National Consumer Disputes Redressal
National Insurance Co. Ltd. vs M/S. Ben & Thammy Catering Sercices Pvt. ... on 7 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4049 OF 2008 (Against the Order dated 28/07/2008 in Appeal No. 273/2003 of the State Commission Karnataka) 1. NATIONAL INSURANCE CO. LTD. 124,Connaught Circus New Delhi-110001 ...........Petitioner(s) Versus 1. M/S. BEN & THAMMY CATERING SERCICES PVT. LTD. No.219,Prashanthi Nilaya 5th Cross Dr.Ambedkar Marg Whitefield Post Bangalore-560066 Karnataka ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner : Mr. Kishore Rawat, Advocate For the Respondent : Mr. Robin David, Advocate
Dated : 07 Sep 2015 ORDER
Petitioner/Opposite Party has filed this petition under Section 21(b) of Consumer Protection Act, 1986 (for short, 'Act') challenging order dated 28.7.2008, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, 'State Commission').
2. Respondent/Complainant's case is, that it obtained an Insurance Coverage covering risk of catering workers at the site of General Motors India Private Limited, Chandrapura Industrial Estate, Halol, Gujarath, vide Policy dated 16.5.2006 for the period from 19.5.2006 to 18.5.2007. The said policy provided indemnity against legal liability for accident to employees under Workmen's Compensation Act, 1923 (for short, 'W.C. Act'), The Fatal Accident Act, 1855 and Common Law. On 22.11.2006, one of its employee Sanjay Chandubhai Parmar (since deceased) was talking to his superior in the working place. At that time, another employee Rajesh Amritraj, thinking that deceased was complaining against him to his superior, used criminal force against the deceased and caused several injuries. Ultimately, deceased died on 1.12.2006. Thereafter respondent being employer, deposited a sum of Rs.2,72,152/- with Commissioner for Workmen's Compensation, as per order of the Commissioner, which was ultimately paid to the legal heirs of the deceased. Thereafter, respondent approached petitioner to reimburse the said amount on the ground, that under the policy compensation paid to the legal heirs of the deceased is to be indemnified. However petitioner repudiated the claim on the ground, that death of deceased has taken place due to assault by a fellow worker and the same did not arise "out of employment". This repudiation has made the respondent to file complaint, before the District Consumer Disputes Redressal Forum, Bangalore (for short, 'District Forum').
3. Petitioner in its written version has stated, that policy was issued in favour of respondent for coverage of workmen's for the injuries suffered in the course of employment only. But herein, there is 'No nexus between the user of the policy and cause'. Petitioner issued policy to comply with section 3 of the W.C. Act, which would not extend the coverage to such murder and other deaths. Hence, it is not liable to pay any compensation/reimbursement for the murder of insured employee. Thus, there is no deficiency of service against the petitioner.
4. District Forum vide order dated 6.12.2007, dismissed the complaint.
5. Being aggrieved, respondent filed appeal before the State Commission, which allowed the same. It directed the petitioner to pay Rs.2,72,152/- to the respondent with interest @ 12% p.a. from the date of the complaint filed before the District Forum till realization. Respondent was also awarded Rs.5,000/- towards cost.
6. I have heard learned counsel for the parties and also gone through the written submissions filed by both parties and perused the record.
7. It is submitted by learned counsel for the petitioner that State Commission erred in mis-interpreting the phrase 'arising out of employment'. The death may be in the course of employment, but definitely not arising out of employment. As per the policy condition and provisions of Sec.3 of the W.C. Act, compensation is payable only if the injuries are sustained in the course of employment and under the employment. The injuries and the resultant death of the deceased employee had nothing to do with the employment. Further, it was purely a criminal act on the part of the employee in assaulting the deceased employee and therefore not incidental to the nature of job assigned to the respective employees. It is further submitted, that liability of employer would not arise merely because the employee has died in the course of employment. In order to get compensation under the W.C. Act, it is also to be proved that death was on account of the injuries sustained in the accident and which has arisen out of employment. The State Commission, therefore mis-interpreted the policy cover.
