Allahabad High Court
Sunita And 2 Others vs M/S Madhu Transport Co. And Another on 22 November, 2019
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- FIRST APPEAL FROM ORDER No. - 1529 of 2019 Appellant :- Sunita And 2 Others Respondent :- M/S Madhu Transport Co. And Another Counsel for Appellant :- Satya Deo Ojha Counsel for Respondent :- Sushil Kumar Mehrotra Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Satya Deo Ojha, learned counsel for the appellant and Sri Sushil Kumar Mehrotra, learned counsel for the respondent.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 2.5.2019 passed by Commissioner, Employees Compensation Act/Deputy Labour Commissioner, Meerut (hereinafter referred to as 'Commissioner') in Employees Compensation Case No. ECA 154 of 2013 rejecting the claim petition.
3. Counsel for the appellant in support of his arguments has relied on the decision of this Court dated 1.9.2017 passed in First Appeal From Order No. 3744 of 2012 (The Oriental Insurance Co. Ltd. Vs. Smt. Meenu Sharma and others).
4. Per contra, counsel for the respondent has relied on the decisions in Shipping Corporation of India Limited Vs. Madhavan Raman Arakhan, 2006 (2) T.A.C. 394 (Bom.) and Deepa Rautela Vs. J.K. Saukat Cement Pipe Pvt. Ltd.
5. If we consider the technical consideration, the common course of human conduct or common sense would go to show that if a person goes to Orissa, may contact what is known as jaundice or bodily disease, the Act substantially provides for industrial or occupational disease.
6. Way back in the year 1904 in Brintons Ltd. vs. Turvey, (1904) 1 KB 328 it has been held that where a workmen employed in wool-combing factory contacted the disease of anthrax through bacillus passing from the wool of his eye and died, it was held by the Court of Appeal and the House of Lords that the deceased had sustained a personal injury by accident.
7. In this case, if this Court goes by the Medical Report it is not the finding of fact of the Commissioner that he had not been subjected to vagaries of driving. The food in Orissa or enroute may have been contaminated which may have developed a disease in the deceased and, therefore, there is colossal relation and it has to be held that he contacted disease while being a driver on the truck of the respondent. Just because the experts' opinion was not filed, it cannot be said that the deceased did not die out of the occupational disease.
8. In the case of Broach Municipality Vs. Raiben Chiman Lal 1993 (III) LLJ (Supp) 90 if the performance of duty during the course of employement aggravates the disease, then the death can certainly be attributed to the employment injury which he receives on account of strains of the work performed by him. Further more, the seat of the driver of tractor remains incessantly trembling and there will be the heart disease, in this view of the matter, the learned Commissioner for Workmen's Compensation has correctly applied the principle laid down by the High Court in the aforesaid decision.
9. Section 3 of the Act also leads to the consequences of the accidental injury or disease. Reference can be made to a very old decision in the case of Clover, Clayton & Co. Vs. Hughes, (1990) AC 242 (245) and Clover, Clayton & Co. Vs. Hughes, (1990) AC 212 (215) and, therefore, had he not gone to Orissa, had he not taken the food on journey, he might not have contacted the dreaded disease by which he passed away after returning from Orissa. He was admitted in the hospital in Orissa also. In case of Broach Municipality (Supra) the High Court of Gujarat considered that if the performance of duty during the course of employment aggravates the disease then the death can certainly be attributed to employment injury which he recieves on accout of strain of work performed by him.
10. The decisions in Madhavan Raman Arakhan (Supra) and Deepa Rautela (Supra) sought by the learned counsel for the respondent will not apply to the facts of this case as the workmen had failed to establish that he had suffered from diabetes on account of nature of work. Here is a case of jaundice and, therefore, the said decision cannot be made applicable. The decision of the this Court in Smt. Meenu Sharma and others (Supra) will be applicable to the facts of this case.
11. The judgment relied by the Workmen Compensation Commissioner in case of Jyothi Adema Vs. Plant Engineer, Nellore and another, III (2006) ACC 356 will not apply to the facts of this case. The test which are laid by the Apex Court and which are to be satisfied, are satisfied in the case on hand and, therefore, the appeal will have to be allowed.
12. There is casual connection between the injuries and the accident, Section 3 of the Act and the judgment in Malikarjuna G. Hiremath Vs. Oriental Insurance Co. Ltd. will apply in full force. The stress and strain arising during the course of employment and aggravation of the disease due to travelling will permit this Court to allow the appeal.
13. The medical evidence was already there but the learned Commissioner has failed to appreciate the same. The original bills of Geeta Nursing Home at Meerut and the original bills of medicine and all the reports which were taken and the legal notice which ought to have been looked into by the learned Commissioner. The photocopy of death certificate and the postmortem report show that he died out of the disease which was attributable to his service and the type of his service. Even in the reply filed, this stand was never taken. The deceased was admitted in Geeta Nursing Home, Bagpat Road, Meerut from 27.6.2013. His platelets were below the normal range and the ultrasound report ought to have been taken into the record. He died out of shrunken (cirrhotic) Liver & Mild Ascites.
14. In view of the above, this appeal is partly allowed. The matter is remitted back to the Commissioner to decide on the quantum only which shall be decided on or before 31.3.2020.
Order Date :- 22.11.2019 DKS