Karnataka High Court
The Divisional Controller Nekrtc vs Jayashree W/O Mallikarjun Chalageri ... on 9 March, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 200660 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO.200660 OF 2023 (ECA)
BETWEEN:
THE DIVISIONAL CONTROLLER,
NEKRTC, DIVISIONAL OFFICE,
ATHANI ROAD, VIJAYAPURA.
...APPELLANT
(BY SRI DEEPAK V.BARAD, ADVOCATE)
AND:
1. JAYASHREE W/O MALLIKARJUN CHALAGERI,
AGE. 39 YEARS, OCC. HOUSEHOLD WORK,
Digitally signed JALAWAD, TQ. SINDAGI,
by SWETA
KULKARNI
Location: High
DIST : VIJAYAPURA-586 101.
Court of
Karnataka
2. LAXMIKANT S/O MALLIKARJUN CHALAGERI,
AGE. 20 YEARS, OCC : STUDENT,
3. MANJUNATH S/O MALLIKARJUN CHALAGERI,
AGE : 18 YEARS, OCC. STUDENT,
ALL ARE R/O. JALAWAD, TQ. SINDAGI,
DIST : VIJAYAPURA-586 101.
...RESPONDENTS
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
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MFA No. 200660 of 2023
THIS MFA FILED UNDER SECTION 30(1) OF EMPLOYEES
COMPENSATION ACT, PRAYING TO ALLOW THE ABOVE MISC
FIRST APPEAL AND CONSEQUENTLY BE PLEASED TO SET
ASIDE THE JUDGMENT AND AWARD DATED 21.11.2022
PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND
WORKMEN'S COMPENSATION COMMISSIONER AT VIJAYAPURA
IN E.C.A. NO.15/2019, AND CONSEQUENTLY IS PLEASED TO
DISMISS CLAIM PETITION AGAINST THIS APPELLANT, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY S.
SUNIL DUTT YADAV J., DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is taken up with the consent of both the sides for final disposal as learned counsel for the respondent would submit that the substantial question of law framed relating to the nexus between the cause of death and the employment has been answered in the order passed by a co-ordinate bench, the Divisional Controller, NEKRTC Vs. Kiran and Ors. in MFA No.201567/2017.
2. In terms of Section 30A, the appeal has been admitted on the substantial question of law which reads as hereunder:
Whether the court below was justified by fixing liability on the appellant-Corporation while -3- MFA No. 200660 of 2023 noticing the cause of death was due to heart attack and recording a finding as regards nexus between employment and cause of death?
3. The parties are referred to as per their rank before the Commissioner.
4. The admitted facts relevant to the purpose of disposal of this appeal are that the claimants have filed a petition under Section 22 of the Employees Compensation Act, 1923 read with Section 2(A), 4 and 7 of the (Amended Act) Act, 2009 seeking compensation for death of Mallappa @ Mallikarjun S/o Lakkappa Chalageri.
5. The facts that are made out are that the petitioners before the 'Commissioner' are the wife (P.W.1) of the deceased and children (PWs.2 and 3) and the mother (PW.4) of the deceased. The said Mallappa was stated to be serving as a driver in the Corporation in Sindagi Depot and his employment is not in dispute. On 10.11.2017, Mallappa was treated to be on duty as driver in the Sindagi Depot and was driving the bus proceeding -4- MFA No. 200660 of 2023 from Sindagi to Solapur via Afzalpur and while driving the said bus, when it was traveling towards Solapur at about 2.30 p.m. and when the bus came near Korahalli Village of Sindagi Taluk, Mallappa is stated to have suffered a heart attack and died literally on the steering of the bus itself while on duty. It is further borne out from the records that the deceased was shifted to the Government Hospital, Sindagi for post mortem.
6. It comes out from the records that the deceased was aged about 42 years and he was on regular rolls of the Corporation. The claim petition was objected to by the Corporation by filing the written statement before the Commissioner and had raised various contentions including that the petition was barred by limitation and there was denial as regards to the other details.
7. It is the specific case of the Corporation that death had not taken place during the course and arising out of his employment as driver and that there was no nexus between death and performance of duty as driver. -5- MFA No. 200660 of 2023
8. The issues were framed by the Commissioner and the evidence was led in by the claimants through the wife of the deceased, examined as PW.1 and the Labour Officer was examined as RW.1 and the Depot Manager of Corporation was examined as RW.2. The petitioners' side had got marked the documents Exs.P.1 to P.7 and on the Corporation side, Exs.R.1 to R.6 were marked.
9. The Commissioner after appreciation of the material on record has noticed that in the cross- examination of RW.1, there was an admission that Mallappa Chalageri who is the deceased was the permanent employee as driver in the Corporation and that RW.1 further admitted that driver Mallappa died while driving the bus. It has also been observed by the Commissioner that during the examination of RW.2, it was elicited that the deceased was working as a driver in the Corporation for the past 12 years and he was able to work till the date of the incident.