8. Learned counsel, in support of its case, relied upon following judgements;
"(i) Jyothi Ademma Vs. Plant Engineer, Nellore & another ,
(2006) 5 SCC 513;
(ii) Regional Director, E.S.I. Corporation & Anr. Vs. Francis
De Costa and Anr.,
(1996) 6 SCC 1 and
(iii)) Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali & Anr.,
IV (2006) ACC 769 (SC)"
9. On the other hand it is contended by learned counsel for respondent, that if the employee in the course of employment has to be in a particular place and by the reason of his being in that particular place, he has to face a peril then a causal connection between the accident and the employment is established. The deceased faced the peril as consequence of his being at his workplace and discharge of his duties as a waiter in the canteen and the accident would not have happened had he not been employed to work in the particular place, thus establishing the causal connection. It is further submitted, that when an attack takes place on an emplohyee while he is engaged in carrying out his day-a-day duties by a co-employee, it is considered to be incidental to the employment. The deceased was discharging his duties while he was assaulted and several injuries were inflicted upon him by another employee. It is further submitted, that deceased was discharging his duties when his co-employee, Rakesh Amritraj attacked him, thus murder is within the course of employment.
10. Learned counsel for respondent in support of its case, has relied upon the following decisions;
"(i) Public Works Department through its Chief Engineer Vs. Smt. Kausa,
AIR 1966 Madhya Pradesh 297;
(ii) State of Maharashtra Vs. Arti,
2008 ACJ 1406;
(iii)) Rita Devi (Smt) and others Vs. New India Assurance Company Ltd. and another,
(2000) 5 Supreme Court Cases 113;
(iv) Oriental Insurance Company Ltd. Vs. Phulo Devi and others,
185 (2011) Delhi Law Times 1;
(v) Param Pal Singh through Father Vs. National Insurance Company Ltd. and another,
(2013) 3 Supreme Court Cases 409 and
(vi) Maya Devi Vs. Life Insurance Corpn. of India,
III(2008) CPJ 120 (NC)"
11. The State Commission while allowing the appeal of respondent, held;
"8. It is not in dispute that the deceased employee was an employee of the complainant and he died while he was engaged in discharge of his duties in the premises belonging to the Complainant due to a criminal force and causing injury to the deceased employee on 22.11.2006 and ultimate death of the employee on 2.12.2006. The case of the Complainant is that since the said risk is covered under the Policy, it is the duty of the insurance company to indemnify the amount paid by the Complainant to the legal heirs of the deceased employee by way of compensation under the Workman's Compensation Act. In order to appreciate this contention, it is useful to refer to the policy issued by the insurance company to the complainant. The work details provided in the Policy read as follows:
"On 80 Catering Workers site at General Motors India Private Limited, Chandrapura Industrial Estate, Halol, Gujarath - 389 350"
At the bottom of the Policy under the caption "The Law", it is mentioned as follows:
"The Law This Policy provides indemnify against legal liability for accident to employees under the Workmen's Compensation Act, 1923, and subsequent amendment of the said Act prior to the date of issue of Policy, the Fatal Accident Act, 1855 and at Common Law."
One of the condition in the Policy reads thus:
"Now this Policy witnesseth that if at any time during the period of insurance any employee in the Insured's immediate service shall sustain personal injury by accident or disease arising out of and in the course of his employment by the Insured in the Business and if the Insured shall be liable to pay compensation for such injury either under the Law(s) set out in the schedule or at common Law then subject to the terms exceptions and conditions contained herein or endorsed hereon the Company will indemnify the insured against all sums for which the insured shall be so liable and will in addition be responsible for all cost and expenses incurred with its consent defending any claim for such compensation.
Exception Clause (a) in the Policy reads thus:
'The Company shall not be liable under this Policy in respect of
(a) any injury by accident or disease directly attributable to war invasion, act of foreign enemy hostilities (whether war be declared or not), civil war, mutiny, insurrection, rebellioin revolution or military or unsurped power.
