Bombay High Court
New India Assurance Co. Ltd vs Shobhabai Bajirao Shelar And Ors on 8 December, 2009
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
(1)
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
FIRST APPEAL NO. 1228 OF 2007
New India Assurance Co. Ltd.,
Branch Manager, Nandurbar,
through its Authorised Signatory
Mr. Suhas s/o Purushottam Puranik,
Deputy Manager, New India Assurance
Co. Ltd., R/o Aurangabad. APPELLANT
VERSUS
1. Shobhabai wd/o Bajirao Shelar
2. Shivaji s/o Bajirao Shelar,
Both r/o Nagsen Nagar, Near
Naik High School, Shahada, Tq.
Shahada, Dist. Nandurbar.
3. Mahendra Lakhamichand Agrawal,
R/o Khetiya Road, Shahada, Tq.
Shahada, Dist. Nandurbar. RESPONDENTS
.....
Mr. Dhananjay Deshpande, advocate for the appellant. Mr. J.R. Shah, advocate for the respondent No. 3.
.....
WITH FIRST APPEAL NO. 735 OF 2009 New India Assurance Co. Ltd., Branch Manager, Nandurbar, through its Authorised Signatory Mr. Vishwas s/o Bansi Gaikwad, Sr. Divisional Manager, New India Assurance Co. Ltd., R/o Aurangabad. APPELLANT ::: Downloaded on - 02/08/2016 17:01:48 ::: (2) VERSUS
1. Shobhabai wd/o Bajirao Shelar
2. Shivaji s/o Bajirao Shelar Both r/o Nagsen Nagar, Near Naik High School, Shahada, Tq. Shahada, Dist. Nandurbar.
3. Mahendra Lakhamichand Agrawal, R/o Khetiya Road, Shahada, Tq.
Shahada, Dist. Nandurbar. RESPONDENTS .....
Mr. Dhananjay Deshpande, advocate for the appellant.
Mr. Hemant Surve, advocate for respondents No. 1 and 2. Mr. J.R. Shah, advocate for respondent No. 3.
.....
[CORAM : V.R. KINGAONKAR, J.] [DATE : 8th December, 2009] ORAL JUDGEMENT :
1. These appeals are being decided together in as much as they arise out of same set of facts and the proceedings under section 4 read with Schedule-IV of the Workmen's Compensation Act, 1923.
2. The respondents are original claimants. They filed application under section 4 read with Schedule-IV of the Workmen's Compensation Act for compensation of Rs. 3,22,297/- on account of death of Bajirao, who was ::: Downloaded on - 02/08/2016 17:01:48 ::: (3) driver of a dumper vehicle bearing registration No. MH-18/E7190, alleging that his death occurred during course of the employment with original respondent No.1.
They also filed application for interim compensation in the said proceedings.
3. Since the interim compensation was awarded by the Workmen's Compensation Commissioner/Civil Judge (S.D.), the Insurance Company has preferred First Appeal No. 735/2009 which came to be registered after condonation of the delay. The original application was finally adjudicated and compensation of Rs. 86,260/-
alongwith future interest at rate of 9 per cent P.A. was awarded to the respondents by allowing their application under section 4 read with Schedule-IV of the Workmen's Compensation Act. Feeling aggrieved, First Appeal No. 1228/2007 is preferred by the Insurance Company.
4. It is undisputed that deceased Bajirao was employed as driver on the dumper vehicle, bearing registration No. MH-18/E7190 owned by original respondent No. 1 Mahendra Agrawal. it is undisputed ::: Downloaded on - 02/08/2016 17:01:48 ::: (4) that the dumper vehicle was insured with the appellant at the relevant time. There is also no dispute about the fact that deceased Bajirao suffered massive heart-attack while he was driving the dumper vehicle on 04-06-2005 at about 8.30 a.m. during return journey from Shahada. He was shifted to a hospital without loss of much time. He died at around 10 a.m. whilst under the medical treatment in the hospital. The police station at Shahada was informed regarding death of Bajirao. An inquest panchanama was drawn. The dead-body of Bajirao was subjected to post mortem examination.
