Karnataka High Court
The Managing Director vs Sri Maruthiyappa @ Maruthi on 28 February, 2013
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 28TH DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
M.F.A. No.5702/2008 (WC).
BETWEEN:
THE MANAGING DIRECTOR
IMPLEMENTS & SPARE GLAND PARMA LTD.,
6-3-862, AMEERPET,
HYDERABAD.
... APPELLANT
(By Sri. RAVI HEGDE, ADV. FOR
SRI. K PRABHAKAR RAO, ADV.)
AND
1. SRI MARUTHIYAPPA @ MARUTHI
S/O BASANTAPPA SHINDE,
AGED ABOUT 60 YEARS,
R/AT NO.140, GREEN GARDEN,
4TH CROSS, GOKUL ROAD,
HUBLI.
2. SMT GIRIJABAI
W/O MARUTHIYAPPA @ MARUTHI,
AGED ABOUT 55 YEARS,
R/AT NO.140, GREEN GARDEN,
4TH CROSS, GOKUL ROAD,
2
HUBLI.
3. KUMARI MANJULA
D/O MARUTHIYAPPA @ MARUTHI,
AGED ABOUT 29 YEARS,
R/AT NO.140, GREEN GARDEN,
4TH CROSS, GOKUL ROAD,
HUBLI.
... RESPONDENTS
(By Sri. SURESH S GUNDI, ADV.)
THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE
W.C. ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 27/2/2008 IN W.C. NO.52/2007 ON THE FILE OF THE
COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-
DIVISION-2, HUBLI AND CONSEQUENTLY, REJECT THE CLAIM
PETITION FILED BY THE RESPONDENTS.
THIS APPEAL BEING RESERVED AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, NAGARATHNA J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal was posted for hearing the application for vacating the stay granted by this court on 29/08/2008, nevertheless, I have heard the learned counsel for the parties on the main appeal also.
2. This appeal is filed by the employer, assailing the order of the W.C. Commissioner, Hubli, in W.C.No.52/2007 dated 27/02/2008.
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3. For the sake of convenience, the parties are referred to, in terms of their status before the W.C. Commissioner.
4. The respondents herein who are the claimants had filed the claim petition under the Provisions of the Workmen's Compensation Act, 1923 ('W.C.Act' for the sake of brevity) seeking compensation on account of the death of one Premanatha M.Shinde on 11/03/2004, who was employed in the respondent-company as a Field Sales Manager. The claimants contended that they are the dependents of deceased Premanatha M.Shinde and that he died during the course of his employment and therefore, they were entitled to compensation under the said Act. The claim petition was contested by the employer by filing counter affidavit enclosing certain documents. On behalf of the claimants, the father of the deceased let-in evidence as PW1. Ex.P-1 to P-4 were marked in evidence. While the employer let-in the evidence as RW1 through its Law Officer by filing of an affidavit enclosing certain 4 documents. Despite several opportunities being given to RW1, he did not present himself for cross-examination. After hearing the parties, the matter was posted for judgment. At that stage, an application was filed for recalling RW1 and to permit him to mark the documents and to be cross-examined. The said application was, however, disallowed. The W.C. Commissioner proceeded to pass an order and awarded compensation of Rs.4,11,900/- along with interest at the rate of 12% p.a. from the date of the order and also imposed penalty of Rs.50,000/- on the employer. Being aggrieved by the said order, the respondent-company is in appeal.
5. I have heard the learned counsel for the appellant and the learned counsel for the respondents and perused the material on record and also the lower court records.
6. Several contentions have been raised on behalf of the appellant. It was firstly contended that the provisions of the W.C. Act would not apply to the case as 5 the deceased was not a 'workman' within the meaning of the W.C. Act. It is next contended that even if the Act applies, the death of Premanatha M.Shinde did not arise out of and during the course of employment. Elaborating the said contention, it is stated that the deceased was employed as a Field Sales Manager within the territory of Hubli-Dharwad. That there was no reason for him to visit Goa to meet the Regional Manager of the Company. That even though he was meeting the Regional Manager of the company, he suffered a heart attack and subsequently died, there was no casual connection between the death and his employment. In this regard, it is also contended that the death did not occur within the area of work of the deceased as Goa is outside the territory. Therefore, on this reason also the compensation cannot be granted.
