased did not die on account of an accident happening during the course of employment. (ii) The argument on behalf of the insurance company is totally misconceived because in the present case the appellant/insurance company itself admits in the written statement that the truck in question which was insured was being loaded with cylinders when one valve of one cylinder was broken and therefore there resulted in an explosion which caused the death of the deceased Sh. Dalip Kumar. Surely, when the deceased Sh. Dalip Kumar was standing near the truck he was performing his duties, because, a driver does not necessarily perform his duties only at the time of the driving of the vehicle. I do not think there is, and nor is any judgment cited before me, that, liability of an insurance company is only when the accident happens while the driver is driving the vehicle. 6(i) Learned counsel for the appellant finally argued that as per the FIR in question the explosion took place in the godown and which resulted in the death and therefore the accident cannot be said to have been arisen during the course of employment. (ii) The argument is once again absolutely frivolous because that is not even the case of the appellant/insurance company in the written statement filed by it before the Commissioner and even if I assume that this plea is raised in the written statement, even in such a case if the explosion takes place in the godown, the driver was performing his duties as a driver while his vehicle was being loaded, and hence the accident necessarily happens out of and in the course of employment of the driver. This argument is also therefore rejected.
7. In view of the above, there is no merit in the appeal, and the same is therefore dismissed with costs of Rs.25,000/-. Costs shall be paid to the respondent no.2 within a period of six weeks from today. In my opinion, it is advisable that the insurance companies should not file appeals on totally frivolous grounds which causes unnecessary expenditure to the claimants before the Commissioner. This appeal is one such frivolous appeal, and costs are being awarded in view of the observations of the Supreme Court in the case of Ramrameshwari Devi & Ors. Vs Nirmala Devi & Ors. (2011) 8 SCC249 MARCH27 2014 Ne FAO No.303/2010