Gujarat High Court
Regional vs Shakeenabibi on 4 February, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/195/2010 28/ 30 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 195 of 2010
With
CIVIL
APPLICATION No. 1107 of 2010
In
FIRST
APPEAL No. 195 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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REGIONAL
DIRECTOR - Appellant(s)
Versus
SHAKEENABIBI
MUNARASHKHAN PATHAN & 1 - Defendant(s)
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Appearance
:
MR
JITENDRA MALKAN for
Appellant(s) : 1,
MR SHAILESH C SHARMA for Defendant(s) : 1,
None
for Defendant(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 04/02/2010
ORAL
JUDGMENT
1. Heard learned advocate Mr.Jitendra Malkan for appellant ESI Corporation and learned advocate Mr. B.A. Vaishnav for respondent No.1 original claimant.
2. The appellant ESI Corporation has challenged judgment and order passed by ESI Court, Ahmedabad in ESI Application No.1 of 2002, Exh.41, dated 23.8.2005, whereby, ESI Court has awarded dependence benefits in favour of respondent No.1 claimant under Section 52 read with Schedule-I, because death of her husband occurred on 7.10.1995, which was considered to be an employment injury by ESI Court.
3. Learned advocate Mr.Malkan submitted that present appeal is preferred by appellant ESI Corporation under Section 82 of ESI Act. He submitted that ESI Court has committed gross error in deciding the application submitted by respondent No.1. He also submitted that death of deceased was not occurred during course of employment and matter is required to be remanded back to ESI Court and substantial question of law is that, whether the ESI Court has jurisdiction to consider that death of deceased employee can be considered as the death in due course of employment or not and whether ESI Court has jurisdiction or not ? Except that, no other submission is made by learned advocate Mr.Malkan before this Court.
4. The claimant Shakeenabibi Munarashkhan Pathan has filed claim application before the ESI Court under Section 75 of the ESI Act. Initially, this application was filed after a period of 2 years and 2 months. Therefore, prayer was made to condone the delay in filing such application. The ESI Court has condoned the delay in filing the application by respondent No.1. The husband of claimant was working as a night watchman in Roopam Cinema. His duty hours was from 9.00 p.m. To 7.00 a.m. On 7.10.1995, he was on duty as a night watchman from 9.00 p.m. to 7.00 a.m. with respondent No.2, who is the employer of deceased. During night hours, the husband of claimant was murdered by some unknown persons in early morning hours of 8.10.1995. The husband Munarashkhan Abdullabkhan Pathan was murdered in premises of Roopam Cinema where he was working as a night watchman. For this murder which was occurred during course of employment while performing duties at night as a night watchman, the employer has filed complaint before Kalupur Police Station. Thereafter, accident form has been filled up by employer which was sent to ESI Corporation. But no reply was received from ESI Corporation and no payment was made by employer to claimant. Therefore, claim application was filed by claimant before ESI Court under Section 75 of the ESI Act.
5. The notice was sent by claimant dated 27.12.2001 but, no reply is given by all other respondents to claimant. The present claimant is a widow of Munarashkhan Abdullabkhan Pathan having three sons. The deceased was working with employer for more than 27 years and died in night hours of 7.10.1995 because of murder committed by some unknown persons. The reply has been filed by ESI Corporation vide Exh.10 denying averments made in claim petition and also reply filed by respondent no.2 vide Exh.13 denying averments made in claim petition by claimant. The amount of gratuity has been paid to nominee of deceased. Thereafter, respondents raised various contentions against delay condonation application but, after considering objections, the ESI Court has condoned delay in the interest of justice and decided the claim application on merits. The contention raised by respondents that murder cannot cover under definition of accident or employment injury as per ESI Act. Therefore, claimant is not entitled any amount of dependence benefits from Corporation. The claimant has produced certain documents before ESI Court vide Exh.8 and in all, six documents have been produced. Vide Exh.14, two documents have been produced and vide Exh.30, again six documents have been produced which came to be exhibited vide Exh.31 to 36. On behalf of respondent No.1, vide Exh.11, three documents have been produced (i) letter dated 25.1.2002 addressed to RO office by Shri B.S.Gandhi (ii) letter dated 28.1.2001 written by Roopam Cinema to Manager of ESI Corporation and (iii) presence register. The employer has also produced in all 10 documents vide Exh.18. Thereafter, issues have been framed vide Exh.21 on 23.4.2004. Before ESI Court, claimant was examined vide Exh.24, who was cross-examined by advocate of both sides appearing on behalf of respondents. Thereafter, evidence of claimant has been closed vide Exh.25 and on behalf of respondent No.1, ESI Corporation, one witness Shri B.S.Gandhi was examined, who was the manager of local office, who has been cross-examined by other side. On behalf of employer, witness Shri Mukundbhai Shah, Manager of Roopam Cinema was examined. Thereafter, oral evidence has been closed and written arguments have been placed on record by claimant and claimant has relied upon decision of this Court reported in 2003 (3) GLH 226 in support of delay condonation application. After considering submissions made by learned advocates appearing on behalf of respective parties, issues have been framed and same have been examined by ESI Court and come to conclusion that sufficient cause has been established by claimant and therefore, delay has been condoned in the interest of justice. Thereafter, Issue Nos.3 and 4 have been examined, whether death of deceased is considered to be an employment injury or not and whether death of deceased occurred during course of employment or not ?