7. It is also submitted that the Law Officer of the Company after filing his evidence in the form of affidavit, could not get the documents marked and also could not be cross-examined. Therefore, the evidence of RW1 is 6 incomplete. As a result, the company has not been able to let-in evidence. Hence, there is violation of the principles of natural justice and therefore, the order of the W.C. Commissioner, in the absence of contest by the company, is vitiated. It is also contended that the penalty of Rs.50,000/- imposed on the company is incorrect and therefore, that portion of the order also has to be set aside. He, therefore, submitted that the order of the W.C. Commissioner be set aside and the claim petition be dismissed.
8. To counter these arguments, learned counsel for the respondent-claimants has drawn my attention to sub-section (1) of Section 6 read with Clause (d) of Section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976 to contend that the deceased being a 'sales promotion employee', the provisions of W.C. Act is squarely applicable. That the death of Premanatha M.Shinde, no doubt happened in Goa and the area of operation of the deceased was Hubli-Dharwad, but the 7 latter territory falls within the region of Goa that he had proceeded to meet the Regional Sales Manager at Goa for the purpose of his work and that at the breakfast meeting, just prior to proceeding to work, the deceased suffered an attack of myocardial ischemia and subsequently died. Therefore, the death arose out of and during the course of employment.
9. It is next contended that the employer through the Law Officer had filed evidence in the form of affidavit and certain documents were also annexed to the counter affidavit. Despite several opportunities being provided to the said witness, he did not present himself for cross- examination and when the matter was posted for orders, an application was filed to recall RW1 and that application was rightly dismissed by the W.C. Commissioner and therefore, the appellant can have no grievance in this regard.
10. My attention has also been drawn to the documents, which are annexed to the counter affidavit and 8 it is submitted that a perusal of the said documents would reveal that the death arose out of and during the course of employment. That the deceased had gone to Goa to meet the Regional Sales Manager and that Hubli-Dharwad comes within the Goa Region.
11. It is also contended that the W.C. Commissioner rightly imposed penalty on the appellant- company and therefore, it is not necessary to set aside any portion of the order of the W.C. Commissioner. He submitted that there is no merit in this appeal and hence, the order of stay be vacated and the appeal be dismissed.
12. Having heard the learned counsel on both sides and on perusal of the material on record as well as the original records, it is noticed that the appeal has been admitted on 29.08.2008 on which day, the stay of the impugned order has been granted. However, since no substantial questions of law have been framed, the same are framed as under:
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i) Whether the provisions of the W.C. Act is applicable to the case on hand?
ii) Whether the death of Premanatha M.Shinde arose out of and during the course of his employment?
iii) Whether the appellant has been prejudiced by the order of the W.C. Commissioner not allowing RW1 to mark his documents and be cross-examined in the matter?
iv) Whether the imposition of penalty of Rs.50,000/- on the appellant is justified?
13. It is not in dispute that the death of Premanatha M.Shinde occurred on 11.03.2004 at Goa. He suffered uneasiness while at a meeting with the Regional Sales Manager and subsequently, died of ischaemic attack. The first question to be answered is, as to 'whether the provisions of the W.C. Act applies to the case'.
14. Clause (d) of Section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976 defines a 'sales promotion employee' as follows:
"2.Definitions - In this Act, unless the context otherwise requires,-10
(a) "establishment" means an establishment engaged in pharmaceutical industry or in any notified industry;
(b) "notified industry" means an industry declared as such under section 3;
(c) "prescribed" means prescribed by rules made under this Act.
