Rajasthan High Court - Jaipur
Smt Shanti Devi & Ors vs Shree Ram Fertilizers on 3 December, 2013
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Misc. Appeal No.1046/1998 Smt. Shanti Devi & Anr.-Appellants Versus Shree Ram Fertilizers & Chemicals Ltd.-Respondent Date of Judgment::03.12.2013 Hon'ble Ms. Justice Bela M. Trivedi Mr. Shailesh Prakash Sharma, for appellants. Ms. Bharati Trivedi, for respondent. By the Court:-
1. The present appeal filed by the appellants-claimants under Section 30 (C) of the Workmen Compensation Act 1923 (hereinafter referred to as the said Act) is directed against the judgment & order dated 19.08.1998 passed by the Workmen Compensation Commissioner Court, Kota (hereinafter referred to as the Commissioner) in Claim Petition No.43/1993, whereby the Commissioner has dismissed the said claim petition of the appellants-claimants.
2. The short facts giving rise to the present appeal are that the appellant No.1 happened to be the wife, and the appellant No.2 happened to be the son of the deceased Jagdish Singh. They had filed the claim petition before the Commissioner under the said Act claiming compensation of Rs.58,480/- for the death of deceased Jagdish Singh, alleging interalia that said Jagdish Singh was working as the Head Cook in the canteen of the respondent's company, and on 23.10.1989 when he was discharging his duties, he sustained injuries on account of sudden falling down on the floor. It was further alleged that at the time of the said incident, the said Jagdish Singh was preparing breakfast on electric bhatti, and he suffered electric shock due to which he fell down. The said Jagdish Singh was thereafter taken to the hospital, where the doctors diagnosed that Jagdish Singh had suffered paralysis on the right side, described in medical terminology as hemipleasia. The said Jagdish Singh thereafter remained sick, and died on 10.10.1992. According to the appellants-claimants he died on account of the injuries sustained by him in the accident which had taken place during the course of his employment, and therefore, they being dependents were entitled for the compensation as claimed for. The said claim petition was resisted by the respondent-company denying the allegations made therein, and further contending interalia that the said Jagdish Singh had not suffered any injury on 23.10.1989, however he had fallen down on account of the attack of paralysis as he was not keeping good health. It was also contended that no accident as alleged had taken place on 23.10.1989 and that he had also not suffered any electric shock as alleged on the said date. The respondent had also contended that the said Jagdish Singh thereafter died on 10.10.1992 on account of his illness, and therefore the claimants were not entitled for the compensation as claimed for.
3. The Commissioner after appreciating the evidence on record, dismissed the said claim petition vide the impugned order dated 19.08.1998. Being aggrieved by the said order the present appeal has been filed by the appellants-claimants.
4. Learned counsel Mr. Shailesh Prakash Sharma, for the appellants, taking the Court to the evidence of witnesses examined by the appellants, submitted that the deceased had died on account of injuries sustained by him on 23.10.1989, when he was discharging his duties as the Head Cook in the company of the respondent, and he received an electric shock from the electric bhatti on which he was working. Mr. Sharma also submitted that a thrombosis had developed in the brain of Shri Jagdish Singh on account of his falling down on the floor, and therefore, he had suffered paralysis. Mr. Sharma, referring to the evidence of the doctors, who had treated the said Jagdish Singh on 23.10.1989, and thereafter, submitted that the blood had clotted in the brain on account of his falling down resulting into partial paralysis and the said incident having taken place during the course of his employment, the claimants were entitled to the compensation under the Workmen Compensation Act. Mr. Sharma has relied upon the decision of this Court in case of Vimla Devi (Smt.) & Ors. Versus Assistant Engineer & Anr., 2008(1) DNJ (Raj.) 455 to buttress his submissions that the deceased having suffered injuries on account of the accident which had taken place during the course of his employment, the appeal deserves to be allowed. However, the learned counsel Ms. Bharti Trivedi for the respondent, supporting the findings arrived at by the Commissioner submitted that the appellants had failed to prove that the said Jagdish Singh had received an electric shock, and therefore, he fell down. According to her, the deceased was not keeping good health, and as per the medical evidence also, he had suffered partial paralysis, which could not be attributed to his employment.