5.1 According to ESI Court, Munarashkhan Abdullakhan Pathan was working as a night watchman in Roopam Cinema. The contention raised by employer that he was working as a watchman but, from 9.00 a.m. to 7.00 p.m. Therefore, this question was examined by ESI Court considering evidence of claimant vide Exh.24 that her husband was working as night watchman in Roopam Cinema and his duty hours were from 9.00 p.m. to 7.00 a.m. and in case of new picture has been released by cinema hall, then some time even in noon also, employer has called the watchman. On 7.10.1995 her husband attended duty at 9.00 p.m. and during course of his employment and duty hours, her husband was murdered by some unknown persons. These facts have been admitted by employer, while filing complaint on next date i.e. on 8.10.1995, Shri Yogeshbhai, who was employer wherein it is made clear by him that while lodging complaint with Kalupur Police Station it is specifically made clear that deceased was working in Roopam Cinema as a night watchman and at the time when opening the entry room being a common hall, dead body of Munarashkhan A. Pathan was found near canteen counter; that some unknown persons have broken booking window for purpose of loot and murdered night watchman with sharp weapon. This complaint was filed by employer Shri Yogeshbhai vide Exh.31 in which itself it has been admitted by employer that deceased was working in Roopam Cinema as a night watchman. Vide Exh.32 being a police panchnama where deceased was murdered in the premises of cinema hall and in cinema hall, outside of portion near the gate, one iron cot was found where deceased Munarashkhan Pathan was sleeping and near 100 ft. from iron cot, inside one common hall is situated where said cot was lying, upon which deceased was sleeping. The drawer of booking office was also opened and bundles of tickets were also found lying on the earth as per panchnama and Rs.3000/- has been looted by unknown persons and even iron cupboard also found to be opened and accordingly, panchnama was drawn by police authority. Therefore, vide Exh.31 and Exh.32, these two facts have been proved that deceased was working as a night watchman with employer in Roopam Cinema on 7.10.1995 and during that night hours duty, he was murdered by some unknown persons and his dead body was also found in the premises of cinema. The inquest panchanama, Exh.33, also proved the fact that dead body was found in cinema premises. Even statement of Laxmanbhai which was recorded by police also makes it clear that administrative work of Roopam Cinema was being done by Shri Yogeshbhai Shah and Shri Harshadbhai C. Jani was the Manager and Shri Mukundbhai A. Shah was the Assistant Manager and deceased Munarashkhan Pathan was working as night watchman in Roopman Cinema and he was having key to each room and such key has been remained with him. Therefore, ESI Court has considered three documents at Exh.31 to Exh.33 and come to conclusion that deceased was working as a night watchman in Roopam cinema and during his working hours, he was murdered by unknown persons. The employer has produced muster roll (presence register) of October, 1995 vide Exh.18/2 where name of deceased Munarashkhan is at Senior No.23, against which merely duty hours started from 9.00 to 7.00, but no specific indication has been made, whether this 9.00 hrs. is of morning or night. Vide Exh.37, Shri Mukundbhai A. Shah, Assistant Manager was examined by employer, who was cross-examined by other side and he accepted or admitted the fact that in presence register, it was not made it clear that his duty hours from 9.00 morning or night. Similarly, in 7.00 hrs. also, it is not made clear, whether it is morning hours or night hours. However, witness Shri Mukundbhai A. Shah of employer vide Exh.37 has admitted one fact that deceased Munarashkhan being a watchman after completion of last show, he was sleeping in the cinema premises itself because the Roopam Cinema was not having any other night watchman and in day time also, said Munarashkhan was working as a watchman. Therefore, he also admitted that he was murdered on 7.10.1995 in cinema premises and it was informed by sweeper Laxmanbhai and on that basis Shri Yogeshbhai has filed complaint before Kalupur Police Station. That Exh.31 bears signature of Shri Yogeshbhai. At that occasion, Shri Harsahdbhai C. Gandhi was the Manager and witness Shri Mukundbhai was working as Assistant Manager. That identity card given to deceased which was signed by Shri Harshadbhai Jani, but other writing in identity card is not of Shri Jani.