From a reading of the above terms of the Policy it is clear that if any employee sustains personal injury by accident or disease arising out of and in the course of his employment while discharging the duties of the employer and this has made the insured to pay the compensation for such injury under the Laws set out in the Schedule or at common Law, subject to the terms exceptions and conditions, the Company will indemnify the insured against all sums for which the insured will be so liable. The exception is in respect of an injury or accident or disease attributable to war invasion, act of foreign enemy hostilities (whether war be declared or not), civil war, mutiny, insurrection, rebellion revolution or military or unsurped power. In the instant case, the death of the deceased employee was due to the using of criminal force by a co-employee and it does not come within the exception clause. It is also not in dispute that the Complainant has deposited a sum of Rs.2,72,152/- with the Commissioner for Workmen's Compensation payable to the legal heirs of the deceased employee under the provisions of the Workmen's Compensation Act. The only question that arises for consideration now is whether the injury suffered by the deceased employee is by accident arising out of and in the course of his employment.
12. The State Commission further held;
12. Considering the facts of the case, it is just and necessary to consider whether the death of the deceased employee was due to the accident or not. The word "Accident" is not defined under the Workmen's Compensation Act and it is also not defined under the General Clauses Act. The meaning of the word "Accident" as found in the Black's Law Dictionary is "an unforeseen untoward incident which was not reasonably anticipated. In the instant case also, it was an unforeseen untoward incident which was not reasonably anticipated by the deceased employee. The Co-employee used criminal force as against the deceased employee, thinking that the deceased employee was making certain complaints against him to his superior relating to the work entrusted to him by his employer. Therefore, it cannot be said that the said accident falls outside the course of employment. The next question is whether the said act, though illegal, arises out of employment or not. There is a duty cast upon every employee to make a report or complaint regarding the conduct of a co-employee while discharging his duties to the superior officers. Making of such reports or complaints is incidental to the duties. Therefore, it also cannot be said that the death of the deceased employee did not arise out of employment.
13. The Supreme Court in the case of M. Meckenzie V. I.M. ISSAK reported in AIR 1979 SC 1906, at para 5 has held as follows:
"To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it." The words "arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workmen would not otherwise have suffered." In other words, there must be a causal relationship between the accident and the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises "out of employment". To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act."
From a reading of the above Judgment it is clear that making a complaint against another co-employee regarding his conduct relating to the discharge of his duties comes within the ambit of causal relationship between the accident and the employment.
14. In the case of JYOTHI ADEMMA v. PLANT ENGINEER, NELLORE AND ANOTHER, reported in AIR 2006 SC 2830, the Supreme Court has observed as follows in paras 6 and 7:
"Under Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment then it can be said that the death arose out of the employment and the employer would be liable.
The expression 'accident' means an untoward mishap which is not expected or designed. 'Injury' means physiological injury. In Fenton V. Thorky & Co. Ltd. (1903) AC 446, it was observed that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A.C. in Trim Joint District School Board of Management v. Kelly (1914) AC 676 as follows:
I think that the context shows that in using the work 'designed' Lord Macnaghten was referring to designed by the sufferer."
This decision is also to the effect that if there is some causal connection between the death of the workman and his employment, then it has to be considered that the incident arises out of employment. In the instant case, as stated earlier, there is a causal connection between the death of the workman and his employment as observed by the Supreme Court in the decision referred to supra.
15. The Supreme Court in another decision in the case of REGIONAL DIRECTOR, ESI CORPORATION AND ANOTHER v. FRANCIS DE COSTA AND ANOTHER, reported in AIR 1987 SC 432 has held as follows in paragraph 11 of the decision:
"Construing the meaning of the phrase in the course of his employment, it was noted by Lord Denning that the meaning of the phrase had gradually been widened over the last 30 years to include doing something which was reasonably incidental to the employee's employment. The test of 'reasonably incidental' was applied in a large number of English decisions. But, Lord Denning pointed out that in all those cases the workman was at the premises where he or she worked and was injured while on a visit to the canteen or other place for a break. Lord Denning, however, cautioned that the words 'reasonably incidental' should be read in that context and should be limited to the cases of that kind. Lord Denning observed;
"Take a case where a man is going to or from his place of work on his own bicycle, or in his own car. He might be said to be doing something 'reasonably incidental' to this employment. But if he has an accident on the way, it is well settled that it does not 'arise out of and in the course of his employment'. Even if his employer provides the transport, so that he is going to work as a passenger in his employer's vehicle (which is surely 'reasonably incidental' to his employment). It needed a special 'deeming' provision in a statute to make it 'deemed' to arise out of and in the course of his employment."