5. In the instant case, it appears that the deceased Jagdish Singh, when he was alive, had made one claim being No.41192 before the Commissioner on 06.07.1992 claiming compensation under the said Act, however the said claim petition was dismissed on 23.06.1993 as he died during the pendency of the petition. Thereafter, the appellants being the dependents of the deceased had filed the present claim petition. It further appears that in order to prove their claim, the appellants had produced number of documentary evidence as well as the oral evidence by examining the witnesses. Out of the witnesses examined by the appellants, appellant No.1 Smt. Shanti Devi had stated in her evidence interalia that after the alleged incident on 23.10.1989, there was no improvement in the health of her husband for about 15-20 days, and that he died three years after the said incident, during which period he was under medical treatment. In the cross examination, she had admitted that her husband had suffered paralysis and that there were no injuries on his body. While admitting that she had not seen any injury of electric shock on the body of Jagdish Singh, she had denied that no such electric shock was suffered by her husband while he was working. The other witness Bhawani Singh, who happened to be the son of the appellant No.1 also stated that he had not seen any injury of electric shock on the body of his father. The appellants also examined Dr. Ashok Jain, who had treated the deceased Jagdish Singh on the date of incident. He had stated in his evidence interalia that on the said date, the patient was brought as an outdoor patient and on asking about the history, the persons who had brought the said Jagdish Singh to the hospital, had told him that the Jagdish Singh had suddenly fallen down. The said doctor has further stated that on examination, it was found that the patient had suffered partial paralysis on the right side and his voice was also not clear, and that his blood pressure and her heart beats were normal. He has further stated that some blood clot in the brain was found. One more witness, Dr. C.S. Upadhyay was also examined, however he had also stated that he did not know about any injury having been suffered by the patient Jagdish Singh.
6. From the said evidence, as narrated by the Commissioner in the impugned judgment and also referred to by the learned counsel Mr. Sharma for the appellants, it clearly transpires that none of the witnesses examined by the appellants had stated that the deceased on the date of incident in question was working on electric bhatti or that he had suffered electric shock due to which he had fallen down. It also appears that the said story was neither narrated by the deceased himself when he was alive before the concerned doctors, nor any other witnesses, had stated before the Commissioner about such electric shock or any injuries suffered by the deceased on 23.10.1989. The Commissioner has therefore rightly appreciated the evidence on record and held that the said story of the deceased having received the electric shock or the injuries during the course of his employment was not proved by the appellants.
7. It further appears that the deceased was not keeping good health and he had suddenly fallen down, probably because he suffered an attack of paralysis. Dr. Ashok Jain, who treated him immediately after the incident had also stated that the Jagdish Singh had suffered the attack of partial paralysis. It is also pertinent to note that though the incident had taken place on 23.10.1989, the deceased died on 10.10.1992, and therefore it is difficult to hold that the deceased died on account of the injuries sustained by him in the accident caused during the course of his employment, for the purpose of awarding compensation to the appellants-claimants.
8. It was sought to be submitted by the learned counsel for the appellants that the deceased when he was alive was also not paid any compensation under the Employees State Insurance Act, which was applicable to the respondent-company, however the said submission cannot be accepted. As such, in view of the specific bar contained in Section 53 of the said ESI Act, the appellants cannot claim or receive the compensation under the Workmen Compensation Act or any other law for the time being in force, if the employee had sustained injuries in the accident during the course of his employment.
9. In the decision relied upon by the learned counsel for the appellants, the workman had died in the accident arising out of and during the course of his employment, and therefore, the compensation was awarded under the said Act, which is not the case in the instant case.
10. In the instant case, as observed hereinabove, the appellants had failed to prove any injuries having been sustained by the deceased on the date of incident in question, and had also failed to prove that such injuries had resulted into his death. In that view of the matter, the appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.
(Bela M. Trivedi) J.
R.Vaishnav
30. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Ramesh Vaishnav Jr.P.A.