5. Briefly stated, case of the claimants was that deceased Bajirao was assigned work to transport coolies from village Lonkheda to the place of work. He was discharging the duty assigned by the Master. He received the heart-attack during course of employment when the dumper vehicle reached near village Maloni. He used to earn salary of Rs. 1750/- p.m. He was aged about 40 years at the relevant time. Consequently, the claimants, who are widow and son of deceased Bajirao, sought compensation of Rs. 3,22,297/- by applying the ::: Downloaded on - 02/08/2016 17:01:48 ::: (5) relevant factor i.e. 184.17.
6. The application was resisted by original respondent No. 1 (owner) and the appellant. They denied truth into the material averments made by the claimants.
They categorically denied that Bajirao died during course of the employment. They submitted that death of Bajirao was due to the reasons which had no nexus with the nature of employment. The appellant further asserted that the owner of the vehicle committed breach of the terms of the Insurance Policy and as such, there was no legal liability to indemnify the claims.
Consequently, the appellant sought dismissal of the applications.
7. The learned Workmen's Compensation Commissioner/Civil Judge (S.D.) held that deceased Bajirao died during course of employment with original respondent No.1. The Commissioner further held that deceased Bajirao was earning Rs. 1000/- p.m. and died of heart-attack while he was discharging the duty assigned by the employer. Hence, initially, the interim ::: Downloaded on - 02/08/2016 17:01:48 ::: (6) application was granted and compensation of Rs. 50,000/-
as provided under section 140 read with section 143 of the Motor Vehicles Act, 1988, was awarded. On merits of the matter, when the final adjudication was rendered, the learned Commissioner awarded Rs. 86,260/- with future interest at rate of 9 per cent P.A. in favour of the claimants, as stated earlier, taking view that the death occurred during course of the employment.
8. Heard learned counsel for the parties.
9. Question of significance is :
"Whether death of Bajirao had any casual connection with the nature of his employment as such and, therefore, the appellant and owner of the vehicle could be fastened with liability of the compensation under section 4 read with Schedule-IV of the Workmen's Compensation Act, and/or the interim compensation as awarded ?"
10. The pleadings of the claimants do not show any ::: Downloaded on - 02/08/2016 17:01:48 ::: (7) reference to stress and strain which was result of the nature of work assigned to deceased Bajirao. The claimants simply alleged that his death occurred during course of the employment. It is worthy to be noted that the pleadings of the claimants do not show as to how there was any casual connection between death of Bajirao and the nature of his work as a driver of the dumper vehicle. It is nobody's case that Bajirao was being required to drive the dumper vehicle No. MH-18/E7190 under odd circumstances. No medical opinion was sought in order to prove nexus between the work of driving the dumper vehicle and the heart-attack suffered by Bajirao during the transit. In other words, the claimants did not plead the facts pertaining to cause and effect. The fall-out of peculiar nature of work given tot he workman, if can be considered as cause of his death, then the interconnection between his death and the nature of work may be identified. In the peculiar facts of the present case, there is nothing in the pleadings of the claimants to show that due to nature of the work, deceased Bajirao suffered the heart-attack during the transit in the relevant morning.
