Gujarat High Court
Chief vs Kukabhai on 1 February, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/413/2008 2/ 32 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 413 of 2008
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CHIEF
SECRETARY & 2 - Appellant(s)
Versus
KUKABHAI
DEHARBHAI - Defendant(s)
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Appearance
:
MR
AL SHARMA AGP for
Appellant(s) : 1 - 3.
None for Defendant(s) : 1,
MR KISHOR M
PAUL for Defendant(s) : 1.2.1,1.2.2
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 01/02/2010
ORAL
ORDER
1. Heard Mr.A.L.Sharma learned AGP appearing on behalf of appellants and learned advocate Mr.Kishor M. Paul for respondents claimants.
2. In present appeal, the appellants have challenged judgment and order passed by learned W.C.Commissioner, Rajkot in WC (Fatal) Case No.39 of 1999, dated 29.3.2007, whereby, the learned W.C.Commissioner, Rajkot has awarded Rs.1,32,174/- with 6% interest in favour of claimants. The appellants have deposited Rs.1,93,716/- before learned W.C.Commissioner, Rajkot and receipt dated 12.12.2007 is placed on record.
3. Mr.A.L.Sharma learned AGP has raised contention before this Court that son of the opponents original claimants was working with the present appellants. The opponents' son was working as a temporary watchman and labourer to cultivate the plants in the jungle and it was a seasonal work. That on 2.7.1997, the son of opponents died of unnatural death either by accident or by bite of some insect and as a result of unnatural death of Gordhanbhai, claim petition was filed before learned W.C.Commissioner, Rajkot claiming Rs.2,20,597.47 ps. The claimants have produced certain documents before learned W.C.Commissioner, Rajkot. The written statement was filed vide Exh.12 by present appellants where appellants have denied contentions and averments made in claim petition. The main contention which was raised by appellants that opponents claimants have failed to prove that they were the legal representatives of deceased and another important contention was that deceased was murdered and further contention is taken by appellants that there is no relationship of employer and employee exists.
3.1 Mr.Sharma learned AGP submitted that claimants failed to prove that their son was working as a workman covered by definition in Workmens' Compensation Act,1923 (for short the Act ). It is admitted in FIR that deceased was working as temporary and for seasonal work and case of permanence is pending before the Court. This fact is not taken into consideration by learned W.C.Commissioner, Rajkot. He also submitted that substantial question of law involved in present appeal as important contention is that according to Section-3 of the Act, the employer is liable to pay the compensation only in case of accidental death but, till date the exact cause of death is not disclosed and if the cause of death would not be accidental, then employer is not liable to pay compensation under the provisions of the Act. He also raised contention that learned W.C.Commissioner, Rajkot has not properly considered the definition of 'workman' given in the Act and deceased cannot be considered as 'workman' and therefore, claimants are not entitled any amount of compensation. From the FIR filed by claimants it clearly appears that deceased was working for seasonal and temporary work with appellants and case to make permanent is pending before the Labour Court. But these documentary evidence on record are not properly considered by learned W.C.Commissioner, Rajkot. In short, his submission is that FIR produced on record was not considered by learned W.C.Commissioner, Rajkot.
4. Mr.Kishor M. Paul appearing on behalf of respondents claimants submitted that deceased was a workman working with appellants and he satisfied the definition of ' workman' given in the Act. He also submitted that deceased was aged about 25 years working as a watchman / labourer with appellants which fact has been admitted by appellants in written statement. He further submitted that on behalf of claimants, Kukabhai Deharbhai was examined vide Exh.12 and on behalf of opponents, Shri Vallabhbhai Jerambhai Bhimani. The police papers were produced by claimants vide Exh.18 as Exh.31 to 109 and claimants have proved the fact that deceased was son of claimants, against which no rebuttal evidence was produced by appellants. Therefore, Mr.Paul submitted that claimants were dependents of his son. He also submitted that in written statement filed before learned W.C.Commissioner, Rajkot by appellants vide Exh.12, appellants admitted that deceased was working as a watchman and receiving salary as per Minimum Wages Act and having relationship as an employer and employee has been proved. He further submitted that at the time of death he was found from work place and therefore, learned W.C.Commissioner, Rajkot has considered this fact and as per evidence of witness of appellants Shri Vallabhbhai Jerambhai at Exh.112 that deceased was employed by appellants on 2.7.1997, coming on duty / job in morning, remained in duty upto 4.00 p.m. and thereafter, what happened with the deceased, he is not aware about the subsequent facts. The deceased died on 2.7.1997 after 4.00 p.m. but, on which time he died and how he has been died, for that witness was not aware about having any information. He also submitted that even there is no medical opinion or PM report which suggest that for what reason the deceased died or what is the cause for death. The death certificate was produced on record vide Exh.20. Therefore, he submitted that claimants proved their case properly which has been rightly considered by learned W.C.Commissioner, Rajkot. Therefore, no error is committed which requires interference by this Court. He also submitted that no substantial question of law has been raised in first appeal and therefore, under Section 30 of the Act is not maintainable. He also submitted that at the time of admitting the appeal, this Court has not framed any substantial question of law for deciding first appeal. Therefore, present first appeal is required to be dismissed only on that ground.