In the said decision, the Supreme Court referred to the words of Lord Denning relating to the meaning of the phrase "in the course of his employment". In view of the said decision and the facts involved in the present case it cannot be said that the death of the deceased employee was not incidental to his services. Therefore, we are of the view that the death of the deceased employee arises out of and in the course of his employment. Therefore, the Insurance Company is liable to reimburse the amount paid by the complainant to the legal heirs of the deceased employee. The District Forum without considering this aspect of the matter has passed a very cryptic order:
16. Hence, we pass the following order:
(1) The Appeal is allowed. The impugned order is set aside."
13. In the present case, respondent in para no.5 of its complaint has averred;
"It is submitted that during the validity of the policy, on 22.11.2006, one of the employees of the complainant company by named Sanjay Chandubhai Parmar was talking to his supervisor and another employee Rajesh Amritraj thought that Sanjay was complaining about him to the supervisor and is purported to have assaulted Sanjay. It is submitted that immediately on the occurrence of the accident, vide letter dated 22.11.2006, the complainant informed the opposite party of the said accident. A copy of the said letter is herewith produced as Document No.2. It is submitted that the employee was shifted to the hospital and after a few days, despite medical treatment, the employee Sanjay died on 1.12.206, in the hospital and his death was immediately informed to the opposite party vide a letter dated 1.12.2006 and requested for a claim form for payment of compensation to be paid to the legal heirs of the deceased and also sought for the documents to be furnished to process the insurance claim."
14. The petitioner as per its written version had not given any reply to para no.5 of the complaint. Therefore, averments made by the respondent in para no.5 of the complaint, shall be deemed to be admitted by the petitioner.
15. Be that as it may, petitioner in para no.3 of its written version has taken the following defence;
"3. It is true that the complainant had preferred a claim for reimbursement of Rs.2,72,152/- towards deposited before WCC, Godhara for the death of his deceased employee (i.e. Sanjay Parmar) assaulted by his co-employee. The deceased Sanjay Parmar and his co-employee Sri Rajesh Amritraj were quarrel each other for their personal reasons and he was assaulted and due to that the Sanjay Parmar was sustained injuries and spinal cardi nerves was broken. Immediately he was shifted to Halol Hospital and again he was shifted to Godhara Hospital for better treatment and there he was succumbed to the same. Prior to the death of the deceased Sanjay Parmar, his brother had lodged police complaint against Rajesh Amritraj before Halol Police station. The Halol police had registered a case against accused in Crime No.276/2006 under section 323 and 325 of IPC. Subsequently after the death of the deceased Sanjay Parmar the Halol police filed charge sheet against accused under section 302(A) attempt to murder and case is pending for prosecution. Copies of the FIR, Complaint and Charge sheet are herewith produced as per DOCUMENT No.3, 4 and 5."
16. It is an admitted fact, that Sanjay Chandubhai Parmar-the deceased was one of the employees of the respondent. At the time when he was assaulted by the co-employee, the deceased was on duty. Thus, the deceased has suffered injuries during the course of his employment. Therefore, deceased is fully covered under the policy in question which has already been reproduced by the State Commission in its impugned order.
17. None of the judgements relied upon by counsel for petitioner are applicable to the facts of present case. In Jyothi Ademma (Supra) "the workman died of heart attack at workplace". Whereas in Francis De Costa (supra) "Injury was caused by an accident while the employee was going to his place of employment at his own bicycle". Lastly, in Shakuntala Chandrakant Shreshti (supra) "Deceased was cleaner in a vehicle and has suffered cardiac arrest and died while performing his duties".
18. Thus, deficiency on the part of the petitioner is writ large in this case. Accordingly, I have no hesitation in holding, that finding of facts recorded by the State Commission are based on correct appreciation of the evidence on record. The impugned order does not suffer from any illegality, material irregularity or jurisdictional error, which could justify intervention of this Commission in exercise of powers under Section 21(b) of the Act. There being no merit in present revision petition, the same is dismissed with no order as to cost.
......................J V.B. GUPTA PRESIDING MEMBER