6. In light of this aforesaid evidence which are not in dispute, the ESI Court has come to conclusion that deceased was murdered by some unknown persons on 7.10.1995 and looking to police complaint filed by Shri Yogeshbhai that he was working as a night watchman and was used to sleep after last show in the cinema premises. Therefore, deceased was working as a watchman protecting the property of Roopam Cinema, belonging to employer and during that period, this murder has been committed by unknown persons. The ESI Court has considered provisions of Section 51A of the ESI Act and decided Issue Nos.3 and 4 in favour of claimants, which having legal presumptions against employer. The ESI Court has also considered provisions of Section 2(8) which provides employment injury and come to conclusion that this amount to employment injury caused to deceased because of murder committed during working hours. Therefore, it is held by ESI Court that this murder of deceased being an employment injury and therefore, widow of deceased is entitled the dependence benefit as per Section 52 and Schedule I of the ESI Act from the appellant Corporation. This decision has been given on 23.8.2005.
7. I have considered submissions made by learned advocate Mr.Malkan and also considering submissions made by learned advocate Mr.Vaishnav appearing on behalf of claimant, the Section 2(8) employment injury which defined a personal injury to an employee caused by accident or occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India. That Section 51A of the Act provides that for the purposes of this Act, an accident arising in the course of an insured person's employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment. This legal presumption has been considered by Punjab and Haryana High Court in case of Harjinder Kaur v. ESI Corporation reported in (1987) 55 FLR 772 (P&H). The claimant is entitled dependence benefit as per Section 52 if an insured persons dies as a result of an employment injury sustained as an employee under this Act, dependent's benefit shall be payable at such rates and for such period and subject to such conditions as may be prescribed by the Central Government to his dependents specified in sub-clause (I), sub-clause (ia) and sub-clause (ii) of clause (6A) of Section 2.
8. The Madras High Court has, in case of Sellammal Spinning Mills Pvt. Ltd., Annur v. Bannari and Anr. reported in 2009-IV-LLJ 800 (Madras) where under Section 3 of WC Act, if workman dies due to multiple injuries received while was in night shift in generator room, it has been held that the accident which took place during course of and out of employment. Relevant observations of aforesaid decision are in Para.12 and 13 which is quoted as under :
12. The learned counsel for the respondents would cite a Division Bench decision of this Court which lays stress on the point of ascertaining casual connection between the employment and the accident. In Shanmuga Mudaliar and Others v. T.V. Noorjahan and Others 2003-I-LLJ-776 (Mad), the Division Bench after following the principles in English case, has held as follows at p.777:
4. The word accident' has not been defined under the act. But the definition given to this word by LORD MACNAGHTEN in the case of Fenton v. Thorley and Co. Ltd. (1903) AC 443 has been accepted as a most appropriate meaning of the word. He has defined accident as denoting an unlooked for mishap or an untoward event which is not expected or designed . The connection between the accident and the employment may be established if the strain had contributed to or accelerated or hastened the accident. It may not be possible at all times to produce direct evidence of the connection between the employment and the injury, but if the probabilities are more in favour of the applicant then the Commissioner is justified in inferring that the accident did in fact arise out of an in the course of the employment.
13. On behalf of claimants side, the Division Bench decision of Kerala High Court is also relied upon, which is United India Insurance Co. Ltd.
v. C.S. Gopalakrishnan and Anr. 1989-II-LLJ-30 (ker) in which it is held that while a bus conductor died of heart attack when sleeping in the parked work during rest hours, while the employer contended that the bus conductor suffered a natural death when he was not on duty and had no obligation to sleep inside the bus, since the employer had not provided any shed or shelter for the crew at the place of halting or for the safety of the bus for its safety under instructions from the owner, then it has to be discerned and decided that there is casual connection between the death and employment and employer ought to be held liable. It is also stressed in the decision that stress and strain of the work due to long hours duty with limited rest interval contributed to his death which arose out of and during the course of employment.
9. This Court has, in case of ESI Corporation v. G.G.Parmar reported in 2009 Lab I.C. 3807, held that applicants were injured while unloading acid from vehicle in factory has been considered employment injury under the provisions of Section 2(8) of ESI Act.
