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[Cites 10, Cited by 2]

Jammu & Kashmir High Court

United India Insurance Co. Ltd. vs Inderjeet Kour And Ors. on 20 August, 2018

Equivalent citations: AIRONLINE 2018 J AND K 140

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

      HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
MA No. 636/2010
IA No. 944/2010
                                                Date of order:       20.08.2018
 United India Insurance Co. Ltd.        Vs.   Inderjeet Kour and ors.
Coram:
       Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Petitioner(s)/Appellant(s)      : Mr. Vishnu Gupta, Advocate
For the Respondent (s)                  : Mr. Gurcharan Singh, Advocate
 i) Whether approved for reporting in                     Yes/No
Law journals etc.:
ii) Whether approved for publication
in press:                                                 Yes/No

1. This appeal filed by United India Insurance Company under Section 30 of the Employees Compensation Act, 1923 (hereinafter referred to as "the Act") is directed against the award of Commissioner Workmen Compensation (Assistant Labour Commissioner), Jammu (hereinafter referred to as "the Commissioner") dated 28.07.2010. The respondent Nos. 1 to 3 in this appeal are the dependents of Late Sh. Manjeet Singh. They filed a claim petition before the Commissioner under the Act (ALC), Jammu for seeking compensation to the tune of Rs. 8 lacs from the appellant-Company and respondent No. 4 on the ground that Late Manjeet Singh was a workman employed with respondent No. 4 and that he died on 04.12.2007 on the Bank of river Chenab, Akhnoor in his Truck while he was under the employment of respondent No. 4. The respondents-claimants pleaded that the monthly income of the deceased- Manjeet Singh, who was driving the Truck of respondent No. 4 was Rs.

MA No. 636/2010 Page 1 of 14

8,000/- per month on account of fixed monthly salary and a tip of Rs. 400/- per trip from Jammu to Srinagar and back. It is claimed that the deceased at the time of his death was 46 years and respondent No. 4 was insured with the appellant-Company. It is also pleaded in the application that since the deceased Manjeet Singh had died under mysterious circumstances and the cause of his death was not known, as such, the SHO Police Station, Akhnoor initiated inquest proceedings in terms of Section 174 of Cr. PC. The police, however, did not finalise the inquest report. Copy of the death certificate and the driving licence of the deceased was made part of the claim petition as Annexure "A" and "B".

2. The claim petition was entertained by the Commissioner, who put the appellant as well as respondent No. 4 to notice. Both the appellant as well as respondent No. 4 appeared before the Commissioner and filed their respective objections. Respondent No. 4 S. Harbans Singh, owner of the vehicle admitted the contents of the claim petition, whereas the appellant- insurance Company took all possible objections and contested the claim. The appellant, however, admitted that the Truck in question was insured with it in the name of respondent No. 4, S. Harbans Singh. The relationship of workman and employer between the deceased and respondent No. 4 was, however, disputed. The appellant even denied that the deceased was "Workman" as defined under the Act. Plea of limitation was also pressed into service.

3. On the basis of pleadings of the parties, the Commissioner framed the following issues:-

(1) Whether the deceased falls within the definition of Workman as defined under Workmen‟s Compensation Act, 1923 (OPP).
(2) Whether the deceased died out of and in the course of his employment for respondent No. 1 (OPP). (3) What was the age and wages of the deceased at the time of death (OPP).
MA No. 636/2010 Page 2 of 14
(4) Relief.