[(d) "sales promotion employees" means any person by whatever name called (including an apprentice) employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both, but does not include any such person-
(i) who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem; or
(ii) who is employed or engaged mainly in a managerial or administrative capacity."
Explanation:- For the purposes of this clause, the wages per mensem of a person shall be deemed to be the amount equal to thirty times his total wages (whether or not including, or comprising only of, commission) in respect of 11 the continuous period of his service falling within the period of twelve months immediately preceding the date with reference to which the calculation is to be made, divided by the number of days comprising that period of service;]
(e) all words and expressions used but not defined in this Act and defined in the Industrial Disputes Act, 1947 (14 of 1947), shall have the meanings respectively assigned to them in that Act."
Section 6 of the said Act pertains to the applicability of the other Acts including the Workmen's Compensation Act, 1923 to the Sales Promotion Employees (Conditions of Service) Act, 1976. Section 6 reads as follows:
"6.Application of certain Acts to sales promotion employees- (1) The provisions of the Workmen's Compensation Act, 1923 (8 of 1923), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act.12
[(2) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute.] (3) The provisions of the Minimum Wages Act, 1948 (11 of 1948), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, employees within the meaning of that Act.
(4) The provisions of the Maternity Benefit Act, 1961 (53 of 1961), as in force for the time being, shall apply to, or in relation to, sales promotion employees, being women, as they 13 apply to, or in relation to, women employed, whether directly or through any agency, for wages in any establishment within the meaning of that Act.
(5) The provisions of the Payment of Bonus Act, 1965 (21 of 1965), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, employees within the meaning of that Act.
(6) The provisions of the Payment of Gratuity Act, 1972 (39 of 1972), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, employees within the meaning of that Act.
(7) Notwithstanding anything contained in the foregoing sub-sections,-
(a) in the application of any act referred to in any of the said sub-section to sales promotion employees, the wages of a sales promotion employee for the purposes of such Act, shall be deemed to be his wages as computed in accordance with the provisions of this Act;14
(b) where an Act referred to in any of the said sub-sections provides for a ceiling limit as to wages so as to exclude from the purview of the application of such Act persons whose wages exceed such ceiling limit, such Act shall not apply to any sales promotion employee whose wages as computed in accordance with the provisions of this Act exceed such ceiling limit.] Section 4 and 4A of W.C. Act read as follows:
"[4. Amount of compensation- (1) subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-
(a) Where death results an amount equal to [fifty from the injury per cent]of the monthly wages of the deceased workman multiplied by the relevant factor;
or an amount of [eighty thousand rupees] whichever is more; one lakh twenty thousand rupees.
(b)Where per- an amount equal to [sixty per manent total cent] of the monthly wages of 15 disablement injured workman multiplied by results from the the relevant factor;
injury or an amount of [ninety thousand rupees] whichever is more; one lakh and forty thousand rupees.
Explanation I :- For thepurposes of clause(a) and clause (b) "relevant factor" in relation to a workman means the factor specified in the secondcolumn of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due.
Explanation II":- Where the monthly wages of a workman exceed [four thousand rupees], his monthly wages for the purposes of clause(a) and clause (b)shall be deemed to be [four thousand rupees] only;
(c) where permanent (i)in the case of an injury partial disablement of Schedule I, such percent result from the injury age of the compensation which would have been pay-
able in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation 16 payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
Explanation I - Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II - In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;
(d) Where temporary a half monthly payment of the disablement to twenty-five per cent of whether total or monthly wages of the workman partial results to be paid in accordance with from the injury the provisions of sub-
section(2) [(1A) Notwithstanding anything contained in sub- section(1), while fixing the amount of compensation payable to a workman in respect of an accident occurred outside India, the Commissioner shall take into account the amount of compensation, if any, awarded to such workman in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the workman in accordance with the law of that country.] 17 (2) The half-monthly payment referred to in clause (d) of sub-section (1) shall be payable on the sixteenth day-
(i) from the date of disablement where such disablement lasts for a period of twenty-eight days or more, or
(ii) after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twenty-
eight days; and thereafter half-
monthly during the disablement or during a period of five years, whichever period is shorter:
Provided that-
(a) there shall be deducted from any lump sum or half-monthly payments to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half- monthly payment, as the case may be; and
(b) no half-monthly payment shall in any case exceed the amount, if any by which half the amount of the monthly wages of the workman before the accident exceeds half the amount of such wages which he is earning after the accident.