10. The question whether murder can be considered to be a employment injury or not, or whether murder is considered to be an accident or not, has been considered by Division Bench of Kerala High Court in case of National Insurance Co. Ltd. v. Lolakshi reported in 2009 ACJ 2319 where the driver engaged by owner of auto rickshaw for driving his vehicle was on duty when two persons hired auto rickshaw and killed the driver. The driver had no personal enmity with the killers. The murderers might have been hired by other persons due to political enmity with the deceased. The commissioner held that murderers hired the auto rickshaw as bona fide passengers and killed the driver. The question has been examined by the Division Bench of Kerala High Court is whether the Commissioner was justified in concluding that death arose out of employment and dependents are entitled to compensation. The answer is given Yes. Relevant observations are in Para.3, 4 and 5 which is quoted as under :
3. The Commissioner has further observed thus:
The workman was killed while he was working as a driver. His Autorikshaw was hired by the people on the disguise of ordinary passengers and he was killed by them. If he was not doing the job of driver, at this point of time he would not have been killed by this killers. He had no suspicion about these passengers who later turned his killers. Therefore there is no doubt that it was an accident out of his employment .
This is a finding of fact based on FIR, charge sheet and oral evidence adduced. In the light of the admitted facts the deceased was engaged as a driver by the first respondent and that he was killed while performing the duties as a driver. His death was certainly connected with the employment and there is nexus to the death and use of motor vehicle and his employment. In Lancashire and Yorkshire Railway Company v. Highley (1917 AC 352) it was observed by Lord Sumner as follows:
There is, however, in any opinion, one test which is always at any ate applicable, because it arises upon the very words of the Statute, and it is generally of some real assistance. In is this:Was it part of the injured person s employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of this was within the sphere of the employment or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury .
This decision was approved by the Apex Court in M.Mackenzie v. I.M.Issak (AIR 1970 SC 1906).
4.
When it is admitted that the accident occurred in the course of employment, the burden is on the employer to prove that it has no connection with the employment. Shri Chagla C.J. In Bhagurai v. General Manager, Central Rly. (AIR 1955 Bom. 105) held as follows:
Once that proximate connection is established the applicant has discharged he burden, and in this case the proximate connection between the employment and the injury is the fact that the deceased was at a particular spot in the course of his employment and it was at that spot that he was assaulted and done to death. In our opinion the learned Commissioner was in error in coming to the conclusion that the applicant had failed to discharge the burden that the deceased died of injury by accident arising out of his employment .
In the above case the Division Bench of Bombay High Court dealt with a case where a workman on his way to work was murdered. It was held that the death took place because of an accident arising out of employment. Chagla, C.J. Emphasized that there must be a casual connection between the accident and the death before it could be said that the accident arose out of employment of the concerned workman. In that case, the deceased was employed by Central Railway at Kurla Station and he lived in the railway quarters adjoining the station. It was found as a fact that the only access for the deceased from his quarters to the Kurla Railway Station was through the compound of the railway quarters. On December 20, 1952, the deceased left his quarters a few minutes before midnight in order to join duty. While on his way, he was stabbed by some unknown persons. When accidental injuries are caused in the course of employment, rebuttable presumption is that it is arising out of employment. There is express statement in a similar Social Security Legislation, I.e., The Employees State Insurance Act where compensation is provided for employment injuries sustained during the course of employment and arising out of employment.
Section 51A of the ESI Act reads as follows:
51A.Presumption as to accident arising n course of employment.- For the purpose of this Act, an accident arising in the course of an insured person s employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment .
5. On the facts of this case we have no doubt that the injuries sustained by the deceased during the course of employment have direct nexus to the employment and he was subjected to the peril. Only because he was driving the autorikshaw, it was hired by the members of the political party. Merely because the murderers might have been hired by other persons due to the political enmity to the deceased it cannot be stated that death is not arising out of employment. The Workmen s Compensation Act is a welfare legislation and it should be interpreted liberally considering the object of the legislature. In an identical case, United India Insurance Co. Ltd. V. Philo (1996 (1) KLT 423) a Division Bench of this Court awarded compensation to the dependents of a driver of a taxi who was killed by assailants during the course of employment. We also agree with the above view. In Samir Chandra v. M.D. Assam State Transport Corporation (1998 ACJ 1351) the Supreme Court considered a similar question under the Motor Vehicles Act. There while the bus was going through Assam during the Assam agitation some passengers were bombarded and some of them were injured. The Supreme Court held that it was arising out of the use of the motor vehicle. In view of the clear finding of fact that the incident occurred in the course of employment and it is arising out of employment, we are of the opinion that no interference is required with the impugned judgment.
Appeal fails and it is dismissed.