4. The claimants examined Yash Pal and Amrik Singh as their witness. The claimant- Smt. Inderjeet Kour-wife of the deceased also entered the witness box to support the claim. On the other hand, the appellant- insurance Company examined one Sudershan Kumar, Investigator Survey, as their sole witness. The Commissioner, upon appreciation of evidence, came to the conclusion that Manjeet Singh was a driver by profession and, therefore, a "Workman" as defined under Section 2 (n) of the Act. The Commissioner also found that the deceased at the relevant point of time was employed as a driver with respondent No. 4 on his Truck insured with the appellant-insurance Company and that, although, deceased was son of respondent No. 4, S. Harbans Singh, yet he was under the employment of his father as driver of the vehicle exclusively owned by the father. The deceased was also found to have his own family consisting of his wife, son and daughter. The Commissioner further found that the deceased had gone to Poonch as a driver of the Truck of respondent No. 4 and while coming back, he died in the Truck due to stress and strain of the journey. In the evidence, it also came to fore before the Commissioner that the deceased was found dead in the cabin of the Truck near Akhnoor on the Bank of river Chenab on 04.12.2007. The Police of Police Station, Akhnoor conducted the inquest proceedings in terms of Section 174 of Cr. PC but could not come out with the exact cause of death of the deceased. On the overall consideration of the evidence on record, the Commissioner came to the conclusion that the deceased had died due to stress and strain of the profession of driving and, therefore, died out of and in the course of his employment with respondent No. 4. The Commissioner, in terms of Section 4(1) (a) read with Schedule IV of the Act, awarded sum of Rs. 3,19,600/- payable by MA No. 636/2010 Page 3 of 14 the appellant-insurance Company. The claimants were also held entitled to simple interest @ 12 % to the dependents of the deceased from 29.08.2010 till the amount of compensation was actually paid. It is this award of the Commissioner, the appellant-insurance Company is aggrieved of and has challenged the same on more than one grounds.

5. Before proceeding further, it may be noted that the appeal under Section 30 of the Act is not as a matter of course. Under the scheme of the Act, the Commissioner is the last authority on facts. The Parliament has, therefore, advisedly restricted the scope of appeal only to substantial questions of law. Needless to say that the Act is welfare legislation aimed at protecting the poor workmen who suffer grievous injuries and death out of and in the course of their employment. In the backdrop of aforesaid legal position when the appeal preferred by the appellant-insurance Company is examined, I find that the appellant has formulated in as many as nine questions of law claiming that these are the substantial questions of law involved in the appeal. However, during the course of arguments, learned counsel for the appellant restricted his challenge to the order impugned on the following substantial questions of law:-

(1) That in the absence of any cogent and convincing evidence on record, the Commissioner committed an error by concluding that there existed a relationship of employer and employee between respondent No. 4 and the deceased. (2) That it has come on record that the deceased had died of cardiac arrest and in the absence of any medical evidence that the deceased had suffered the heart stroke/cardiac arrest due to stress and strain of the job, the Commissioner could not have come to the conclusion that the deceased had died due to accident arising out of and in the course of his employment.
MA No. 636/2010 Page 4 of 14

6. The aforesaid questions, claimed by the learned counsel for the appellant to be the substantial questions of law involved in the appeal, when subjected to close scrutiny, would reveal that the same are not the questions of law but are merely disputed questions of fact. These so called questions of law urged by the learned counsel for the appellant, therefore, cannot, by any stretch of reasoning, be held to be substantial questions of law as envisaged under Section 30 of the Act. After giving thoughtful consideration to the arguments of the learned counsel for the appellant on the several questions of law formulated in the memorandum of the appeal, I am of the opinion that the only substantial question of law that arise for determination in this appeal is as under:-

Whether the award of the Commissioner suffers from perversity?.

7. Learned counsel for the appellant has painstakingly taken me through the whole evidence recorded before the Commissioner. It is urged that although the claimants in the claim petition had not disclosed the cause of death of the deceased, yet during the course of recording of their evidence, it came to fore that the deceased had died of cardiac arrest. It is, thus, submitted that cardiac arrest is a natural cause of death and is not attributable to any stress and strain of the profession. He strenuously contends that there is not an iota of evidence on record brought by the claimants to even suggest that the deceased had died due to heart ailment which happened or aggravated by the stress and strain of driving. Learned counsel for the appellant, therefore, submits that the findings of fact recorded by the Commissioner that the deceased had died of cardiac arrest which occurred due to the stress and strain of the profession are not supported by any evidence and, therefore, perverse. The perversity is a substantial question of law is well settled, claims learned counsel for the MA No. 636/2010 Page 5 of 14 appellant. Learned counsel for the appellant also seriously disputes that there was any relationship of employee and employer between the deceased and respondent No. 4. In this regard, learned counsel submits that relationship between the deceased and respondent No. 4 was that of son and father and, therefore, there was no question of any relationship of employer and employee existing between the two, more so, when they were living in the same house and were running their household together. The findings of fact recorded by the Commissioner to the contrary are, therefore, perverse, urges the learned counsel for the appellant.