Explanation- Any payment or allowance which the workman has received from the employer towards his medical treatment shall not be deemed to be a payment or allowance received by him by way of compensation within the meaning of clause (a) of the proviso.
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(3) On the ceasing of the disablement before the date on which any half-monthly payment falls due there shall be payable in respect of that half- month a sum proportionate to the duration of the disablement in that half-month.] [(4) If the injury of the workman results in his death, the employer shall, in addition to the compensation under sub-section(1), deposit with the Commissioner a sum of [two thousand and five hundred rupees] for payment of the same to the eldest surviving dependant of the workman towards the expenditure of the funeral of such workman or where the workman did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure.] [4A. Compensation to be paid when due and penalty for default-
(1) Compensation under section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment and shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.
[(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall- 19
(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and
(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears, and interest thereon pay a further sum not exceeding fifty per cent of such amount by way of penalty:
Provided that an order for the payment of penalty shall not be passed under clause(b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.
Explanation:- For the purposes of this sub-section, "scheduled bank" means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934).
[3(A) The interest and the penalty payable under sub-section(3) shall be paid to the workman or his dependant, as the case may be.]]
15. In the instant case, the deceased was employed in the appellant's company to do the work relating to promotion of sales or business. He was called a Field Sales Manager. He was under the supervision of the 20 Area Sales Manager who was under the supervision of the Regional Sales Manager as is evident from the material on record. The area of operation of the deceased was Hubli- Dharwad. On a combined reading of the aforesaid Sections, it becomes clear that the deceased was engaged as a Sales Promotion Employee though he was called as a 'Field Sales Manager'. He did not have any other employees to manage. In fact, he was an employee assigned the area of Hubli- Dharwad, in the other words, he worked as a Medical Representative. Therefore, the deceased is covered under the provisions of the 1976 Act as well as W.C. Act and is a 'workman' within the provisions of Clause (n) of sub-section (1) of Section 2 of the W.C. Act. Hence, W.C. Act is applicable to the deceased and the claimants are dependents within the meaning of Clause (d) of sub-section (1) of Section
2. Under Explanation II to Section 4(1) of the W.C. Act, the maximum wages is deemed to Rs.4,000/- per month only even if he is receiving a higher wages as in the instant case, the deceased salary was Rs.5,000/- p.m. Accordingly, point No.1 is answered against the appellant. 21
16. The next question to be answered is, as to whether the death of the workman arose out of and in the course of his employment as is the requirement under Section 3 of the W.C. Act. This and the next question with regard to non-marking of the documents produced by the appellant herein will have to be taken up together.
"3. Employer's liability for compensation--
(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be so liable --
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding [three] days;
(b) in respect of any [injury, not resulting in death [or permanent total disablement] caused by] an accident which is directly attributable to--22
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or
(iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman, [(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to 23 that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is provided, the accident shall be deemed to have arisen out of, and in the course of, the employment: [Provided that if it is proved,--
(a) that a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule II has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub- section for that employment; and
(b) that the disease has arisen out of and in the course of the employment, the contracting of such disease shall be deemed to be an 24 injury by accident within the meaning of this section:
Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub- section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.] [(2A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was under more than one employer, all such employers shall be liable for the payment of 25 the compensation in such proportion as the Commissioner may, in the circumstances, deem just.] (3) [The Central Government or the State Government], by notification in the Official Gazette, after giving, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub-section (2) shall apply 10[in the case of a notification by the Central Government, within the territories to which this Act extends, or, in case of a notification by the State Government, within the State] [***] as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.] (4) Save as provided by [sub-sections (2), (2A)] and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is [***] directly 26 attributable to a specific injury by accident arising out of and in the course of his employment.