5. I have considered submissions made by both learned advocates and also perused the judgment and order passed by learned W.C.Commissioner, Rajkot. The claimants Shri Kukabhai Deharbhai is the father and Jivuben Kukabhai is the mother of deceased. The deceased was working with respondent Nos.1, 2 and 3 for more than 5 years in Jambudiya Village near Jivapar Forest as a Watchman and labourer. He was receiving salary of Rs.56.50 ps. minimum wages from appellants. On 2.7.1997, he was on duty with respondent No.3 and on the said day, he died and his dead body was found on 3.7.1997. At that time, there was blood found from mouth, right ear and also having some injury in left side ribs of dead body. There were also injury other parts of body viz. Left leg and other injuries on various parts of the body. Therefore, two presumptions have been arrived either he may have died during course of employment due to bite of insect or it may happen that he was murdered by somebody and for that, a complaint was filed before Vankaner Police Station. The claimants were dependents of deceased and he was aged about 25 years, receiving monthly salary of Rs.1695/- and claiming compensation of notice dated 23.12.1997, which notice was received by appellants, to which no reply was given and no compensation was paid, though accident took place during course of employment at the site of work place. The reply was filed by appellants before learned W.C.Commissioner, Rajkot denying averments made in claim petition. But deceased was employed by appellants and was working with appellants as a watchman and receiving salary / wages from appellants. The issues have been framed by learned W.C.Commissioner, Rajkot vide Exh.8. Certain documents have been produced by claimants after evidence of Kukabhai vide Exh.12. The FIR has been produced on record vide Exh.18, Inquest Panchnama was produced vide Exh.19, death certificate vide Exh.20, birth certificate vide Exh.21, pay slip vide Exh.22 and notice sent through post and therefore, postal receipt was produced vide Exh.23 and such notice was received by appellants, acknowledgment thereof is produced on record vide Exh.24. An FIR lodged at Vankaner Police Station vide Exh.31 and all papers are produced upto Exh.109. Thereafter, closing pursis was filed by claimant vide Exh.110 and amount of penalty has not been pressed by claimant vide Exh.114. Vide Exh.112 evidence of opponent's witness Shri Vallabhbhai J. Bhimani. Thereafter, closing pursis of appellant vide Exh.113. Thereafter, issues have been decided by learned W.C.Commissioner, Rajkot. On basis of evidence of claimants, Exh.17, chief examination of claimants and cross-examination by advocate of appellants and considering Exh.18 and Exh.31 to Exh.109, no rebuttal evidence produced on record by appellants before learned W.C.Commissioner, Rajkot and therefore, learned W.C.Commissioner, Rajkot has come to conclusion that claimants are dependents and deceased was son of claimants. Therefore, they are entitled to file claim petition. While deciding Issue No.2, learned W.C.Commissioner, Rajkot has considered admission made by appellants in written statement that deceased was working with them as a labourer / watchman, receiving salary / wages as per Minimum Wages Act and pay slip was also produced on record. Therefore, considering evidence of claimants as well as cross-examination and evidence of appellants' witness Shri Vallabhbhai Jerambhai, learned W.C.Commissioner, Rajkot has come to conclusion that deceased was 'workman' working with appellants. It is necessary to note at this stage that no specific contention was raised by appellants before learned W.C.Commissioner, Rajkot that deceased was not covered by definition of 'workman' under Section 2(1)(n) of the Act. Definition of 'workman' provides that if any person employed in such capacity as is satisfied in schedule II, whether the contract of employment was made before or after the passing of this Act. Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them.
Therefore, considering schedule attached to the Act, the nature of work and status of deceased covered by second schedule. Therefore, deceased was workman satisfied definition given under the Act. Therefore, claimants are entitled compensation from appellants. It is clear that no such contention was raised in written statement by appellants vide Exh.12. It is also necessary to note that witness Vallabhbhai Jerambhai was examined by appellants vide Exh.112, who has also not deposed before W.C.Commissioner that deceased was not covered by definition of 'workman' under Section 2(1)(n) of the Act. However, considering second schedule read with Section 2(1)(n) of the Act, deceased was workman satisfying the definition.
