Madras High Court
The Divisional Manager vs Valli on 17 June, 2014
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.06.2014 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.1521 of 2014 and M.P.No.1 of 2014 The Divisional Manager, New India Assurance Company Limited, Officers Lane, Vellore. ...2nd Respondent/Appellant vs. 1.Valli 2.Sampath ...Petitioners/Respondents 3.K.Senthilkumar ...1st Respondent/Respondent Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the award and decree, dated 23.10.2013 made in W.C.No.189 of 2009 on the file of the learned Deputy Commissioner of Labour for Workmens' Compensation-1, Chennai. For Appellant : Mr.R.Neethe Perumal J U D G M E N T
According to the respondents/claimants, at the time of accident, the deceased K.Sathishkumar, aged about 21 years, was employed as a Cleaner in a Van, bearing Registration No.TN-23AZ-4336, owned by the 3rd respondent and insured with the Divisional Manager, New India Assurance Company Limited, Officers Lane, Vellore. The claimants have submitted that on 24.09.2006, about 04.00PM, when the vehicle was operated from Bangalore to Ranipet, on Palamaner Bangalore National Highways Road, due to rash and negligent driving of another vehicle, bearing Registration No.KA-04Z-6206, driven by its driver, the vehicles collided, in which the cleaner and the driver Kathirvel, sustained injuries. Initially, cleaner K.Sathishkumar was given first aid in Government Hospital, Palamaner and thereafter, shifted to CMC Hospital, Vellore. Despite intensive treatment, he died on 02.10.2006. According to the legal representatives, he earned Rs.5,000/- per month. Claiming that the accident occurred during the course of employment, they have filed W.C.No.189 of 2009 on the file of the learned Deputy Commissioner of Labour for Workmens' Compensation-1, Chennai.
2.The Divisional Manager, New India Assurance Company Limited, Vellore, 2nd Opposite party in W.C.No.189 of 2009, has filed a counter affidavit denying the accident and disputing the liability. They denied the employer-employee relationship. They further submitted that no Post-mortem was conducted. The Insurance Company has filed an additional counter affidavit stating that the owner of the lorry, bearing Registration No.TN-23AZ-4336 has paid premium by Cheque, bearing No.010661, dated 14.09.2006, for a sum of Rs.9,652/- drawn on State Bank of India, Ranipet. The said Cheque was returned with an endorsement insufficient funds and the Banker's Memo for dishonour of cheque was issued on 16.09.2006 and communicated by the Divisional Manger, New India Assurance Company Limited, Vellore, to the 1st opposite party (owner of the vehicle) vide letter dated 29.09.2006 and that the same was also intimated to the Regional Transport Officer, by letter dated 26.09.2006. The Insurance Company has further submitted that the 2nd opposite party has effected cancellation of policy through endorsement dated 26.09.2006 and intimated the same to the 1st opposite party. In the abovesaid circumstances, the Insurance Company has submitted that the 1st opposite party (owner of the vehicle) has not paid premium for the said vehicle, as the cheque was dishonoured, and the same was intimated by the 2nd opposite party.
3.Before the learned Deputy Commissioner of Labour for Workmens' Compensation-1, the mother of the deceased examined herself as PW1 and reiterated the manner of accident. Ex.P.1-First Information Report, Ex.P.2-Discharge Summary, Ex.P.3-Death Certificate, Ex.P.4-Legal Heirship Certificate, Ex.P.5-Insurance Policy, Ex.P.6-Driving Licence, Ex.P.7-Accident Register copy and Ex.P.8-Ration Card have been marked. RW1 is the Legal Assistant of the Insurance Company. Ex.R.1-Cheque, bearing No.010661, dated 14.09.2006, drawn on State Bank of India, Ex.R.2-Banker's Memo for dishonour of cheque, Ex.R.3-Letter of State Bank of India, Valajah, Ex.R.4-Letter sent by the Insurance Company to the Regional Transport Officer and Ex.R.5-letter of the Insurance Company to the owner of the vehicle, have been marked.