(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury--
(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or
(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act."
Under Section 3 of the Act, if personal injury is caused to a workman by accident arising out of and in the course of employment, then his employer is liable to pay compensation in accordance with the provisions of Chapter
2. The expression 'accident' should be understood as a 27 mishap or an untoward event, not expected or designed, and without any sole contribution on part on the part of the workman for the cause of injury or death. There has to be a causal connection between the employment and the death. In other words, the word 'accident' means, an unintended and unexpected occurrence, which produces hurt or loss. Keeping the parameters of Section 3 of the Act, the cause of death of the workman in the instant case can be examined.
17. As is evident, the death of the workman occurred at Goa on 11.03.2004. At that time, he was employed as the Field Sales Manager by the appellant-company. The contention of the claimants is that the death occurred while he was discharging his duties and arose out of his employment and therefore, they are entitled to compensation under the provisions of the Act. Evidence has been let-in in that regard by the claimants. Four documents are marked as Exs.P1, P1a, P2, P3 and P4. No doubt, the area of operation of the deceased workman was 28 Hubli-Dharwad. It is also not in dispute that the death occurred while he was meeting the Regional Sales Manager. Along with the counter affidavit filed by the Regional Sales Manager at Bangalore seven documents have been produced. The Law Officer of the appellant- company has examined himself in examination-in-chief in the form of an affidavit. The said affidavit is taken on record. At para 10 of the affidavit, it is stated as follows:
"10. I further say that, he met Mr.S.K.Satish who was the Regional Sales Manager at 9.15 A.M. and both of them went to a Hotel for breakfast, no sooner they entered the Hotel Mr. Premanath Shindhe once again started complaining of severe chest pain burning. Immediately Mr. Satish took him to Hospital, meanwhile Mr. Premanath Shindhe collapsed. I further say that, Mr. Premanath got an attack in the morning itself, which was neglected by him. I further say that, the petitioners are misrepresenting the Hon'ble Court to suit their convenient."
18. Along with the affidavit also seven documents have been produced. However, these were not marked in evidence. The affidavit was filed on 03.09.2007. After the said date, the deponent did not appear before the W.C. Commissioner either for getting the documents marked or 29 for being cross-examined. Under the circumstances, the documents which have been mentioned in the affidavit are required to be admitted in evidence which can be done in this proceeding itself, rather than remitting the matter to the W.C. Commissioner. The appointment letter of the deceased is dated 24.12.2003 is marked as Ex.R-1, two E-mails dated 11.03.2004 and 14.03.2004 are marked as Exs.R-2 and R-3 respectively, the post- mortem report dated 12.03.2004 is marked as Ex.R-4, the inquest panchnama along with two letters are collectively marked as Ex.R-5, the bio-data of the deceased workman is marked as Ex.R-6, the letter dated 06.07.2004 written by the father of the deceased workman to the General Manager of the appellant- company is marked as Ex.R-7 and the letter of the LIC of India is marked as Ex.R-8 and respondent's letter dated 20.05.2004 is Ex.P-9 dated 05.08.2004 of the appellant-company written to the father of the deceased workman is marked as Ex.R-10. Therefore, the 30 grievance of the appellant that these documents could not be marked in evidence is assuaged inasmuch as the said documents are now taken on record as Exs.R-1 to R-
10. No doubt, the claimants have not cross-examined the deponent of the appellant-company. However, that cannot prejudice the appellant-company as the deponent failed to present himself for cross-examination. If at all, it is the claimants who can raise a grievance that they were deprived of an opportunity to cross-examine the employer's witness. Since these documents are relied upon by the appellant which are taken on record, the same could be considered in order to ascertain as to whether the respondent-claimants are entitled to any compensation as the documents would speak for themselves.