11. Recently, this Court has decided the aforesaid question in case of CHIEF SECRETARY & Others Vs. KUKABHAI DEHARBHAI in FA No.413 of 2008 on 1.2.2010. Relevant observations of aforesaid decision are in Para.9 which is quoted as under :
9. Learned advocate Mr.Paul has relied upon a decision of Madras High Court in case of TNCS Corporation Ltd. v. S. Poomalai reported in 1995 I LLJ 378 where in case of murder of employee in communal riot when he was on his way to the place of work, it is held that death is in the course of employment and death has caused in relation to his employment and thus, he is entitled to compensation. He also relied upon recent decision of this Court rendered in FA No.4344 of 2009 decided on 21.12.2009 where deceased driver Suleman Ahmed Peragar was murdered in Godhara riots case on 28.2.2002 where compensation has been awarded by W.C.Commissioner which has been challenged by United India Insurance Co. Ltd. before this Court where this Court has considered that murder is also amounts to accidental death which occurred during course of employment, then claimants are entitled amount of compensation from employer / Insurance Co. In aforesaid decision, this Court has relied upon decision given in FA No.3644 of 2009. In aforesaid decision of this Court, this Court has held that driver, who was murdered by next day of Godhara riots is an accidental death arose during course of employment. Therefore, decision rendered on 21.12.2009 is squarely covered the issue which has been arisen in present first appeal. Relevant discussion of aforesaid decision are quoted as under :
I have considered reasoning given by Commissioner and I have also appreciated oral evidence led by respective parties before Commissioner. The contention raised by learned advocate Ms. Hina Desai that there was no 'employer and employee' relation is established which cannot be accepted in light of oral evidence of owner of vehicle as well as written statement of owner of vehicle and written arguments made by owner of vehicle and evidence of claimant which clearly established that deceased driver was employed by owner of vehicle who was working for more than 7 years and receiving Rs.4,000/- salary with additional allowances. Against which, no rebuttal evidence was produced by appellant insurance company before Commissioner. The investigation report is not proved even not exhibited and no investigator was examined. Not only that but no oral evidence was led by appellant insurance company before Commissioner. Therefore, such incident where a result of Godhra riot occurred on 27th February 2002, next date 28th February 2002 being an immediate reaction which resulted into such accident where driver was died during the course of employment while performing duty entrusted by owner of vehicle as employer. Therefore, according to my opinion, finding given by Commissioner is squarely covered the issue that this is a clear case of accident murdered in Godhra riots and a mob committed a murder of driver as well as other person who was travelling in Sumo vehicle. This aspect has been considered by this Court in First Appeal No.3644 of 2009 with Civil Application No.10214 of 2009 decided on 01.10.2009, where, similar question was examined by this Court. Para 12 to 17 are relevant, therefore, the same are quoted as under :
I have considered submission made by learned advocate Mr. Mehta and I have also perused decisions which have been relied by learned advocate Mr. Mehta. The accident is not defined under M. V. Act and W. C. Act but it should have to be considered untoward incident being unexpected incident where injury caused to person or damage to any property to person either he may be died or receiving bodily injury.
The division bench of Culcutta High Court in case of Dipa Ganguly & Anr Vs. New India Assurance Company Limited & Anr. reported in AIR 2009 CULCUTTA 122 (DB). The relevant observation made in para 17, 18, 21, 22 and 23 are quoted as under:
17. We are, however, of the opinion that an accident within the meaning of the Act may occur not only from the negligent act but also from positive or intended act. Our aforesaid view finds support from the explanation added to Section 147(1) of the act according to which the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damage was not in a public place at the time of accident, if the act of omission which led to the accident occurred in a public place.
18. Therefore, according to the said explanation, the accident within the meaning of the Act may cause either due to omission or an act of a person and in our opinion, such omission or the act need not be unintentional as would appear from the fact that in the proceedings under Section 140, 163 -A or 163 B of the Act, the Tribunal is not required to consider whether there was rash and negligent driving on the part of the driver of the offending vehicle or whether there was contributory negligence on the part of victim.
However, in order to invoke section 166 of the Act, accident must not cause due to the self incurred act on the part of victim. But if the driver of the offending vehicle with the intention of killing the victim deliberately runs over the victim, the case will attract the provision of Section 166. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of Regional Director, E. S. I. Corporation Vs. Fransis de Costs reported in 1993 (Suppl) 4 SCC 100 while dealing with the undefined word accident in the context of Employee's State Insurance Act:
Accident has not been defined under the Act. The popular and ordinary sense of the word 'accident' means the mishap or untoward happening not expected and designed to have an occurrence is an accident. It must be regarded as an accident from the point of view of the workman who suffers from it, that its occurrence is unexpected and without design on his part, although either intentionally caused by the author of the act or otherwise. It may also arise in diverse forms and not capable of somewhat concrete happening at a definite point of time and an injury or incapacity results from such happening.