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10. It is also noticed that RW.2 had admitted that deceased had died due to cardiac arrest while driving the bus at the distance of 12-15 kilometers from Sindagi near Korahalli Cross. Ex.R1 shows that the deceased was on duty as on the date of incident.
11. Insofar as the contention regarding limitation is concerned, the Commissioner has observed that though there was delay of one year three months, as the period of limitation prescribed to file petition before the Commissioner was two years. There was no question of rejecting the petition on the ground of limitation.
12. On perusal of the first information report and other records, the Commissioner had arrived at a conclusion that the relationship of employer and employee was established.
13. The Commissioner accordingly while taking note of the nature of accident has held that the death was caused due to stress and strain resulting from nature of work which is to be construed as death in the course of -7- MFA No. 200660 of 2023 employment. The Commissioner also took note of Ex.P.4, post mortem report which discloses the death of the deceased Mallappa was due to myo-cordial infraction and accordingly has answered Issue Nos.1 and 2 in the affirmative and has proceeded to calculate the compensation taking note of Section 4(1-A) of the Employees Compensation Act, 1923.
14. The only substantial question of law relates to the manner of construing heart attack being cause of death and nexus with the employment.
15. It is to be noticed that as regards to a similar incident of the same Corporation was considered in MFA No.201567/2017, the Co-ordinate Bench of this Court had considered that when a person had died due to heart attack, it could be construed to be an incident during the course of employment. By a detailed consideration, the Co-ordinate Bench of this Court has analyzed the definition of personal injury and accident as mentioned under Section 3 of the Workmen's Compensation Act, 1023 and -8- MFA No. 200660 of 2023 has held that death due to heart attack could be construed to be an accident during the course of employment. The analysis of the Co-ordinate Bench of this Court relating to personal injury in terms of Section 3 of the Workmen's Compensation Act has been considered in detail. At para 18 which reads as follows :-
"18. Section 3 of the Act, 1923 provides for Employer's liability in cases of "personal injury" provided
a) the workman must have sustained personal injury; b) the personal injury must have been caused by an accident; c) the accident may have arisen out of and in the course of employment and d) the personal injury caused to the workman must have resulted either in the total or partial disablement of the workman for a period exceeding three days or it must have resulted in the death of the workman. The expression "personal injury"
has not been defined. It need not involve physical trauma, but may include such injuries as disease, sunstroke, nervous collapse, traumatic neurosis, hysterical paralysis and neurasthenia. It may be external, or may be internal. In the case of chest pain arising during duty after remaining busy in strenuous work for many hours may be termed as an accidental internal injury. The word 'personal injury' being wider than bodily injury also includes all physical injuries which may be -9- MFA No. 200660 of 2023 caused by an accident arising out of and in the course of employment. It also includes all mental stress and strains or mental tension or mental illness or psychological diseases, provided such mental conditions have arisen by accidents arising out of and in the course of employment. Similarly, a death from heat stroke has also been held to be personal injury entitling the dependant to compensation. It may also include nervous shock caused by an excitement and alarm resulting from a fatal accident to a fellow workman."
and the Co-ordinate Bench of this Court has observed that circumstances under which heart attack had occurred to the employee while driving a bus could be stated to be an accident and personal injury arising out of and in the course of employment which would make the employer liable to pay compensation.
16. The Co-ordinate Bench has noticed that there would be strain in driving heavy vehicles and has considered this aspect of the nature of work involved while driving the heavy vehicle. Observation at para 27 is relevant which reads as follows :-
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"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 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
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indicates deceased died while on duty due to heart attack."
17. 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 legislation 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
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merits is liable to be dismissed. Hence, the substantial question of law is answered in Affirmative."
18. As against the said judgment, the special leave petition was preferred before the Hon'ble Apex Court in SLP (Civil) No.29610/2021, which has been dismissed and accordingly, the finding relating to heart attack being an incident which could be considered to be personal injury and held to be in the course of employment holding thereby that liability could be fastened on the employer requires acceptance.
19. In the present case also, it is not in dispute that the deceased was driving the vehicle and suffered heart attack, when he was driving the vehicle at about 2.30 p.m. when the bus was near Korahalli Village of Sindagi Taluk. The fact that he suffered heart attack, literally on the steering of the bus itself is not in dispute.
20. Taking note of the nature of work of driving the heavy vehicles and during afternoon hours, the analysis by
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MFA No. 200660 of 2023the Co-ordinate Bench of this Court regarding the heart attack having a nexus with the nature of duty performed requires to be adopted in the present case also as driving the bus is tenuous exercise.
21. In light of the undisputed relationship of employer and employee and also the calculation being made in terms of Section 4 of the Workmen's Compensation Act as observed in the order admitting the petition, there are no other grounds. Accordingly, while answering the substantial question in the affirmative, the appeal is rejected and the order of the Commissioner is affirmed.
In light of the disposal of the appeal, I.A.No.2/2023 is disposed off as not calling for further orders.
Sd/-
JUDGE Sd/-
JUDGE BL/SN List No.: 1 Sl No.: 29