19. Ex.R-1 is the appointment letter of the deceased Premanatha M.Shinde dated 24.12.2003 which says that he is appointed as a Field Sales Manager based at Hubli. He was to report to the Zonal Sales Manager based at Hyderabad. His salary is Rs.5,000/- per month. Ex.R-2 is 31 the E-mail sent by Sri. S.K.Satish, the Regional Manager to Sri.Anil Sharma, General Manager (Sales & Marketing), narrating about the circumstances relating to the death of the workman. Ex.R-3 is the copy of the letter dated 14/03/2004 written by S.K.Satish, the Regional Manager to the General Manager (Sales & Marketing) stating that the workman died of "acute myocardial ischaemia due to fresh thrombosis formation". Ex.R-4 is the autopsy report. Ex.R-5 is the inquest panchnama. Ex.R-6 is the profile of the deceased workman with the comments of the Officer of the appellant-company. Ex.R-7 is the letter written by the father of the deceased workman seeking settlement of the dues on account of the death of his son. Ex.R-10 is the letter written by the Head Sales and Marketing Officer of the appellant to the father of the deceased workman seeking certain documents for processing the Provident Fund accumulation of the deceased person.
20. On a conspectus reading of these documents and the affidavit of the Law Officer of the appellant- 32 company, it becomes clear that the deceased Premanath M.Shinde had gone to Goa to meet the Regional Sales Manager, S.K.Satish. At about 9.15 a.m., both of then went to a hotel for breakfast. The deceased workman complained of severe chest pain and burning sensation. The Regional Sales Manager took him to the hospital, where he collapsed. Though the death has occurred in Goa, which is outside the actual territory of operation of the deceased workman as a Sales Representative, nevertheless, the death has occurred during the course of and arising out of employment as he had been to Goa to meet the Regional Sales Manager covering the region in which the deceased territory of operation falls. The deceased had not gone on a private visit to Goa. It was for the purpose of his work. Hubli-Dharwad Division would come within the Goa Region, where the Regional Sales Manager was based, who had asked the deceased to meet him. In fact, the E-mail of the Regional Sales Manager to the General Manager (Sales & Marketing) clearly states that at 9.15 a.m., the deceased workman met him at the 33 hotel and from there, they were to leave for work together, after having breakfast. At that time, he complained about severe burning in the chest and pain in the shoulder in the morning. The Regional Manager took the deceased workman to hospital. When they entered the hotel, he once again started complaining of severe chest burning. It was decided that they should visit the hospital. They had hardly moved for 100 ft., he collapsed gasping for breath. He was shifted to the General Hospital by a car belonging to one of the passers by. But there was no doctor and there was no facilities to treat emergency cases. He was thereafter shifted to Goa Medical College Hospital, where the doctors tried to save him, but he died. Though the death occurred in Goa and not within the actual area of operation of the deceased i.e., at Hubli- Dharwad, nevertheless, the death has occurred at the time when the deceased workman was to proceed to work along with the Regional Sales Manager after having breakfast at a hotel. At that time, he collapsed in the hotel and thereafter died in the hospital. The totality of 34 circumstances, would only point to the fact that the death arose during the course of employment. In this context, reliance could be placed on a decision reported in the case of United India Insurance Co. Ltd., Bangalore V/s. Smt. Susheela & others (2004 (2) KLJ 265). In the said case, it has been held that where a workman was engaged for doing work as a Watchman during night was suffering from heart ailment and died of heart attack while on his way back home in the morning after finishing night duty, it can be inferred that his death arose out of and during the course of employment, where it is proved that his ailment was aggravated by work, which involved keeping himself awake and standing and walking through out night. It is stated that the theory of notional extension of both place of work and working hours would apply.
21. It is also significant to note that in the instant case, the deceased workman was employed as a Sales Representative. He would have been given targets, which have to be met on a monthly basis. The Sales Representative 35 would have to be on his toes in order to get business for the company. The Regional Manager had asked him to meet him at Goa, where they were to meet certain doctors in order to make representations about the products of the appellant-company. The said job cannot be said to be without stress.
