Delhi

North East

CC/377/2012

Ultimate Telecom Engg. Solution - Complainant(s)

Versus

Divisional Manager National Ins. Co. Ltd. - Opp.Party(s)

27 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 377/12

 

In the matter of:

 

	M/s Ultimate Telecom Engg. Solution (P) Ltd. WZ-70-A, Palam New Delhi-110085	Complainant
	Versus
	Divisional Manager National Insurance Co. Ltd. DO-23, 106, Palika Bhawan, R.K. Puram New Delhi-110066
		Opposite Party

 

	DATE OF INSTITUTION:	20-09-2012
	DATE OF DECISION      :	27-04-2016

 

N.K. Sharma, President:-

Nishat Ahmad Alvi, Member:-

Ms Manju Bala Sharma:-

 

Order

 

1. The facts in brief, relevant for the disposal of this complaint are that the complainant company is a private limited company and has been engaged in the business of fitting towers of telephone communication companies and employed some employees including Brij Kishore Pandey, the deceased, and taking all safety measures while assigning of fitting machines to towers. The complainant has taken workman compensation policy from the OP for the period 7.3.2011 to 6.3.2012 for the welfare of the employees. On 31.01.2012, Brij Kishore Pandey, the deceased was working on a Vodafone Tower at Kondli, Sonepat when he fell on the roof and sustained fatal injury FIR No. 56/2012 was lodged. After the death of the said employee, complainant agreed to make payments/ compensation of Rs. 7,00,000/- to the legal representatives of deceased in the following manner.

	Chq No./ DD/ Cash			In favour of
				Smt. Babita Devi
	DD No. 875804			Priyanshu Kumar Pandey
				Baij Nath Pandey

 

The wife and father of deceased gave their respective affidavits in respect of receipt of compensation to the complainant. Two cheques for a sum of Rs. 1,00,000/- each to the legal representative of deceased were stopped due to financial problem. In the meanwhile complainant received summons from the Workman Compensation Court, Sonepat on 13.03.2012 with respect to the claim of the deceased Brij Kishore Pandey. On 28.07.2012 the complainant handed over a Demand Draft for a sum of Rs. 2,00,000/- in favour of children of deceased before the WC Commissioner, Sonepat. The complainant filed its claim before the OP on 23.05.2012 for reimbursement of Rs. 7,00,000/- but the OP repudiated the same on baseless ground vide letter dated 07.08.2012. Pleading deficiency on the part of the OP complainant prayed that OP be directed to pay Rs. 7,00,000/- alongwith interest @18% p.a., to pay compensation of Rs. 25,000/- towards mental pain and agony and Rs. 25,000/- as cost of litigation.

2. OP filed its written statement and took preliminary objection that the complaint is misconceived and the complainant has not come to this forum with clear hands and that there is no deficiency on the part of the OP. On merits the OP denied the allegation contained in the complaint stating that the same are not within the personal knowledge of answering OP except that the complainant has taken Workman’s Compensation policy which provides indemnify against legal liability for accident to employees under Workman’s Compensation Act. It is further stated that the death of the deceased employee is within the scope of Workman’s Compensation Act, Chapter-II section 8 of Workman’s Compensation Act deals with distribution of compensation and reads as under:

No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a workman or a person under a legal disability, shall be made otherwise then by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation :

Provided that, in case of a deceased workman, an employer may make to any advances on account of compensation (of amount equal to three months wages of such workman and so much of such amount) as does not exceed the compensation payable to that dependent shall be deducted by the Commissioner from such compensation and repaid to the employer.