4.On evaluation of pleadings and evidence, the Commission for Workmen held that the accident occurred due to the collision between the abovesaid vehicles. Though the Insurance Company has disputed that the cause of death was not due to the injuries sustained in the accident, on evaluation of pleadings and evidence, the learned Deputy Commissioner of Labour-I, Chennai, has awarded compensation of Rs.4,13,289/- and recorded that immediately after the accident, the injured was provided first aid in Government Hospital, Palamaner and thereafter, shifted to CMC Hospital, Vellore. He was in coma until 02.10.2006, when he was discharged from the said hospital. On 03.10.2006, he died. On the basis of evidence adduced by the claimants, the learned Deputy Commissioner of Labour-I, Chennai, came to the conclusion that death was due to injuries. The deceased survived for 9 days, after the accident and died lateron. In the abovesaid circumstances, it cannot be said that the injuries sustained by him, could not have been the cause for the death. Instant death or, death after few days, alone is not the criteria to claim compensation. Considering the situs and gravity of the injuries, age of the injured, physical condition of the injured, response to the treatment, life can be saved. The above factors may also reduce the expectancy of life. On the question, as to whether, there was proximity or cause for the death, it is worthwhile to extract few paragraphs from the Judgment of this Court in Abdul Rahim v. Sundaresan reported in 2010 (3) MLJ 1299, wherein reference has been made from Black's Law Dictionary. Paragraphs 8 to 10, are extracted hereunder:
8. He also referred THE BLACKS LAW DICTIONARY to define what is meant by cause:
Causa caqusans - An immediate or effective cause. Se immediate cause under Cause.
Causa sine qua non A necessary cause; the cause without which the thing cannot be or the event could not be or the event could not have incurred. See but-for cause under Cause.
Cause, n. 1. Something that produces an effect or result the cause of accident But-for cause. The cause without which the event could not have, occurred Also termed actual cause; cause in fact; factual cause. Proximate cause. 1. Cause that is legally sufficient to result in liability. 2. A cause that directly produces an event and without which the event would not have occurred -Also termed direct cause; direct and proximate cause; efficient proximate cause; efficient cause; efficient adequate cause; legal cause; procuring cause; producing cause; primary cause; jural cause.
9. The counsel also relied upon the decision of the Delhi High Court in Klaus Mittelbachert v. East India Hotels Ltd. AIR 1997 Delhi 201, wherein it is stated as follows:
128. In Words & Phrases, Permanent Edn Vol. 21 at page 448, injury causing death has been defined as under:
If an employee but for an injury would not have died at the time at which and in the way in which he did die the accident though it merely hastened a deep-seated disorder is regarded as resulting in an injury causing death within the Workmen's Compensation Act.
129. Death resulting from injury has been defined in Vol. XI page 46-47 (CAPP) ibid as follows:
Death resulting from an injury..... covers cases in which an injury aggravates or accelerates an existing condition so that death ensues earlier than it would in the ordinary course, even though the existing condition would have ultimately resulted fatally.
130. In Pigney v. Pointers Transport Services Ltd., 1952 (2) All England Law Reports 307 relying on Re: Polemis & Furnace, 1921 (3) KB 560, 577 LORD PILCHER has said: if death is directly traceable to the injury in the accident for which the defendants are responsible., the chain of causation is not broken.
131. In plain words, if an injury hastens or accelerates the death, directly and not remotely, then in law the injury is one causing or resulting in death. By relying upon those paragraphs, learned counsel for the appellants submitted that any injury which forms the nucleus resulting in a death, has to be taken as cause for the death.
10. He also relied upon RATANLAL & DHIRAJLALS THE LAW OF TORTS to speak about the connection between the act and the death. From the Chapter 1.Damages, he relied on the following paragraph:
1(B) Causation If the damage alleged was not caused by the defendant's wrongful act the question of its remoteness will not arise. In deciding the question whether the damage was caused by the wrongful act, the generally accepted test is known as but for test. This means that if the damage would not have resulted but for the defendant's wrongful act, it would be taken to have been caused by the wrongful act. Conversely it means that the defendant's wrongful act is not a cause of the damage if the same would have happened just the same, wrongful act or no wrongful act. Thus when a doctor is negligent in failing to see and examine a patient and give him the proper treatment, the claim will still fail if it is shown on evidence that the patient would have died of poisoning even if he had been treated with all due care. The doctor's negligence in such cases is not the cause of the patient's death.