21.In the case of Ranju Rani Vs. Branch Manager, New India Insurance Company ltd. (supra), the victim while travelling in a Motor cycle was shot at due to animosity between the victim and the accused and as a result of such injury he died. In that context, the Patna High Court while dealing with an application under Section 163-A of the Act was of the opinion that the death did not arise out of an accident arising out of use of a motor vehicle but was an outright murder through bullet injury. In out view, it was rightly pointed out that the death had no connection with use of the motor vehicle but the death occurred due to firing. We quite appreciate that simply because a person has died while travelling in a motor vehicle, such fact by itself can not bring the case within the jurisdiction of the Tribunal unless it is shown that the use of motor vehicle is the cause of injury or the death resulting from the negligence or act of somebody done in a public place. Therefore, the said decision of the Patna High Court is not applicable in the facts of present case.
22. The case of Rita Devi (Supra), rather goes against the Insurance Company. In that case under Section 163-A of the Act, an autorickshaw driver was murdered in the process of theft of the said autorickshaw. In that context, the Supreme Court came to the following conclusion.
A conjoint reading of the above two sub clauses of Section 163-A shows that a victim or his heirs are entitled to claim from the owner/insurance company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle (Emphasis supplied) without having to prove wrongful act or neglect or default of any one. Thus it is clear, if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled for payment of compensation. In the present case, the contention of the Insurance Company which was accepted by the high Court is that the death of the deceased (Dasarath Singh) was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words 'death due to accident arising out of the use of motor vehicle.' Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it can not but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the autorickshaw.
23. In out opinion, the said decision rather supports the case of appellants. In the case before us, the Tribunal by relying upon the contents of the FIR pointed out that the victim as a traffic sergeant having charged the driver of the taxi concerned, under Section 184 of the Act for traffic rule violation sometime earlier on the same day, the driver being enraged, knocked the victim down resulting in his death. If in the process of stealing of an autorickshaw a murder of the driver is committed, such death is held to be 'arising out of the use of motor vehicle in public place , on the said analogy, killing of a traffic sergeant by the driver of a motor vehicle being infuriated by the booking of the said very vehicle for violation of the traffic rules earlier on the self same day, by running him over with the use of the said vehicle is on a better footing than the facts leading to murder in the case of Rita Devi and others. In this case, the taxi itself is the root of trouble and is also the tool used for killing the victim while in the case of Rita Devi and other (supra), the auto rickshaw was the object of felony but not the instrument used in killing the driver.
The division bench of Kerala High Court has also considered similar aspect in case of Venugopal Narayanan Nair & Ors Vs. T. L. Paulson & Ors reported in AIR 2009 KERALA 86, where death has been considered was caused due to accident. The division bench of Kerala High Court has come to conclusion that even in case of committing suicide due to depression is also amounts to accident considering medical evidence indicating that depression arose consequentially to head injuries sustained in accident reported in AIR 2009 Kerala 86.' In case of Rita Devi Vs. New India Assurance Co. Ltd reported in 2000 ACJ 801, Apex Court has come to conclusion that murder was due to accident arising out of use of Motor vehicle and claimants are entitled compensation. The relevant discussion made in para 10, 11, 12, 14, 15 and 18 are quoted as under:
10. The question, therefore, is: can a murder be an accident in any given case? There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a 'murder' which is not an accident, and a 'murder' which is an accident depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.
11. In Challis V. London and South Western Railway Company, (1905) 2 KB 154, the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the court rejecting an argument that the said incident can not be treated as an accident held:
The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be withing the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously.
12. In the case of Nisbet V. Rayne and Burn, (1910) 1 KB 689, where a cashier, while travelling in a railway to a colliery with a large sum of money for the payment of his employer's Workmen's, was robbed and murdered. The Court of Appeal held:
That the murder was an 'accident' from the standpoint of the person who suffered from it and that it arose 'out of' an employment which involved more than the ordinary risk, and consequently that the widow was entitled to compensation under the Workmen's Compensation Act, 1906. In this case the court of Challis v. London and South Western Railway Company, (1905) 2 KB 154. In the case of Nisbet, the court also observed that it is contended by the employer that this was not an 'accident' within the meaning of the Act, because it was an intentional felonious act which caused to death, and that the word 'accident' negatives, the idea of intention. In my opinion, this contention ought not to prevail. I think it was an accident from the point of view of Nisbet, and that if makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet.