5.1 I have perused written statement vide Exh.12 filed by appellants before W.C.Commissioner. Even in that written statement also, no such contention was raised by appellants that deceased was not covered by definition of 'workman' given in Section 2(1)(n) of the Act. Therefore, W.C.Commissioner has rightly come to conclusion on basis of pay slip as well as evidence of witness Vallabhbhai Jerambhai and evidence of claimants. Therefore, Issue No.2 has been rightly decided by W.C.Commissioner.
6. The evidence of claimants supported the averments made in claim petition. In cross-examination of claimants, the deceased was daily and normally coming back to home by 7.30 p.m. However, on 2.7.1997 he did not come to home, therefore, it was presumed by claimants that he must have been retained by appellants for further work. The evidence of claimants also suggests that normally in case of workload, deceased remained continued on work about 2 to 4 days. Therefore, it was presumed by claimants that he must have been engaged in work, therefore, he had not come back to home. Thereafter, claimants have inquired from the appellants going to Jivapar Forest. At that occasion, dead body of deceased was found and it was found on work place where he was working. The PM report was received from Civil Hospital, Jamnagar and according to evidence of witness of appellants, Shri Vallabhbhai Jerambhai at Exh.112, the deceased was on duty on 2.7.1997 and reported at work in morning and was working upto 4.00 p.m. Thereafter, what happened with the deceased, the witness was not aware about that fact. But one fact is clear that either he was murdered or death caused due to bite of insect after 4.00 p.m. on 2.7.1997. The said witness also admitted that dead body was found from work place where he was performing his duty. Therefore, on date of death, deceased was on duty and died during course of employment. Therefore, W.C.Commissioner has considered police papers from Exh.31 to 109 and also PM Note at Exh.106 which was carried out on 4.7.1997 and according to report given by Medical Officer in postmortem that period of death is prior to 48 hrs. to 72 hrs. means considering date of death 2.7.1997 it comes to 72 hrs. Therefore, deceased died on 2.7.1997 on the date on which he was on duty. The report of analyst of dead body of vishera is at Exh.109 and no real cause of death has been given in Exh.109. Therefore, W.C.Commissioner has rightly come to conclusion on basis of evidence of both sides and also considering police papers and PM report and vishera chemical analysis report that on date of death as per Exh.20 death certificate, the deceased died during course of employment and accident has arisen during course of employment while performing duty at the place where he was posted by appellants.
7. The contention which has been raised by learned AGP Mr.Sharma that deceased was temporarily employed or casual employee.
7.1 Even temporary or causal workmen are also covered in definition of 'workman' under Section 2(1)(n) of the W.C.Act while considering decision reported in 2010 I CLR 156.
8. Mr.A.L.Sharma learned AGP has not raised any contention about compensation which has been worked out by W.C.Commissioner. However, considering wage slip and age of deceased as 25 years, the daily wage comes to Rs.46.55 ps. and total working days are 26, therefore, monthly wages comes to Rs.1210/- and considering 24 years age, against which no rebuttal evidence produced by appellants. Therefore, relevant factor 218.47 has been considered, 50% amount comes to Rs.605/- calculated with relevant factor then it comes to Rs.1,32,174/-. The claimants have not claimed penalty amount from appellants vide Exh.114. Therefore, on that basis, the W.C.Commissioner has examined the matter and accordingly, judgment and order has been passed.
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.
10. Learned advocate Mr.Paul has also relied upon decision of 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. Emphasised 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. Learned advocate Mr.Paul also raised contention before this Court that no substantial question of law has been involved in present first appeal and even this Court has also not framed the substantial question of law while admitting the first appeal.
11.1 I have considered submissions made by learned advocate Mr.Paul. 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.23, 24 and 27 to 29 which is quoted as under :
23. The Madras High Court in case of Oriental Insurance Company Limited v.
Nagaraj and Others reported in 2008-III LLJ 61 (Madras) has held that appreciation of evidence and finding of fact by Commissioner not to be interfered by High Court as no substantial question of law involved. The relevant Para 15, 16, 19 to 22 are quoted as under :
15. As held by the Supreme Court in Mackinnon Mackenzie and Co. (P) Ltd. v.
Ibrahim Mahmmed Issak (supra), at p.19 of 1970-I-LLJ-16 :
6. Although the onus of proving that the injury by accident arose out of and in the course of employment rests upon the applicant, these essentials may be inferred when the facts proved justify the inference. On the one hand, the Commissioner may not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it.