3. It is further stated that the deceased was not wearing any safety equipment while working on the tower as per the FIR and that the alleged payment has been made directly to the dependents, it can’t be treated as payment under Workman’s Compensation Act. The claim of the complainant is not admissible under Workman’s Compensation policy as any payment under Workman’s Compensation Act has to be made to the dependents of the deceased through the Commissioner, Workman’s Compensation and without the knowledge of the OP and the OP had intimated this fact to the complainant vide its letter dated 07-08-2012. OP has taken objection as no cause of action arose within the jurisdiction of this Forum, this Forum has no jurisdiction to entertain this complaint.
4. Rejoinder to the written statement has been filed by the complainant reiterating the facts stated in the complaint.
5. Evidence by way of affidavit has been filed by both the parties, reiterating the facts stated in their complaint and reply respectively. Complainant has filed copy of identity card of deceased employee Ex CW1/1, School certificate of deceased employee Ex CW1/2, Register of payment of wages Ex CW1/3, Workman Compensation Policy Ex CW1/4, FIR EX CW1/5, Death certificate Ex CW1/6, Post Mortem Report Ex CW1/7, Summon received from Commissioner, Workman’s Compensation, Sonepat Ex CW1/8, attested copy of order Ex CW1/8A, Copy of cheques Ex CW1/9, Affidavit of wife of deceased Ex CW1/10 and father of deceased, Ex CW1/11, DD of Rs. 2,00,000/- gave before Commissioner, Workman’s Compensation CW1/12 and copy of repudiation letter Ex CW1/13 to prove its case. OP has filed copy of the terms and conditions of the Workman’s Compensation Policy Ex RW1/1 to prove its case.
6. Heard learned counsel for both the parties and perused the record. Counsel for the complainant has argued that since the Workman’s Compensation Policy has been taken by the complainant for the welfare of the employees and complainant has made payment/ compensation of Rs. 7,00,000/- to the legal representatives of the deceased and this fact has been recorded by the Commissioner, Workman’s Compensation in its order dt 30.07.12 Ex 1/8A the OP is liable to reimburse the amount paid by the complainant. Counsel for the OP has vehemently argued that the OP can’t be held responsible and liable for the negligence of the complainant and OP is under no obligation to make payment to complainant as per the terms and conditions of the policy. Ld. Counsel has drawn our attention to condition 5 of the Workman’s Compensation Policy which reads as under:

No admission offer promise or payment shall be made by or on behalf of the insured without the consent of the company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings and in the settlement of any claim and the insured shall give all such information and assistance as the Company may required.

7. As per clause 5, the insured shall not make any admission, offer, promise or payment without the consent of the insurance company and the insured shall give all such information and assistance as the company may require. In this case the complainant has neither given any information of the accident nor about the payment/ compensation which the complainant made to the legal representatives of the deceased before hand to the OP. However, the complainant has not filed any document to show as to when he filed the claim before the OP. The complainant only filed letter Ex CW1/13 vide which the claim has been repudiated. It is further argued by counsel that as per chapter II section 8 of Employee’s Compensation Act, no payment of lumpsum of compensation shall be made to a workman whose injury has resulted in death otherwise than by deposit with the Commissioner, Workman’s Compensation and no such payment made directly by an employer shall be deemed to be a payment of compensation. Counsel for complainant has stated that the fact of compensation paid to the wife and father of the deceased was brought to the notice of the Commissioner, Workman’s Compensation and this fact has been recorded by the Commissioner, Workman’s Compensation in its order dated 30.07.2012 (Ex CW1/8A). We have gone through the order of the Commissioner, Workman’s Compensation, it has been recorded by the Commissioner that the complainant has stated that a cheque of Rs. 4,00,000/- and cash of Rs. 1,00,000/- has already been paid by him to the wife and father of the deceased respectively without his permission. Section 8 of the Act is designed to protect the heirs and legal representatives of deceased workman against any kind of exploitation or fraud likely to be practiced on them by or on behalf of the employers or any third party. The object of this seems that unscrupulous employer should not take advantage of the ignorance of the employee in making payment of a paltry sum and therefore, the Act safeguards the interest of workers and any private                                                                                                                                    payment will not discharge the statutory obligation. It has also been held in Sumuben V/s Patel Industries 1994 UR 338 (Guj) that no compensation has to be paid in respect of a workman whose injury has resulted in death except by deposit with the Commissioner and no such payment made directly by the employer shall be deemed to be a payment of compensation, the employer should not make any payment of compensation directly to the deceased heirs and legal representatives or to any of them.
8. Ld. Counsel for the OP has further contended that the deceased was not wearing any safety equipment while working on the tower as stated by the co-employee of the deceased who was working with him and got registered FIR and this contention of the OP has not been substantiated by the complainant.
9. The Ld. Counsel for OP in its reply has taken an objection that this forum has no jurisdiction to entertain and take cognizance of the complaint as neither the OP resides or works for gain nor cause of action has arisen within the jurisdiction of this forum. The objection raised by OP is not sustainable in view of the decision of Hon’ble NCDRC in Holy Family V/s Amit Kumar II 2010 CPJ 2008 in which it has been held that Delhi being one district every district forum in Delhi is competent to take cognizance of the consumer complaint.
10. In view of the foregoing discussion we hold that the complaint of the complainant is without any merit and the same is hereby dismissed with no order as to costs.
11. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12. File be consigned to record room.
13. Announced on  27.04.2016

           

(N.K. Sharma) President

(Nishat Ahmad Alvi) Member

(Manju Bala Sharma) Member