5.In Abdul Rahim's case (cited supra), reference has also been made to a decision of the Hon'ble Supreme Court in Ramathal v. Managing Director, Cheran Transport Corporation AIR 2004 SC 3445 : (2003) 10 SCC 53, wherein, the deceased was originally injured on 14.1.1991, hospitalised for one week and subsequently, discharged from the hospital. Thereafter, after one year, he died on 26.2.1992. Originally, the injured filed a claim for compensation. After his demise, the dependents have been brought on record. The Tribunal awarded Rs.3,59,508/-. But on the appeal, this Court has reduced the compensation to Rs.76,000/-. The claimants therein preferred an appeal and the Apex Court, enhanced the compensation to Rs.2,00,000/-. While reversing the judgment of the High Court, the Apex Court, at paragraph 15 of the judgment, held as follows:
15. Unfortunately, the High Court did not discuss the materials on record in detail. It is not in dispute that the deceased was an indoor patient from 14.1.1991 to 21.1.1991. fie thereafter was beinc treated in the Government Hospital, Palladam. He died there. The medical certificate shows that the cause of the death was due to primary disease hypoxic encephalopathy and the immediate cause of death was due to cardiorespiratory arrest. The doctor examined on behalf of the claimants categorically stated that the accident might have been the cause of death of the deceased. The respondent did not bring any material on record to show that there was no link between the accident and the death. The finding of the High Court that there was no proper medical treatment and, therefore, cause of death is not attributable to the accident does not appear to be based on any material on record. In any event, it cannot be said to be the correct approach adopted by the High Court particularly when the Tribunal on the basis of the materials brought on record by the parties came to a contrary finding. No strong and cogent reason has been assigned by the High Court in support of its judgment reversing the findings of the Tribunal. It accepted the submission made on behalf of the respondent herein without analysing the materials and without arriving at a clear finding of fact.
6.Some of the decisions, on the aspect that the cause of death was only due to the injuries sustained in the accident and that therefore, the legal representatives of the deceased are entitled to just compensation, are as follows:
(i) In Govind Singh and others vs. A.S.Kailasam and another reported in 1975 ACJ 215, the deceased sustained injury in a motor accident that occurred on 04.06.1967. She had developed tetanus, despite receiving medical attention in the Government Hospital and succumbed to injuries on 22.06.1967. The evidence produced before the Court prove that there were 7 injuries and therefore, it was concluded that tetanus infection could have been caused by the supervening injuries. In that context, the Court held that the death could have been caused only due to tetanus and that the infection would have been caused by one of the supervening injuries. In the reported case, it was evident from Exs.P3 and P4-Out-patient chits and Ex.P8-case sheet that the deceased complained of symptoms of lock-jaw, which is attributable only to tetanus. On an analysis of the entire evidence produced before the Court, it was concluded that there was no necessity to conduct post-mortem.
(ii) In Kumar Mohamed Rafique (since deceased) by his heirs vs. Municipal Corporation of Greater Bombay reported in 1986 ACJ 55, a 11 year old boy sustained head injuries in 1972 and became semi-conscious. An artificial device was inserted. Infection in the brain caused paralysis of the left side and deterioration in general condition of the injured. There was evidence to show that he was continuously treated for the head injury; In spite of medical attention, he died in 1980.
In the above case, the Court had the opinion of three medical men, and one among them was a surgeon, who had operated the deceased. The Doctor had deposed that the patient was forced to have recourse to the artificial device, because of the accident and life of the device could not be guaranteed. Since, the failure of the said artificial device had resulted in the death of the injured, the Court had no difficulty in holding that the injury caused due to the accident was the cause of his death, notwithstanding the fact that seven years had elapsed after the shunt was inserted and before the patient succumbed. Compensation was awarded, because the patient was provided with an artificial device, immediately after the accident and that due to the failure of the said artificial device after seven years, the patient succumbed to injuries.
(iii) In New India Assurance Co. Ltd., and others vs. Shakuntla Bai and others reported in 1987 ACJ 224, a tempo van ran over an old man on 03.05.1980 and he sustained compound fracture of pelvis bone and filed an application under Section 110-A on 31.10.1980 and died on 17.01.1981. It was held by the Court that the legal representatives of the deceased could pursue the action initiated by the injured and that they are entitled to be compensated for the loss of dependency. As the injured died after 8 months of the accident, due to the injuries, he suffered in the accident, as no immediate cause other than injuries had been proved and therefore, the Court awarded compensation.
(iv) In Usha Jhingran and others vs. Budhsen and others reported in 1992 ACJ 110, the claimants contended that the deceased died due to the accident, but did not produce any medical or other expert evidence to infer that death was the direct consequence of injuries received by the deceased in the accident. The injured remained unconscious in the hospital for about a year after the accident and died, thereafter. The decision of the Tribunal dismissing the claim petition was reversed by the High Court and compensation was awarded.