14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it can not but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the autorickshaw.
15.Learned counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word 'death' and the legal interpretations relied upon by us are with reference to definition of the word 'death' in Workmen's Compensation Act, the same will not be applicable while interpreting the word 'death' in Motor Vehicles Act because according to her, the objects of the two Acts are entirely different. She also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the autorickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the objects of the two Acts, namely, the Motor Vehicles Act and the Workmen's Compensation Act are in any way different. In our opinion, the relevant object of both the Acts is to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to Workmen's as defined under that Act while the relief provided under Chapter X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours, we are supported by section 167 of the motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence, judicially accepted interpretation of the word 'death' in Workmen's' Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also.
18. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of use of motor vehicle. Therefore, the trial court rightly come to conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle.
In view of aforesaid decision where identical question was examined by Apex Court in case of Rita Devi which has been relied by Division Bench of Culcutta High Court as referred above and also considering one important aspect that breach of condition of insurance policy has not been pressed by insurance company vide exh 54. Therefore, impliedly insurance company has accepted liability of payment and considering fact that accident occurred during course of employment. The relationship as an employer and employee established on the basis of written statement filed by respondent no. 1 where admission has been made and no rebuttal evidence has been produced by insurance company respondent no. 2. Therefore, respondent no. 1 and 2 both are rightly held liable for payment of compensation which has been rightly worked out by Commissioner, Anand, for that, Commissioner has not committed any error which would require interference by this Court.
The insurance company has issued insurance policy under provision of Motor Vehicles Act. Therefore, according to recent decision of Apex Court in case of Kamla Chaturvedi reported in 2009 (1) LLJ 542, liability of interest upon insurance company not upon respondent no.
1. All issues decided by Commissioner rightly based on legal evidence and also finding given with application of mind which can not consider to be baseless and perverse. On the contrary, it based on legal evidence. Therefore, contention raised by learned advocate Mr. Mehta can not be accepted.
12. This appeal has been preferred by appellant under Section 82 of ESI Act. It is a mandatory provisions made by Legislation that no appeal shall lie from an order of ESI Court to the High Court, if it involves a substantial question of law. Looking to memo of appeal, there is no substantial question of law has been raised. The question which has been raised in appeal memo cannot consider to be a substantial question of law because it relates to facts only and these questions were not raised by appellant before ESI Court.
13. This aspect has been considered by this Court in a reported decision in case of Bhavnagar Municipal Corporation v. Bhanuben Maganbhai Havalia wd/o Maganbhai H. Havalia reported in 2009 (1) GLR 597. Relevant discussion is in Para. 27 to 29 which is quoted as under :
27. It is necessary to note one important point which has been connected with the root of the appeal as appellant has not raised substantial question of law which is necessary in filing First Appeal challenging the order passed by Workmen Compensation Commissioner under Section 30 of the Workmen's Compensation Act. Therefore, Section 30 is incorporated as under :
Section 30 : Appeals (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely -
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
[(aa) an order awarding interest or penalty under Section 4-A;]
(b) an order refusing to allow redemption of a half-monthly payment;
(c) an order providing for the distribution of compensation among the dependents of a deceased workman, or disallowing any claim of a person alleging himself to be such dependent;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of Section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions;
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees :
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties :
[Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.] (2) The period of limitation for an appeal under this section shall be sixty days.(3)
The provisions of Section 5 of the [the Limitation Act, 1963 (36 of 1963)], shall be applicable to appeals under this section.
28. As per proviso to Section 30 of the Workmen's Compensation Act, no appeal shall lie against any order unless a substantial question of law is involved in the appeal. Looking to the appeal memo filed by appellant, nowhere, substantial question of law has been raised by appellant. Not only that, but, substantial question of law has not been argued by learned advocate Mr. Munshaw before this Court. Most of the submissions are based on facts and evidence on record. The finding given by Commissioner cannot be considered to be perverse without any material on record or it is totally contrary to material on record, because, Commissioner has discussed each and every aspects of evidence and each evidence at length, discussed and thereby arrived at a factual finding to the effect that there was a relationship of employer and employee between appellant and workman deceased. On 22nd September 2004, the workman had reported for place of work and his presence was proved by evidence of Sitarambhai Exh.27 and evidence of widow Exh.12. When workman has reported for place of marking presence received heart attack while taking tea, thereafter, he shifted to his house, and then through ambulance, he shifted at Hospital. The nature of employment suggests to collect the garbage from various places having heavy goods to be loaded into tractor and such nature of work is to be performed by workman continuously for eight hours, which having a strain and stress accumulated day-by-day basis and therefore, on aforesaid evidence, a fact finding arrived at by Commissioner cannot found at fault with such fact finding. The appellate Court has no jurisdiction to entertain an appeal unless the same involves a substantial question of law; [Nasim Spring (Pvt.) Ltd. v. Om Jain reported in 1990 LLR 93 (MP)].