8. As stated above and is otherwise well settled, the Commissioner is final authority on facts and this Court while hearing appeal under Section 30 of the Act is not supposed to martial the evidence and come to a conclusion different from the one arrived at by the Commissioner. It is oft-repeated proposition of law that in a situation where, upon appreciation of evidence, two views are possible, the appellate Court would normally go by the view taken by the Court below. This, however, is subject to universally acknowledged exception that if the findings of fact and conclusions arrived at by the Court below are without any evidence or based on the evidence on which no reasonable person or ordinary prudence would come to such conclusion, the appellate Court may interfere. It is these findings of fact and conclusion that are known as perverse.

9. With a view to appreciate the contentions of the learned counsel for the appellant, I have carefully gone through the evidence on record.

10.From the reading of the claim petition as also the evidence that has come on record including the evidence of appellant-insurance Company, it is clear that the cause of death of the deceased was not known. He was found dead in the cabin while he was coming back from Poonch while MA No. 636/2010 Page 6 of 14 driving the Truck in question. It is on record that the deceased was on his trip to Poonch and while coming back when he reached Akhnoor, he died while sitting in his cabin. The inquest proceedings were initiated by the Police but the cause of death could not be ascertained. It is correct that no medical evidence was produced by the claimants to prove the cause of death. One of the claimant namely Inderjeet Kour in her statement has claimed that the death of the deceased was due to heart failure. It is a fact that none of the witnesses examined on behalf of the claimant were present on the spot and, therefore, whatever they stated was only hearsay. The circumstances attending the occurrence which are, otherwise gatherable from the evidence clearly point out that the exact cause of death of the deceased was not known to anybody. Even the police during the inquest proceedings could not find one. In these circumstances, the Commissioner was correct in coming to the conclusion that the deceased while being in the employment of respondent No. 4 died of an untoward mishap which could only be attributed to the strenuous nature of the job, the deceased had been performing. He was on a trip from Jammu to Poonch and was coming back. The terrain from Jammu to Poonch is hilly and treacherous and, therefore, any driver on the road would feel the stress and strain of arduous driving. The death of the deceased was thus, either wholly attributable to the strenuous driving or if it was from a pre- existing ailment, then due to aggravation by such stress and strain. In any case, in the absence of any proof on record that deceased had died of a natural death, it is to be presumed that the deceased died due to an untoward mishap which claimed his life while he was under and in the employment of respondent No. 4.

11.It also could not find from the evidence that the deceased was living with respondent No. 4 and, therefore, was driving the vehicle in his capacity as MA No. 636/2010 Page 7 of 14 son of the owner, rather, it has come on record in the shape of evidence of the claimants that the deceased was married and left behind his wife, one son and daughter.

12. The witnesses examined on behalf of the claimant were subjected to cross-examination by the appellant-insurance Company. From the cross- examination, I could not find that any suggestion was ever made to any of the witness to find out as to whether the deceased was living along with his father-respondent No. 4 or had taken a separate residence with his wife and children. It is not uncommon that a son is employed with his father, be it on a truck as driver or in a factory or any other establishment. The son having an independent family is to survive and would not work gratuitously for his father. The finding of fact recorded by the Commissioner on appreciation of evidence cannot, by any stretch of reasoning or imagination, can be said to be perverse. On this count also, I am not inclined to agree with the submissions made on behalf of the learned counsel for the appellant.