::: Downloaded on - 02/08/2016 17:01:48 ::: (8)11. Coming to oral evidence of the claimants, it may be gathered that PW1 Shobhabai was unable to locate as to how Bajirao suffered the heart-attack. She admits that Bajirao suffered heart-attack in the hospital and died at about 11.00/11.30 a.m. in the morning of 4th June, 2005. It is conspicuous from cross-examination of PW2 Shivaji that Bajirao had suffered mild heart-attack on one/two occasions in the past. He admits, unequivocally, that Bajirao was obtaining treatment from medical practitioner due to the heart trouble. He further admits that Bajirao used to work as driver on daily wages. So, it is explicit that Bajirao had suffered one/two mild heart-attacks prior to the date of the incident. It is also clear that he was not employed on monthly salary basis but engaged on daily wages by the owner of the dumper vehicle. Beyond the above two oral witnesses, there is no material on record to infer that Bajirao died during course of the employment. What appears from the record is that he was already suffering from heart-disease and was taking medical treatment before the date of the incident. There is absolutely ::: Downloaded on - 02/08/2016 17:01:48 ::: (9) nothing on record to show that original respondent No. 1 (owner of the vehicle) was aware about the prior health problem of Bajirao. It has come on the record that Bajirao was working with some other persons prior to his employment wit the owner of the dumper vehicle.
Needless to say, it can not be assumed that due to hectic schedule of work assigned to him by the owner of the dumper vehicle, heart-disease was aggravated.
12. The claimants failed to establish that Bajirao received massive heart-attack during the course of his employment. As stated before, medical expert was not examined to prove that Bajirao could have suffered stress and strain as a result of the hectic schedule of heavy motor vehicle driving. Moreover, when the evidence shows that he had already suffered 1/2 heart-
attacks prior to the date of incident, it cannot be said that driving of the dumper vehicle in the relevant morning was a contributory factor which resulted into the massive heart-attack and consequently, death of Bajirao.
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13. The Apex Court in "Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and another" (AIR 2007 S.C. 248), held :
"Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work.
Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefor can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor."
14. In "Jyothi Ademma v. Plant Engineer, Nellore and another" (AIR 2006 S.C. 2830), the Apex Court, in somewhat similar situation, held that death of the workman could not be said to have been caused by any ::: Downloaded on - 02/08/2016 17:01:48 ::: ( 11 ) accident arising out of and in course of his employment.
The workman had died due to heart-attack at the working place. However, his job was only to switch on or off and there was no scope for any stress or strain in his duties. The mere fact that death did occur while discharging the duty cannot be termed as an accident arising out of and in course of his employment. The interpretation of section 3 (1) of the Workmen's Compensation Act needs to be done in consonance with the language used in sub-clause (1). The expression "by accident arising out of and in the course of employment"
as used in sub-section (1) of section 3 would make it amply clear that the nature of the work ought to be shown as cause of the death, directly or indirectly, and there must be some inter-connection between them.
Obviously, without legal proof regarding contribution of the death of Bajirao due to nature of his work given by the employer, it cannot be said that the employer and the insurer are liable to indemnify the claims. For the same reasons, they were not liable to pay the interim compensation awarded by the learned Workmen's Compensation Commissioner to the claimants. This Court ::: Downloaded on - 02/08/2016 17:01:48 ::: ( 12 ) in "New India Assurance Co. Ltd. v. Nirmalabai w/o Rajaram Gosavi and others" 2008 (6) Mh.L.J. 587, held that no interim order can be passed by the Commissioner directing the opponents to pay interim or ad hoc compensation when the accident did not arise due to use of the motor vehicle. In other words, when the provisions of "no fault liability" under section 140 of the Motor Vehicles Act cannot be invoked, in the peculiar circumstances of the present case, the interim compensation could not be awarded by the learned Workmen's Compensation Commissioner.
15. For the reasons aforestated, I am of the opinion that the learned Workmen's Compensation Commissioner committed patent error while allowing the application for interim compensation as well as the main application filed by the claimants. Hence, both the appeals are allowed. The impugned judgements and orders are set aside. The statutory deposit amount or any other amount deposited by the appellant be refunded to it. No costs.
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16. In view of disposal of first appeals, civil application No. 7273/2007 (in First Appeal No. 1228/2007) does not survive and hence, stands disposed of accordingly.
ig [ V.R. KINGAONKAR ]
JUDGE
NPJ/fa1228-07-735-09
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