The mere difficulty of applying the facts to the law will not amount to a substantial question of law; [Asmath Bedi (dead) v. Marlmuthu reported in 1999 LLR 450 (Mad.)].
Therefore, in absence of substantial question of law which has not been raised in First Appeal and not argued before this Court by learned advocate, therefore, appeal challenging the factual aspect cannot be maintained in view of specific proviso to under Section 30 of the Workmen's Compensation Act, 1923. The view taken by Madras High Court in case of The Management, Boys Town Society, Tirumangalam, represented by its Secretary, Boys Town, Tirumangalam v. V. Palani & Anr. reported in 1997 II CLR 681.
The relevant observation is quoted as under :
6.
It has been held in the decision reported in Ramaswami v. Poongavanam, (1953) 1 M.L.J. 557 : AIR 1954 Mad. 218 : 66 L.W. 440 :
1953 M.W.N. 273, that whether a person is a workman or not is a question of fact on which there can be no appeal as per Section 30 f the Workmen's Compensation Act. It has been held in the decision reported in Smt. Asmath Beebi (Died) v. Smt. Marimuthu, (1990) I LLN 891, also as follows :
A question of fact, however substantial, cannot masquerade as a question of law and cannot automatically be treated as a substantial one even if the amount involved is substantial or the argument pressed is vehement. If it is of great public importance or if it arises so frequently as to affect a large class of people or is so basic to the operation of the Act so basic to the operation of the Act itself, one may designate the question of law as substantial. But, where it is covered already by precedents or the law on that aspect is well settled, the mere difficult of applying the facts to that law cannot make it a substantial question of law.
When we consider these two decisions, I am of opinion that the contention of the learned counsel appearing for the respondent that the appeal itself is not maintainable since there is no substantial question of law as required under Section 30 of the Workmen's Compensation Act is involve, is well founded and on that ground itself, the appeal is liable to be dismissed.
29. Therefore, in view of aforesaid decision, no contention has been raised by learned advocate Mr. Munshaw which having great public importance or involve a substantial question of law. Therefore, according to my opinion, there is no substantial question of law as required under Section 30 of the Workmen's Compensation Act is involved is well founded and on that ground itself, the appeal is also liable to be dismissed, so, this appeal fails on both the grounds; one is factual by proper evidence which was established before the Commissioner that deceased has received heart attack during the course of employment or out of employment and nature of employment having direct connection with physical strain and stress upon the workman and such physical strain and stress accumulated by day-to-day continuous working with the appellant which has been proved by evidence of widow Exh.12 and evidence of Sitarambhai Exh.27 and that has been rightly appreciated by the Commissioner and awarded compensation and also rightly awarded penalty and interest upon the appellant. For that, Commissioner has not committed any error which required interference by this Court. So, on both the grounds, appeal fails as substantial question of law is not involved as not raised by appellant before this Court as well as in appeal memo.
14. In view of above observations made by this Court after appreciating submissions made by both learned advocates and considering finding given by ESI Court, according to my opinion, the ESI Court has rightly come to conclusion that murder of deceased husband of claimant is covered by definition of 'employment injury' under Section 2(8) of the Act and also rightly held that presumption under Section 51A is also applicable to facts of present case, because dead body of deceased was found at work place and during duty hours, he was murdered by unknown persons. Therefore, ESI Court has rightly granted dependent's benefit under Section 52 and Schedule-I of the ESI Act. For that, ESI Court has not committed any error which requires interference by this Court. The finding recorded by ESI Court is perfectly justified and based on legal evidence and it cannot consider to be baseless and perverse finding. Therefore, according to my opinion, the ESI Court has not committed any error which requires interference by this Court. Therefore, there is no substance in present appeal. Accordingly, present appeal is dismissed.
15. As main appeal is dismissed, no order is required to be made in civil application for stay. Accordingly, civil application for stay is also dismissed.
16. It is directed to appellant - ESI Corporation to implement the judgment and order passed by ESI Court in ESI Application No.1 of 2002 dated 23.8.2005 in favour of respondent Shakeenabibi Munarashkhan Pathan and to pay dependent's benefit which are available to claimant under Section 52 and Schedule-I of ESI Act and also to pay Rs.500/- cost which has been awarded by ESI Court.
(H.K.RATHOD,J.) (vipul) Top