(v) In Union of India and another vs. Saraswathi Debnath and others reported in 1995 ACJ 980, the High Court was pleased to consider as to how the evidence tendered before the Claims Tribunal has to be appreciated. In this case, the High Court was pleased to hold as follows :
"6. The law is well settled that in a claim under the Motor Vehicles Act, the evidence should not be scrutinised in a manner as is done in a civil suit or a criminal case. In a civil case the rule is preponderance of probability and in a criminal case the rule is proof beyond reasonable doubt. It is not necessary to consider these niceties in a matter of accident claim case inasmuch as it is summary enquiry. If there is some evidence to arrive at the finding that itself is sufficient. No nicety, doubt or suspicion should weigh with the Claims Tribunal in deciding a motor accident claim case. The law on this is laid down by the Supreme Court in N.K.V. Bros. (P) Ltd., vs. M.Karumai Ammal, 1980 ACJ 435 (SC).
(vi) In Klaus Mittelbachert and others vs. East India Hotels Ltd. and others reported in 1999 ACJ 287, the accident occurred, while the guest was diving in the swimming pool, thereby, he sustained a head injury and lateron, he died. There was evidence to show that the guest sustained head injuries and that he was continuously treated from day one of the accident, till his death. In this case, the Supreme Court concluded that the injury in the head was the cause of death.
(vii) In Vidhyawati and another vs. A. Guruswamy and another reported in 2005 ACJ 433, a pedestrian was hit by a taxi and sustained injuries including the fracture of right leg. The injured was continuously treated, and died after five months due to pneumonia. The medical evidence proved that the injury was one of the reasons, for his death and that there was no rebuttal evidence. Therefore, the Tribunal allowed compensation on the ground that death would have occurred due to pneumonia and renal failure.
In the above case, the accident occurred on 03.09.1997. The injured was treated in a hospital, but he was 'kept in follow-up'. His condition became serious, he was again admitted in the hospital on 02.01.1998 and discharged on 16.01.1998. Again, he was brought to the hospital on 16.01.1998 and he died on 29.01.1998. Since there was proximity to the injury and death, the Tribunal awarded compensation.
7.On the relationship of employer and employee, the learned Deputy Commissioner of Labour, Chennai, found that the deceased was a Cleaner in the vehicle, bearing Registration No.TN-23AZ-4336, and insured with the appellant herein. It is a settled law that the finding of fact of employer-employee relationship is a pure question of fact and interference can be made only under exceptional circumstances, if such finding recorded by the Deputy Commissioner of Labour /Commissioner under the Workmen Compensation Act, is proved by adding concrete evidence and if it is perverse. For the abovesiad principle of law, useful reference can be made to a decision of this Court in Baskar v. G.Selvaraj [C.M.A.No.1620 of 2001, dated 15.04.2009], wherein, this Court held as follows:
"Normally, the High Court, in appeal under Section 30 of the Workmen's Compensation Act, shall not interfere in a finding on a question of fact. The Commissioiner for Workmen's Compensation has given a finding on a question of fact that the deceased Sivakumar was under the employment of the appellant herein.
20. At the outset it may look like a pure question of fact in which this court cannot interfere in exercise of its appellate powers under Section 30 of the Workmen's Compensation Act. However, it has been repeatedly held in a number of cases that a question of fact will assume the character of a substantial question of law if the finding is perverse. If a finding of fact is based on no evidence or based on inadmissible evidence alone or on the basis of the evidence, no reasonable person would have arrived such a conclusion, then such finding, though a finding of fact, shall be elevated to the level of a substantial question of law."
8.In Management, Boys Town Society v. V.Palani reported in 1998 ACJ 559, this Court held that the finding as to whether the employee was a workman or not was a question of fact and any appeal under Section 30 of the Workmen's Compensation Act is not maintainable.