13.Learned counsel for the appellant referred to plethora of case law in support of his submissions taken note of hereinabove. It may be noted that the propositions of law cannot be applied indiscriminately without first appreciating the fact situation of a particular case. While there is no denying the proposition that in the absence of trustworthy evidence on record to hold that the deceased was employed by his father, the insurance Company cannot be made liable as the policy only indemnifies the insured against the liability of third party only. The cases cited by the learned counsel for the appellant, i.e, Jaspal Kaur and others Vs. Sukhminder Singh and another; 2016 ACJ 692 decided by the Punjab and Haryana High Court and United India Insurance Co. Ltd. Vs. Biakthuami and others; 2012 ACJ 1208 decided by the Gauhati High MA No. 636/2010 Page 8 of 14 Court may support the proposition of law propounded by the learned counsel for the appellant but the fact remains that in both the aforesaid cases, the High Court was hearing an appeal arising out of the claim petition filed under Section 166 of the Motor Vehicles Act. The appellate Court under Motor Vehicles Act is competent to appreciate the evidence and come to a conclusion different from the one arrived at by the Motor Accident Claims Tribunal. The position of law under the Act is different. The appeal lies only on a substantial questions of law and the findings of fact determined by the Commissioner are treated to be final. There lies a very subtle distinction between the appeals arising under the Act and the appeals arising out of the proceedings under the Motor Vehicles Act. Otherwise also, I do not find any evidence on record to suggest any collision between the claimants and respondent No. 1. The mere fact that the deceased had a family of his own, i.e, wife and two children would be sufficient to presume that he was not rendering gratuitous services to respondent No. 4 but was doing it for consideration and for earning his and his family‟s livelihood. The judgments cited on the issue by the appellant are, therefore, distinguishable and would not be applicable to the fact situation arising in the case in hand.

14.This brings me to the contention of the learned counsel for the appellant strenuously urged by him that the deceased had died of cardiac arrest and in the absence of any cogent and trustworthy evidence on record to suggest that the cardiac arrest had occurred due to stress and strain of the job, the Tribunal committed serious factual error in coming to the conclusion that the deceased had died in an accident arising out of and in the course of his employment with respondent No. 4.

15.Besides relying upon judgments of several High Courts delivered from time to time on the issue, the learned counsel for the appellant placed MA No. 636/2010 Page 9 of 14 strong reliance on the judgment rendered by the Supreme Court in the case of Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and another; 2007 ACJ 1. Even in the case of Shakuntala Chandrakant Shreshti (supra), the Supreme Court though decided the matter against the claimant but directed that the amount already paid to the claimant shall not be refunded. In the instant case, as is evident from the record, Rs. 2 lacs from the awarded amount has already disbursed to the claimants. Even if I agree with the contention by the learned counsel for the appellant, still the amount already paid to the claimants cannot be refunded to the appellant. That, however, is besides the point

16.In the case cited by the learned counsel for the appellant, the deceased had died while discharging his duties. The autopsy was conducted wherein the cause of death was opined as cardiac arrest due to rupture of aortic aneurysm. Apart from the aforesaid medical evidence, there was no evidence brought on record by the claimants to establish that the cardiac arrest was due to the strain of the work. In the context of the aforesaid fact situation, the Supreme Court held that only because a person had died of heart attack, the same would not give rise to automatic presumption that the same was by way of accident. A person may be suffering from heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance in this behalf. On the side lines, the Supreme Court also went on to hold that the onus to prove that it was the work related strain which had attributed or aggravated the injury is upon the claimant. From a careful perusal of the aforesaid judgment it would transpire that in the aforesaid case, there was no dispute with regard to cause of death. It was due to heart attack and in that context, the Hon‟ble Supreme Court observed that it was for the claimant to show that the heart attack was due to the work related stress and strain. I fail to understand MA No. 636/2010 Page 10 of 14 how the judgment rendered by the Supreme Court in the aforesaid case is applicable to the fact situation of this case where, admittedly, the cause of death is not known and it is fairly established that the deceased was on a trip from Jammu to Poonch and back and when he was coming back, he was found dead in the cabin of the Truck near Akhnoor. In such situation, the doctrine of "Res ipsa loquitur" would be attracted.

