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Judgment
Manoj Jain, J
CM APPL.36664/2024 (exemption)
Exemption allowed subject to all just exceptions
FAO 201/2024, CM APPL. 36663/2024 (stay), CM APPL.36665/2024 (for condonation of delay)
Insurance Company has challenged order dated 22.09.2023, passed by learned Commissioner, Employee’s Compensation, District Shahadara, North East, Delhi.
Before coming to the impugned order, it would be appropriate to see the order passed by Coordinate Bench of this Court in FAO No.514/2018 on 20.01.2023.
With respect to the same very incident, the same claimant had earlier come to this Court as his claim petition had been dismissed by the concerned Commissioner. The grounds which are being agitated in the present appeal were also taken or were available to the Insurance Company at that point of time as well.
The Coordinate Bench of this Court, while making reference to several judgments, came to conclusion that the impugned order of dismissal was liable to be set aside and the matter was remanded back to the learned Commissioner simply for the purpose of calculating and awarding compensation to the appellant. It was also directed that the matter be listed, at the first instance, before the Commissioner on 06.02.2023 and the compensation amount be released to the appellant within four weeks thereafter. Para 22 to 24 of said order reads as under:-
From an overview of the material on record and the order dated 10.08.2016 passed by Co-ordinate Bench of this Court in FAO 120/2016, it is evident that respondent No.1 has admitted the employee-employer relationship between the deceased and himself. No evidence to the contrary has been placed on record by respondent No.2.
Moreover, in cases such as the present one, no formal contract of employment is ordinarily executed between the parties [Refer: Seema and Others v. HDFC Ergo Gen Ins. Co. Ltd. and Others reported as 2023 SCC OnLine Del 19].
In view of the above, I find no ground to uphold the finding of the learned Commissioner that the deceased was not an ‘employee’ of respondent No.1 at the relevant time.
The appeal is allowed and the impugned order dated 30.08.2018 is set aside. The matter is remanded back to the learned Commissioner for awarding compensation to the appellants in terms of the EC Act within three weeks from today. Let the matter be listed at the first instance before the learned Commissioner on 06.02.2023 and the compensation amount be released to the appellants/claimants within four weeks thereafter.”
Thus, the task of the concerned Commissioner was, virtually, cut out. The Commissioner was merely required to calculate and award the compensation and as far as calculation of compensation is concerned, there is stated to be no ambiguity of any nature.
Learned counsel for the petitioner has stated that provision of Section 10 of Employee’s Compensation Act, 1923 has been overlooked. He, however, very fairly, states that he did not raise the aspect related to Section 10 of EC Act before the learned Commissioner.
In such a peculiar situation, such issue cannot be agitated in the instant appeal when it was neither taken before the learned Commissioner nor before the Coordinate Bench when earlier FAO was pending disposal. If the Insurance Company was aggrieved, it should have rather challenged order dated 20.01.2023.
It is apprised that the amount in question has already been deposited.
Keeping in mind the previous specific observations made by the Coordinate Bench and overall facts and circumstances of the case, I do not find any merit in the present appeal. The same is, accordingly, dismissed.
Needless to say, the amount deposited with the Commissioner may be released to the concerned claimants without any further delay.