9.Though the parents have claimed that the deceased earned Rs.5,000/- per month, there was no proof. However, on the basis of minimum wages determined by the Government of Tamil Nadu, the learned Deputy Commissioner of Labour, Chennai, fixed the monthly income of the deceased as Rs.3,689/-. As per the entry in Ex.P.3-Death Certificate, at the time of accident, the deceased was aged 21 years. As regards the finding fastening liability on the Insurance Company to pay compensation, it could be seen from the award that the 1st opposite party (owner of the vehicle), has issued Ex.R.1-Cheque, bearing No.010661, dated 14.09.2006, for a sum of Rs.9,652/- drawn on State Bank of India, Ranipet, towards the premium for the offending vehicle. The said Cheque has been returned with an endorsement insufficient funds and a Banker's Memo dated 16.09.2006 has been issued to the insurer. By that time, the appellant - Insurance Company had already issued a Policy for the period between 16.09.2006 and 15.09.2007. Upon receipt of the Banker's memo, New India Assurance Company Limited, Vellore, vide letter dated 26.09.2006, is stated to have intimated the fact of cancellation of policy to the Regional Transport Office. Even in the counter affidavit, the Insurance Company has stated that they have intimated to the 1st opposite party only on 26.09.2006, about the cancellation of policy. Perusal of the award indicates that RW1, Legal Assistant, examined on behalf of the Insurance Company has categorically admitted that the policy issued in favour of the 1st opposite party was cancelled only after the accident. At this juncture, this Court deems it fit to extract a portion of cross examination incorporated in the award as hereunder:
kDjhuh; FWf;F tprhuizapy;. ghyprp 16/09/2006 Kjy; 15/09/2000 tiu bry;yj;jf;fJ vd;Wk;. tpgj;jpw;Fg; gpwF jhd; ghyprp uj;J bra;ag;gl;lJ vd;Wk; bjhptpj;Js;shh;/
10.Thus, it could be seen that on the date of accident, i.e., 24.09.2006, Ex.P.5-Insurance Policy, for the period between 16.09.2006 and 15.09.2007, was in force. When the contract of insurance was in force, the appellant Insurance Company is liable to pay compensation, in the light of the decision of the Hon'ble Supreme Court in New India Assurance Company Limited v. Rula and others in Civil Appeal No.1985-1987 of 2000, dated 07.03.2000, wherein the Supreme Court held as follows:
The subsequent cancellation of the Insurance policy in the instant case on the ground that the cheque through which premium was paid was dishonoured, would not affect the rights of the third party which had accrued on the issuance of the policy on the date on which the accident took place. If on the date of accident, there was a policy of insurance in respect of owner of the vehicle would have to be indemnified in respect of the claim of that party. Subsequent cancellation of insurance policy on the ground of non-payment of premium would not affect the rights already accrued in favour of the third party.
11.The Commissioner for Workmen has fastened the liability on the appellant - Insurance Company to pay compensation to the victim and thereafter, to recover the same from the owner of the vehicle.
12.Assailing the correctness of the award, Mr.R.Neethe Perumal, learned counsel for the appellant Insurance Company, has raised the following Substantial Questions of Law:
a)As the respondents prove their case that the appellant is liable to compensate under the provisions of Workmen's Compensation Act?
b)Can an order passed against the appellant - insurer when there is no valid insurance policy during the time of the accident.
c)Can the victim, who is the employee of the 3rd respondent be termed as a third party for claiming insurance against the appellant?
d)From which date, the policy issued by the appellant stands cancelled when the cheque through which premium was paid was returned for insufficient funds.
13.In the light of the decision of the Apex Court and the clear admission on the part of RW1, Legal Assistant, examined on behalf of the Insurance Company that Ex.P.5-Policy issued for the period between 16.09.2006 and 15.09.2007 has been cancelled only after the accident on 24.09.2006, the Substantial Questions of Law raised are answered against the appellant. Hence, the finding of employer - employee relationship is confirmed.
14.The Deputy Commissioner of Labour under the Workmen's Compensation Act, has fixed the monthly income of the deceased as Rs.3,689/- and having regard to his age as 21 years, applied the structured formula and arrived at the compensation of Rs.4,10,789/- (50 / 100 X 3689 X 222.71 = Rs.4,10,789/-). In addition to the above, a sum of Rs.2,500/- has been awarded for funeral expenses. Altogether, a compensation of Rs.4,13,289/- has been awarded to the respondents/claimants with interest, at the rate of 12% per annum to S. MANIKUMAR, J, mps be remitted, computing the interest from 30 days after the date of accident. Hence, quantum of compensation is confirmed.
For the reasons stated supra, the Civil Miscellaneous Appeal is dismissed. The respondents/claimants are permitted to withdraw the amount deposited with the Deputy Commissioner of Labour for Workmens' Compensation-1, Chennai, after furnishing necessary applications. No costs. Consequently, connected Miscellaneous Petition is closed.
17.06.2014 Index :Yes Internet :Yes mps To The Deputy Commissioner of Labour for Workmens' Compensation-1, Chennai.
C.M.A.No.1521 of 2014and M.P.No.1 of 2014