Karnataka High Court
The Divisional Controller Nekrtc vs D. Kavitha W/O Sangamesh on 21 March, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 202669 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCL. FIRST APPEAL NO. 202669 OF 2022 (ECA)
BETWEEN:
THE DIVISIONAL CONTROLLER,
NEKRTC RAICHUR DIVISION, RAICHUR,
OWNER AND INSURER OF THE BUS
BEARING REG. NO. KA-36/F-1021.
...APPELLANT
(BY SRI DEEPAK V BARAD, ADVOCATE)
AND:
D. KAVITHA W/O SANGAMESH
Digitally signed
by SACHIN AGE : 25 YEARS, OCC : HOUSEHOLD,
Location: High
Court of
R/O. VEERAPUR, TQ. LINGASUGUR,
Karnataka DIST. RAICHUR,
NOW RESIDING AT
NIJALINGAPPA COLONY,
RAICHUR, DIST. RAICHUR.
...RESPONDENT
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.30(1)
OF THE EMPLOYEES COMPENSATION ACT, 1923 PRAYING TO
ALLOW THE APPEAL AND CONSEQUENTLY BE PLEASED TO
MODIFY THE JUDGMENT AND AWARD DATED 27.12.2021
PASSED BY THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE
AND JMFC AND WORKMEN'S COMPENSATION COMMISSION AT
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MFA No. 202669 of 2022
RAICHUR IN ECA NO.37/2021 BY EXONERATING THE LIABILITY
FROM THE APPELLANT ALSO BE PLEASED TO REDUCE THE
COMPENSATION SUITABLY, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR HEARING, THIS DAY
S.SUNIL DUTT YADAV, J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/Corporation has filed the present appeal challenging the order dated 27.12.2021 passed by the Workmen's Compensation Commissioner, Raichur (hereinafter referred to as 'the Commissioner' for brevity) in E.C.A.No.37/2021 whereby claim made by the wife of deceased- Sangamesh who was working as driver-cum- conductor of bus belonging to the appellant/Corporation came to be allowed in terms of Section 3 read with Section 22 of the Employee's Compensation Act and the wife of the deceased was held entitled to receive total compensation of `22,13,276/- along with interest at the rate of 12% per annum for thirty days from the date of incident till its realization.
2. The appeal has been filed with delay of 70 days. It is submitted that the delay that was caused was attributable to the verification of record and legal opinion that was obtained and forwarded to the Divisional Office at Raichur. Accordingly, -3- MFA No. 202669 of 2022 it is submitted that the delay was due to bonafide reasons and ought to be condoned.
3. Insofar as case for admission is concerned we have heard the counsel appearing on behalf of appellant/Corporation and we are of the view that there is no case made out for admission and accordingly, we have taken-up the matter for disposal itself.
4. The counsel for the appellant/Corporation Sri Deepak V.Barad has raised various contentions including that there was no nexus between the work/employment and the personal injury leading to his death, the employer cannot be held liable.
5. We have perused the order of the Commissioner. At the out-set, it has been noted that in terms of Section 30 of the Workmen's Compensation Act, the appeal could be entertained, only if there is substantial question of law involved in the appeal.
6. Parties are referred to by their rank before the Commissioner.
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7. Admittedly, deceased - Sangamesh S/o Eshappa was the husband of the petitioner and was working as driver- cum-conductor of bus bearing Reg.No.KA-36/F-1021 which belonged to the appellant/Corporation.
8. It is stated that deceased - Sangamesh while on work and when the bus was proceeding between Maski to Bagalwad at about 7.00 p.m., and the bus had reached Bagalwad village, the deceased - Sangamesh suffered pain in the chest and was given treatment and referred to the Government Hospital, Kavital for better treatment. But, however the said Sangamesh died in the Government Hospital, Kavital.
9. It is further made out from the facts as narrated by the Commissioner that the said Sangamesh was drawing a salary of `25,000/- per month with also batta.
10. The Commissioner after a detailed consideration and after framing of issues has disposed of the petition by allowing the same. The following issues were framed :-
i) Whether the petitioner proves that there was a jural relationship between the respondent and -5- MFA No. 202669 of 2022 her deceased husband by name Sangamesh and her husband died in course of said employment ?
ii) Whether the petitioner is entitled for compensation ? If so, to what extent ?
iii) What order or decree ?
11. The Tribunal has considered the material on record and has recorded the affirmative finding as regards the jural relationship between deceased-Sangamesh and the appellant/Corporation. In fact that the Tribunal refers to the evidence of RW.1 wherein there is an admission regarding jural relationship. The extract of the deposition of RW1 has been referred to in the impugned order.
12. Insofar as jural relationship is concerned there is apparently no dispute and no material has been placed even before the Commissioner to demonstrate otherwise.
13. The Tribunal has further noticed that the death occurred while the said Sangamesh was on duty. The Commissioner has placed reliance on the order passed in MFA No.201567/2017 between the Divisional Controller, NEKRTC vs. -6- MFA No. 202669 of 2022 Smt.Kiran and another, wherein this Court has disposed of an appeal where the facts were broadly similar and while interpreting the words 'accident' 'personal injury' and arising out of and during the course of employment has observed that circumstances under which heart attack to a driver/employee while driving the bus occurs would be an accident and can be held as personal injury arising out of and in the course of employment making the employer liable to pay compensation. The said order in the miscellaneous first appeal has been referred to by the Commissioner.
