Andhra Pradesh High Court - Amravati
The Oriental Insurance Co. Ltd., vs Smt. Pasupuleti Vijaya Lakshmi on 14 December, 2023
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
C.M.A.No.75 of 2019
JUDGMENT:
The Appellant herein filed this Appeal under Section 30 of Workmen's Compensation Act, against the Order and Decree dated 15.09.2017 passed in W.C.No.14 of 2011 by the Court of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Gudiwada, (in short 'learned Tribunal') whereby the learned Tribunal has granted a total compensation of Rs.3,38,880/- for the death of the deceased due to heart attack during the course of his employment.
2. The appellant herein is the 2nd opposite party; 1st respondent herein is the applicant; respondents 2 to 4 are the legal representatives of the deceased Nageswar Rao and 5th respondent herein is the 1st opposite party before the learned Tribunal.
3. The 1st respondent/ applicant has filed a claim petition before the tribunal alleging that on 24.02.2010 the deceased workman as a driver, during the course of his employment, he was suffered stress and strain to unload the parcel and all of sudden the deceased was attacked with heart attack. As a result of which the workman shifted to the MKCG Government 2 Dr.KMR, J CMA.No.75 of 2019 Hospital, Orissa for treatment, where the doctors are declared that the deceased was died on 26.02.2010. A case in Crime No.50 of 2010 was registered by Berhampur Police Station. Therefore, the 1st respondent approached the appellant/ 2nd opposite party and 5th respondent with a request to pay compensation, but in vain. Hence the applicant/ 1st respondent have approached the Tribunal.
4. The 2nd opposite party before the tribunal have filed counter denying all material allegations made in the claim petition and mainly contended that the death of deceased driver was not occurred due to accidental injuries, the alleged heart attack is not an accidental injury and there is no stress and strain at the time of death of the deceased. Therefore this appellant is not liable to indemnify the liability of the 5th respondent/ 2nd opposite party and that the claim petition is liable to be dismissed.
5. Basing on the pleadings, the learned Tribunal has framed the following issues viz.,
1) Whether the deceased Sri Pasupuleti Nageswara Rao was a workman U/s.2(1)(n) of the Workmen's Compensation Act at the time of his death? And whether the deceased had died during and out of the course of employment?
3 Dr.KMR, J CMA.No.75 of 2019
2) Whether or not the deceased suffered with stress and strain before his death due to heart attack?
3) If so, what is the age and wage of the deceased at the time his death?
4) What is the quantum of amount of compensation that the applicants eligible?
6. During the course of trial, the 1st respondent was examined as AW-1 and got marked Ex.A1 to A8 and none examined on behalf of the appellant / 2nd opposite party or 5th respondent/ 1st opposite party, but marked True copy of Policy as Ex.B1.
7. Learned Tribunal, after hearing on both sides passed an order holding that the opposite parties 1 and 2 are jointly and severally held liable to pay the compensation of Rs. 3,38,880/- to the applicant i.e 1st respondent. Assailing the same, the present C.M.A came to be filed by the appellant/ 2nd opposite party.
8. Heard Mr. Krishnanand, learned Counsel for the Appellant and Mr. S. Bala Mohan Ranga, learned Counsel for the respondents.
9. During hearing learned counsel for the appellant would contend that the learned Tribunal ought to have saddled the 4 Dr.KMR, J CMA.No.75 of 2019 liability to pay compensation of Rs. 3,38,880/- to the 1st respondent. The court below failed to appreciate that no legal fiction can be raised that the deceased died of heart attack in the course of employment is attributable to the stress and strain during the course of his employment. The 1st respondent failed to establish that the death was caused by reason of failure of heart and is because of the stress and strain of the work. There is no medical evidence to prove the nature of death of the deceased. But the learned tribunal without considering these aspects and went wrong presumption that the deceased died of heart attack due to stress and strain, during the course of employment is not at all correct. Therefore, the appellant is not liable to pay any compensation to the respondents 1 to 4 and requested to allow the appeal.