22. The nature of work that was being performed by the deceased workman and the fact that the deceased workman had to travel from Hubli to Goa in order to meet the Regional Manager and to work with him at Goa in order to meet the doctors there for making representation about their products and also the fact that the deceased workman had to meet the targets with regard to sales promotion and getting business for the appellant-company would have been a cause for the workman to suffer a heart attack on account of stress. In other words, the workman was engaged in a stressful job. The nature of the job that was being performed by him and the fact that he had to work at a different places along with the Regional Manager 36 could have added to the stress of the workman which ultimately led to a ischaemic heart attack resulting in his death. The deceased workman died of "acute myocardial ischaemic due to fresh thrombosis formation" as per Ex.P3. 'Myocardial' is pertaining to the heart. 'Ischaemia' refer to lack of oxygen due to inadequate flow of blood to the heart, which results from an imbalance of oxygen supply and demand. Coronary blood flow can also be limited by arterial thrombi, spasm and emboli. It means, insufficient supply of blood to a specific organ or tissue which may be due to atherosclerosis or as a result of injury. A spasm is a sudden contraction of muscles. A coronary spasm that is pertaining to the heart is accentuated by emotions and exertion. Chest pain on account of myocardial ischaemic attack, resulting in cardiac arrest, is an untoward event or a mishap, which is an accident within the meaning of Section 3 of the Act and since the cardiac arrest occurred during the course of performing his duties, there is causal connection between the death and the employment. Therefore, it is held that the death arose out of and during 37 the course of employment of the deceased as a Sales Representative.
23. The marking of these documents in this appeal is, having regard to the fact that the documents are already on record, but were not marked in evidence. In view of the decision of this court in ILR 2007 Karnataka 1127 (Shanthaveerappa V/s. K.N.Janardhanachari), this court being the first appellate court, is competent to take the documents on record and also additional evidence if any, consider the same for the purpose of deciding the appeal rather than remitting the matter back to the W.C. Commissioner for a retrial of the matter. These documents, which are produced by the appellant-company in fact, support the case of the claimants.
24. The W.C. Commissioner has awarded interest at the rate of 12% p.a. thirty days from the date of adjudication, whereas, the Hon'ble Supreme Court in the case of Oriental Insurance Co.Ltd., V/s. Siby George & others (2012 ACJ 2126) has held that the interest 38 must be thirty days from the date of death. Therefore, that portion of the order calls for modification in this appeal.
25. The W.C. Commissioner has imposed penalty of Rs.50,000/-, as according to him, the appellant had delayed in settling the claim. Having regard to the nature of controversy involved in this matter which has called for adjudication of substantial questions of law and though the appellant delayed in the conclusion of the matter before the W.C. Commissioner, yet, I am of the view that the imposition of penalty was not justified. Therefore, that portion of the order of the W.C. Commissioner is set aside. In this regard, reliance could be placed on Smt. Nirmala Bai & another V/s. Ashok & others (1999 (83) FLR
56) which is a decision of this court, wherein it is stated that the W.C. Commissioner must form an opinion that delay in making the payment has been without any justification. There has to be an act of defiance of law on the part of the employer or it was an act amounting to a 39 guilty of conduct, contumacious or dishonest, or acted in conscious disregard of its obligation. The penalty cannot be imposed simply because the amount was to be deposited, but it had not been done so.
26. In the result, the appeal is allowed in part. The compensation awarded by the W.C. Commissioner is affirmed. The interest on the compensation shall be payable thirty days from the date of death. The imposition of penalty of Rs.50,000/- on the appellant is set aside. Parties to bear their respective costs.
27. The amount in deposit before this court to be transmitted to the office of the W.C. Commissioner, Hubli. The appellant to deposit the interest on the compensation awarded by the Tribunal, within a period of six weeks from today.
SD/-
JUDGE S*