14. The Commissioner does notice the defence put-up that the deceased was not subjected to any stress and strain as alleged by the appellant/Corporation. However, it is observed that the appellant/Corporation has failed to elicit any evidence regarding pre-existing illness, if any, and this aspect of the matter has been referred to in para 17 of the order of the Commissioner. The Commissioner has held that the petitioner has established that her husband - Sangamesh died during the course of his employment. The Commissioner refers to the judgment in the case of Jyothi Ademma v. Plant Engineer, Nellore and another in Appeal (Civil) No.6201/2004. -7- MFA No. 202669 of 2022 Wherein it is observed that liability could not be fixed, if the workman dies as a natural result of the disease. However, the Commissioner notices that no evidence has been led to show that death was due to some other cause including pre-existing disease.
15. Insofar as issue No.2 is concerned, the Commissioner has taken note of the provision of Section 4(1) a of the Employee's Compensation Act and calculated the compensation by taking note of half the salary and multiplied by the relevant factor.
16. Learned counsel appearing for the appellant/Corporation has urged contentions regarding the wrong calculation of income and submits that exorbitant income has been taken note of. It is also contended that it cannot be said that death of the deceased was due to his employment and that heart attack could not be traced to the nature of his employment, it is further contended that the deceased had died natural death and there is no liability of the appellant/Corporation.
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17. It must be noted that for the purpose of admission of the appeal there must be a substantial question of law. The Division Bench of this Court in MFA No.201567/2017 had considered the aspect as to whether the death of a driver while on duty due to a heart attack would fall within the ambit of provisions of Section 3 of the Workmen's Compensation Act and after a detailed consideration with respect to the same, the Commissioner has held that the death due to heart attack insofar as an employee, who was on duty, would fall within the ambit of provisions of Workmen's Compensation Act. The said order in MFA No.201567/2017 has been taken-up before the Hon'ble Apex Court and SLP Civil No.29610/2021 was dismissed, affirming the order in MFA No.201567/2017. The relevant observations made by the Coordinate Bench can made use of to consider the present issue. In paragraphs 27 and 31 are extracted as follows :-
"27. It is borne out from the records that the deceased - Vijayakuar left for duty on the date of accident in the early morning at about 6:00 a.m. he was on duty continuously nearly for eleven hours as he died about 5:00 p.m. due to heart attack, which is an accident. The vehicle in question was a NEKRTC bus belonging to respondent is also not disputed. The records further indicate that deceased- Vijayakumar joined the service of appellant-Transport Corporation as a driver in the -9- MFA No. 202669 of 2022 year 1990, which is evident from Ex.P5. Therefore, for the last 22 years he was driving the bus which is admittedly a heavy motor vehicle belonging to the Transport Corporation of the appellant. It is also evident that the bus was driven in a city that too in day time. The very nature of work of the deceased that is driving heavy vehicle causes lot of stress and strain, that too in a big city like Kalaburagi which is a district head quarters. The drivers of heavy vehicle have to face lot of stress and strain because of movements large number of vehicles and public in big cities. The very nature of work of driving heavy vehicle continuously for more than 22 years definitely causes stress and strain, which is incidental to the nature of employment. It is not the case of appellants that he had any disease or he died due to some other reason. The medical reports and evidence placed by petitioners clearly indicates deceased died while on duty due to heart attack."
The conclusion relating to heart attack while on duty and it being considered as an accident and personal injury caused to him arising out of and during the course of employment is summarized in para 31, which reads as follows :-
"31. Therefore, in view of the above discussions and in the light of the principles stated in the above referred decisions, if the petitioners-claimants contentions is considered then it can be safely concluded that deceased-Vijayakumar suffered "heart attack" which is "accident" and it is "personal injury" caused to him "arising out of" and "during the course of employment".
The ingredients of Section 3(1) of the Act, 1923, are fully complied by the respondents-claimants. The appellant has failed to show any grounds for interference by this Court. Keeping in mind the object and reasons for enacting the Workmen's Compensation Act, which is a social welfare
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MFA No. 202669 of 2022legislation meant for welfare of employer and employees, if the evidence placed before the Court, in the light of the well established principles regarding appreciation of evidence in such cases, then it is evident that the appeal being devoid of merits is liable to be dismissed. Hence, the substantial question of law is answered in Affirmative."
18. Subsequently, following the order passed in MFA No.201567/2017, MFA No.200660/2023 has also been disposed of, though as on date, orders still awaits to be uploaded. However, this Court while disposing of MFA No.200660/2023 has followed the order in MFA No.201567/2017. In light of the question being settled that the death of an employee while on duty could be construed having nexus with the course of employment in identical facts as in MFA No.201567/2017, we find that the said issue in identical facts has been settled and having been affirmed by the Hon'ble Apex Court, it cannot be stated that before this Court, substantial question of law has been made out warranting admission of the appeal.
19. The only factual difference appears to be that in the present case the deceased was a Conductor, however, it is not in dispute that his designation was that of a driver-cum- conductor and in the present case, he suffered a heart attack while performing duty of a conductor. Even before the
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MFA No. 202669 of 2022Commissioner, no evidence was led in to show that the deceased had any pre-existing heart ailment. If that were to be so, the appellant/Corporation has failed in demonstrating that the accident of heart attack resulting in personal injury leading to his death was due to some cause other than that which is linked to his employment. Work being stress-full by nature in case of drivers and conductors of transport/Corporation buses it could be inferred reasonably in the ordinary course of things that heart attack while on duty could be traced to the nature of employment. Accordingly, we find no substantial question of law warranting admission and accordingly, the appeal is dismissed.
20. The delay is condoned accepting cause shown without notice. In light of no case being made out for admission, accordingly, I.A.No.1/2022 is allowed.
Sd/-
JUDGE Sd/-
JUDGE SN List No.: 1 Sl No.: 28