17.Literal meaning of "Res ipsa loquitur" is that "thing speaks for itself". The circumstances in which the deceased met with untoward death speak for themselves and there should be no manner of doubt that the death of the deceased was nothing but as a result of stress and strain of driving in the hilly terrain from Jammu to Poonch and back. In the view I have taken, I am supported by the judgment of the Supreme Court rendered in the case of Mst. Parampal Singh Vs. M/s National Insurance Company and another; (2013) 3 SCC 409 decided on 14.12.2012. The facts of the case of Param Pal Singh (supra) are identical to the facts of the case in hand. In the aforementioned case, the deceased was employed as truck driver. On 17.07.2002, he was driving a Truck in connection with commercial transport operation from Delhi to Nimiaghat. When the truck reached near about of Nimiaghat, the deceased felt giddy and, therefore, parked the vehicle on the roadside near a hotel and soon thereafter, he fainted. The deceased was removed to a nearby hospital, where the doctors declared him brought dead. The claim petition was filed by the claimants before the Commissioner alleging that the death of the deceased was due to stress and strain of continuous driving in the course of his employment with the employer. In the backdrop of the aforesaid facts situation, the question that arose for determination before the Supreme Court was whether the death of the deceased was in an accident arisen out of and in the course of his employment with the employer. The Hon‟ble MA No. 636/2010 Page 11 of 14 Supreme Court after taking note of case law on the subject including the English law, came to the conclusion that there was causal connection to the death of the deceased with that of his employment as Truck driver. What was held by the Supreme Court in the aforesaid judgment in paragraph 29 is as under:-

"...........Applying the various principles laid down in the above decisions to the facts of this case, we can validly conclude that there was CAUSAL CONNECTION to the death of the deceased with that of his employment as a truck driver. We cannot lose sight of the fact that a 45 years old driver meets with his unexpected death, may be due to heart failure while driving the vehicle from Delhi to a distant place called Nimiaghat near Jharkhand which is about 1152 kms. away from Delhi, would have definitely undergone grave strain and stress due to such long distance driving. The deceased being a professional heavy vehicle driver when undertakes the job of such driving as his regular avocation it can be safely held that such constant driving of heavy vehicle, being dependant solely upon his physical and mental resources & endurance, there was every reason to assume that the vocation of driving was a material contributory factor if not the sole cause that accelerated his unexpected death to occur which in all fairness should be held to be an untoward mishap in his life span. Such an „untoward mishap‟ can therefore be reasonably described as an „accident‟ as having been caused solely attributable to the nature of employment indulged in with his employer which was in the course of such employer‟s trade or business........"

18.For arriving at the aforesaid conclusion, the Supreme Court even discussed the decision rendered by the Supreme Court in the case of Shakuntala Chandrakant Shreshti (supra) heavily relied upon by the learned counsel for the appellant in the instant case. All aspects of the issue as were highlighted by the learned counsel for the appellant in the instant case were duly considered and analysed by the Supreme Court. The discussion by the Hon‟ble Supreme Court reflected from paragraph 21 and 26 answers all the questions raised by the appellant and even those not even contemplated by the appellant. At the cost of making the judgment a bit voluminous, I deem it absolutely necessary to reproduce the aforesaid paragraphs numbered from 21 to 26, which read as under:-

MA No. 636/2010 Page 12 of 14
"21. We are not oblivious that an accident may cause an internal injury as was held in Fenton (Pauper) V. J. Thorley & Co. Ltd., (1903) AC 443, by the Court of Appeal.
"...I come, therefore, to the conclusion 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"

Lord Lindley opined:

"The word „accident‟ is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended an unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended any unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word „accident‟ is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events.

22. There are a large number of English and American decisions, some of which have been taken note of in Employees' State Insurance Corporation, 1996 ACJ 1281 (SC), in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act.

The principles are:

(1) There must be a causal connection between the injury and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

(3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the facts of each case.

23. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature MA No. 636/2010 Page 13 of 14 of the work and the situation in which the deceased was placed.

24. There is a crucial link between the causal connection of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction.

25. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred.

26. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia are:

(1) Stress and strain arising during the course of employment;
(2) Nature of employment; and (3) Injury aggravated due to stress and strain."

19.In view of the discussion made above and the position of law adumbrated by the Supreme Court and summed up in the case of Mst. Parampal Singh, I find no merit in this appeal and the same is, accordingly, dismissed. Commissioner shall release the balance amount in favour of the petitioner immediately.

(Sanjeev Kumar) Judge Jammu.

20.08.2018 Tarun MA No. 636/2010 Page 14 of 14