Bombay High Court
Smt. Ashabai Bhimrao Bomborde And 2 ... vs The Divisional Controller, ... on 22 January, 2019
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
20-J-FA-497-17 1/6
/IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.497 OF 2017
1. Ashabai Bhimrao Bamborde
Aged about 41 years. Occ. Housewife
2. Pankaj Bhimrao Bamborde
Aged about 21 years, Occ. Education
3. Nikhil Bhimrao Bamborde
Aged about 19 years. Occ. Education
R/o Ner, Post Ner Tq. Ner
Dist. Yavatmal ... Appellants.
-vs-
The Divisional Controller
Maharashtra State Road Transport Corporation
Divisional Office, Arni Road,
Yavatmal Taq. And Dist. Yavatmal. ... Respondent.
Shri R. S. Nagpure, Advocate for appellants.
Shri V. H. Kedar, Advocate for respondent.
CORAM : A.S.CHANDURKAR, J.
DATE : January 22, 2019 Oral Judgment :
In view of notice for final disposal issued earlier, this appeal under Section 30 of the Employees Compensation Act, 1923 has been heard on the following substantial question of law :
" Whether the learned Commissioner has correctly applied the legal principles while coming to the conclusion that there was no ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 01:29:25 ::: 20-J-FA-497-17 2/6 casual connection between the ailment suffered by the deceased during the course of his employment and discharge of his duties ?"
2. The appellants seek compensation for the untimely demise of the husband of appellant No.1 who was employed as a bus Conductor with the respondent-Corporation. It is the case of the appellant that on 30/06/2012 the husband of appellant No.1 was on duty on the bus from Yavatmal to Chikhaldara. The bus reached Chikhaldara at night and had a halt there. At about 1 am the husband of appellant No.1 suffered a heart attack and succumbed to the same. On that basis the appellants made an application under Section 22 of the said Act for grant of statutory compensation.
3. The respondent-Corporation did not contest the proceedings by filing any reply. The appellant No.1 examined herself and placed on record various documents which included the salary slip of the deceased along with the police papers. She was not cross-examined by the Corporation. After considering the said evidence on record the learned Commissioner held that in absence of any casual connection between the factor of the deceased suffering a heart attack and duty being done by him, it could not be said that the death occurred in the course of employment. On that basis the application for grant of compensation was dismissed. Being aggrieved the appellants have filed the present appeal.
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4. Shri R. Nagpure, learned counsel for the appellants submitted that from the facts on record it was evident that the death occurred during the course of employment and on account of strain of work. The deceased was on duty when the bus travelled from Yavatmal to Chikhaldara and the fact that he suffered a heart attack at Chikhaldara at about 1 am indicated that death caused on account of the job done by the deceased. Placing reliance on the decisions in United India Insurance Co. Ltd. vs. Radhabai wd/o Marotrao Kharate and ors. 2008(2) Mh.L.J. 741, Mines Manager vs. Waheedul Haque Abbasi (1994) ACJ 334, Depot Manager, APSRTC, Karimnagar vs. Gurrapu Anjamma (2001) ACT 1885, Bhavnagar Municipal Corporation vs. Bhanuben Maganbhai Havalia (2009) 2 AICJ 67, Param Pal Singh Thr. Father vs. National Insurance Co. and anr. 2013(3) Mh.L.J. 934 and judgment of Jammu and Kashmir High Court in United India Insurance Co. Ltd. vs. Inderjeet Kour and ors. in M.A. No.636/2010 dated 20/08/2018, it was submitted that on account of stress and strain that was caused while discharging duties, the deceased suffered a heart attack. He submitted that the learned Commissioner did not consider the material on record and proceeded to dismiss the claim for compensation.
5. Shri V. H. Kedar, learned counsel for the respondent on the other hand submitted that there was no nexus between the cause of death of the deceased and the nature of duties discharged by him. There were no ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 01:29:25 ::: 20-J-FA-497-17 4/6 pleadings in the claim application that on account of any strain and stress in the discharge of duties the death was caused on account of suffering the heart attack. The burden to prove the same was on the appellant but in absence of any pleadings and evidence it was rightly held by the learned Commissioner that the appellants were not entitled for compensation. He placed reliance on the decision in Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali and anr. 2007 ACJ 1 and Ram Dev Puri vs. Trishla Devi and ors. 2011(3) T.A.C. 902 (H.P.).
6. I have heard the learned counsel for the parties on the aforesaid substantial question of law. I have perused the records of the case. The employment of the deceased with the respondent Corporation on the post of Conductor is not in dispute. In paragraph 2 of the claim application it has been stated that on 30/06/2012 the deceased was on duty as a Conductor on the bus from Yavatmal to Chikhaldara. After reaching Chikhaldara, the deceased got chest pain at about 1 am and as a result of the same, he suffered a heart attack and expired on the way to the hospital. The death occurred at 2.30 am. In her deposition at Exhibit-7 the appellant No.1 reiterated the statements made in the claim application. The documents placed on record are the First Information Report at Exhibit-12 , Inquest Panchanama at Exhibit-13 and the Post Mortem report at Exhibit-14. This is the material on record.
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7. In Shakuntala Chandrakant Shreshti (supra) the Honourable Supreme Court while considering the question with regard to entitlement for compensation on account of death occurring when the deceased was on duty observed that the question to be considered is whether the death occurred in the course of and out of employment. It was emphasised that for attracting the provisions of Section 3 of the said Act, it must be shown that an injury was caused to the workman, such injury must have been caused by an accident and that it arose out of or in the course of employment. It is only when these three aspects are present that the compensation can be awarded. In that case it was noted that the deceased had suffered a heart attack but there was no allegation that the deceased met with death by reason of any strain of work and that such strain during discharge of services caused his death. It was necessary to satisfy the requirements of the expression "out of employment". There has to be a proximate nexus between the cause of death and employment. On that basis compensation was denied to the claimants therein.
8.. In the present case there are no pleadings whatsoever that due to strain and stress in the discharge of duty, the deceased suffered a heart attack. In the decisions relied upon by the learned counsel for the appellants it was observed that the death had occurred during the discharge of duties and on account of stress and strain on the basis of evidence on record. In ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 01:29:25 ::: 20-J-FA-497-17 6/6 Radhabai Kharate (supra) the widow of the deceased has specifically deposed that her husband was having sound health and he did not have any problem of his heart earlier. Medical certificates to that effect were also placed on record. In the present case, there is no such evidence on record. Thus in absence of any material on record to indicate the connection between the accident and the employment resulting in death of the deceased, no fault can be found with the impugned judgment. There is no material even to proceed on the basis of preponderance of probability to accept the case of there being any connection between the death of the deceased and same being on account of strain of work. The substantial question of law as framed is answered by holding that the learned Commissioner had rightly applied the legal principles while concluding that there was no casual connection between the ailment suffered by the deceased during the course of his employment. As a result the judgment of the learned Commissioner in Claim Application No.14/2013 stands confirmed. The First Appeal is thus dismissed with no order as to costs.
JUDGE Asmita ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 01:29:25 :::