16. It is also relevant to refer to Division Bench of this Court in Shanmuga Mudalian v. Noorjahan 2003-I-LLJ-776 (Mad). The question in the Appeal decided by the Division Bench was, whether the death of the workman, driver of a bus, due to heart failure was caused because of the heavy strain of employment. The following observation of the Division Bench at page at p.777 of LLJ :
4.
...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 arose out of and in the course of the employment.
19. I do not propose to go into the factual details of these cases suffice to note that strain, even normal strain, connected with the employment, was the reason for the death of workman. In the circumstances of the case and nature of work, normal strain contributed to the death. It falls within the purview of arising out of and in the course of employment contained in Section 3 of the Act. The provisions of Workmen's Compensation Act should be broadly and liberally construed in order to effectively apply the provisions of the Act.
20. The learned counsel for the respondent claimant has drawn the attention of the Court to the Statement of Objects and Reasons articulated at the time of moving Appeal for Workmen's Compensation Act which ultimately resulted in passing of the Act. The objects and reasons of the Act are stated as follows :
The growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen, along with the comparative poverty of the workmen themselves, renders it advisable that they should be protected, as far as possible from hardship arising from accident.
21. The aforesaid extract from the State of Objects and Reasons for passing of the Act clearly indicates that :
The general principles of workmen's compensation command almost universal acceptance, and India is now nearly alone amongst civilized countries in being without legislation embodying these principles. For a number of years the more generous employers have been in the habit of giving compensation voluntarily, but this practice is, by no means, general. The growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen, along with the comparative poverty of the workmen themselves, renders it advisable that they should be protected, as far as possible, from hardship arising from accidents.
22. Liberal construction of the provisions should be adopted for the provisions which govern the nature and determination of the injuries for which compensation may be had. There is no reason for taking a narrow view.
24. The Madras High Court has also considered the same view in another case of National Insurance Co. Ltd., Bhavani v. A. Saroja & Ors. reported in 2008 III CLR 664. The relevant Para 20 is quoted as under :
20. Bearing in mind the above stated, I am of the considered view that the judicial pronouncements made this subject clear. Even an ordinary strain in given circumstances of the case would be enough to cause the injury or death which is found to be in the course of and out of employment, it has to be held that the claimant is entitled for the compensation. The claimant is expected in law to show that the workman suffered injury or death due to strain and stress drawn from the work which in particular circumstance was sufficient to cause injury or death and unlike in a criminal case it is enough to show the preponderance of probabilities which would form a premise that the claimants version is probable. It is not necessary to prove that the injury or death was caused by the stress and strain beyond any doubt but it must be shown and the materials brought before the court shall be, to the satisfaction of the Court.
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.
12. In view of aforesaid observations made by this Court and considering contentions raised by learned AGP Mr.Sharma and learned advocate Mr.Paul and also after perusing judgment and order passed by W.C.Commissioner, Rajkot, according to my opinion, the facts which are proved before W.C.Commissioner that deceased was a workman working with appellants at the time when he died. On 2.7.1997 he was on duty as per evidence of witness of appellants remain on duty upto 4.00 p.m. Thereafter, what happened to the deceased, nobody was able to give details or information and even the medical papers are silent. The facts admitted by the witness of appellants that dead body was found from work place. Meaning thereby that deceased died during course of employment and he was workman within the meaning of Section 2(1)(n) of the W.C.Act and there was sufficient evidence to establish that relationship between appellants and deceased as an employer and employee. Therefore, provisions of Section-3 of the W.C.Act are squarely applicable to facts of present case and appellants being employer is duty bound to pay compensation as worked out by W.C.Commissioner. The W.C.Commissioner has rightly examined evidence which are on record and finding of fact which has been given by W.C.Commissioner cannot be said to erroneous and finding is also not baseless and perverse and therefore, no interference is required by this Court. The substantial question of law is also not involved in this first appeal and even not raised in first appeal and even not argued by learned AGP Mr.Sharma before this Court. Therefore, in absence of substantial question of law, even otherwise the appeal is required to be dismissed. Therefore, there is no substance in present appeal. Accordingly, present first appeal is dismissed. R & P be sent back immediately.
13. The W.C.Commissioner, Rajkot is directed to pay Rs.1,93,716/- with accruing interest, if any, to Kukabhai Deharbhai father of deceased by account payee cheque immediately after proper verification in presence of Advocate, who appeared on behalf of claimants before W.C.Commissioner.
(H.K.RATHOD,J.) (vipul) Top