10. During hearing learned counsel for the respondents reiterated the contents urged before the learned tribunal and vehemently opposed to allow the appeal, as the learned tribunal rightly taken into consideration of all the aspects and considering the both documentary and oral evidence. The appellant has not adduced any evidence to substantiate their case before the learned tribunal, except marking Insurance 5 Dr.KMR, J CMA.No.75 of 2019 Policy as Ex.B1. Therefore there is no need or necessity to interfere in the impugned order passed by the learned tribunal and that the appeal is liable to be dismissed.
11. Perused the record.
12. In the instant case, the deceased was died due to heart attack during the course of employment as documents, which are marked as Ex.A1 to A8. It is the contention of the 1st respondent that the deceased attended his duties without any interruption and the deceased suffered due to regular long services all the way from Vijayawada to Bhubaneswar, the deceased felt very stress and tidiness to upload the parcel in the meantime and the deceased reached Berhampur and all of sudden suffered by heart attack due to stress and strain. As per issue No.2, the worker's suffering from stress and strain, during the duty, the driver started his duty on 24.06.2010 and continuously on duty till 26.06.2010 i.e 3 days, due to which there is possibility of suffering strain and stress by the deceased. Therefore the learned tribunal holding that the deceased died during the course of his employment and cause of death is also proved.
6 Dr.KMR, J CMA.No.75 of 2019
13. During the course of hearing learned Standing Counsel for the appellant placed on record the decision of Hon'ble Apex Court in "Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and Another"1 wherein it was held as follows:
"Only because the cause of death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting in injury.
The nature of duty of the deceased was that of a helper. Per se that the duties would not be such which could cause stress or strain. If an additional duty were required to be performed by him, the same was required to be clearly stated.
Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well-settled that for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question.
Section 30 of the said Act postulates an appeal directly to High Court if a substantial question of law is involved in the appeal.1
Indian Kanoon-http://indiankanoon.org/doc/405550/ = Appeal (Civil) No.4778 of 2006, dt.10.11.2006 7 Dr.KMR, J CMA.No.75 of 2019 A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain. It was merely stated that he was working as a Khalasi in a truck which was going to Tavarewadi Village from Kolhapur to get the milk. The autopsy was conducted at Chandgad District Hospital. The driver Prashant Chandrakant Shreshti admittedly brought him to hospital. He was his brother. The post mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day. From the post mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a causal connection between accident and serious injury so as to fulfill the requirements of the terms "out of employment". Indisputably, there has to be an proximate nexus between cause of death and employment. A stray statement made by Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination".
14. Learned counsel for the appellant vehemently argued that in view of the ratio as laid down by the Hon'ble Apex Court 8 Dr.KMR, J CMA.No.75 of 2019 cited supra, the Insurance Company i.e appellant herein is not liable to pay any compensation to the respondents 2 to 4. So also, argued that the compensation awarded by the learned Tribunal is highly excessive and exorbitant.
15. Upon perusal of the impugned Award would show that the learned tribunal has not applied properly the ratio while assessing the compensation is within the parameters of the Workmen's Compensation Act, 1923. Therefore the impugned order is cryptic and warrants interference. The decision cited supra is squarely applicable to the facts of the instant case. Following the said decision, this Court is inclined to allow the C.M.A.
16. Having regard to the facts and circumstances of the case, upon perusal of the material available on record and considering the submissions of the both the counsel, the C.M.A is allowed, while setting aside the impugned order and decree dated 15.09.2017 passed by the Tribunal. The appellant herein has deposited an amount of Rs. 3,38,880/- before the learned Tribunal before filing the Appeal as per Memo dated 29.11.2017. The same shall be withdrawn by the appellant by 9 Dr.KMR, J CMA.No.75 of 2019 filing proper application before the learned tribunal. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
________________________________ Dr.JUSTICE K. MANMADHA RAO Date 14.12.2023.
KK 10 Dr.KMR, J CMA.No.75 of 2019 THE HON'BLE Dr.JUSTICE K. MANMADHA RAO C.M.A.No.75 of 2019 Date: 14.12.2023.
KK