Karnataka High Court
National Insurance Co Ltd vs Smt Shahida Bhanu on 26 July, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2023:KHC:27810
MFA No. 3514 of 2013
C/W MFA No. 3339 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2023
R
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 3514 OF 2013 (WC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 3339 OF 2013
IN MFA NO.3514/2013
BETWEEN:
1. SMT. SHAHIDA BANU,
W/O. LATE MD. NAJIR
@ NAJIR @ ABDUL NAJIR,
AGED ABOUT 46 YEARS.
2. MD. SIBGATHULLA,
S/O. LATE MD. NAJIR
@ NAJIR @ ABDUL NAJIR,
AGED ABOUT 23 YEARS.
Digitally signed by
VIJAYALAKSHMI B N
Location: HIGH 3.
COURT OF MD. RAHAMATHULLA @
KARNATAKA RAHAMATHULLA,
S/O. MD. NAJIR
@ NAJIR @ ABDUL NAJIR,
AGED ABOUT 21 YEARS.
4. MOHIBULLA @ MUHEEBULLA,
S/O. LATE MD. NAJIR
@ NAJIR @ ABDUL NAJIR,
AGED ABOUT 20 YEARS.
-2-
NC: 2023:KHC:27810
MFA No. 3514 of 2013
C/W MFA No. 3339 of 2013
5. NIHA KOUSER,
D/O. LATE MD. NAJIR
@ NAJIR @ ABDUL NAJIR,
AGED ABOUT 15 YEARS,
MINOR HENCE REPRESENTED
BY NATURAL GUARDIAN AND MOTHER
SHAHIDA BANU - APPELLANT NO.1
ALL ARE R/O. NALLUR VILLAGE,
CHANNAGIRI TALUK,
DAVANGERE DISTRICT - 577 221.
...APPELLANTS
(BY SRI. B. PRAMOD, ADVOCATE)
AND:
1. M.N. VEERENDRA PATIL,
S/O NAGANNA GOWDA,
AGED MAJOR,
OWNER OF SRI. LAKSHMI EXPRESS
BUS BEARING NO. KA-17-B-108,
R/O. MEDAGINAKERE,
JAGALUR TALUK,
DAVANAGERE DISTRICT - 577 553.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICE,
LAKSHMI NAGAR,
CHITRADURGA - 577 501.
...RESPONDENTS
(BY SRI. SHUBAM, ADVOCATE FOR
SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED
23.08.2013)
-3-
NC: 2023:KHC:27810
MFA No. 3514 of 2013
C/W MFA No. 3339 of 2013
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT DATED 22.02.2013 PASSED IN KA HA CHI/KA NA
PA/F/CR-315/2012 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION,
CHITRADURGA DISTRICT, CHITRADURGA, ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.3339/2013
BETWEEN:
1. NATIONAL INSURANCE CO., LTD.,
CHITRADURGA BRANCH,
THROUGH ITS REGIONAL OFFICE,
# 144, SUBHARAM COMPLEX,
M.G.ROAD, BANGALORE - 560 001,
REP. BY ITS ASSISTANT MANAGER
MR. R. LAKSHMAN RAO.
...APPELLANT
(BY SRI. SHUBAM, ADVOCATE FOR
SRI. B.C. SEETHARAMA RAO, ADVOCATE)
AND:
1. SMT. SHAHIDA BHANU,
AGED ABOUT 46 YEARS,
W/O MR. MOHAMMED NAZIR
@ NAJIR @ ABDUL NAJIR.
2. MR. MOHAMMED SIBGATHULLA,
AGED ABOUT 23 YEARS.
3. MR. MOHAMMED RAHAMATHULLA @
RAHAMATHULLA,
AGED ABOUT 20 YEARS.
-4-
NC: 2023:KHC:27810
MFA No. 3514 of 2013
C/W MFA No. 3339 of 2013
4. MR. MOHIBULLA @ MUHIBULLA,
AGED ABOUT 18 YEARS.
5. KUM. NIHA KAUSAR,
AGED ABOUT 14 YEARS,
BEING MINOR, REP. BY HER MOTHER
THE FIRST RESPONDENT HEREIN.
NO.2 TO 5 ARE CHILDREN OF LATE MOHAMMED
NAJIR @ NAJIR @ ABDUL NAJIR,
ALL ARE RESIDENTS OF NALLUR VILLGE,
CHANNAGIRI TALUK,
DAVANGERE DISTRICT - 577 003.
6. SRI.M.N. VEERENDRA PATIL,
MAJOR IN AGE,
S/O NAGANNA GOWDA,
R/O. MEDAGINAKERE,
JAGALUR TALUK,
DAVANAGERE DISTRICT - 577 004.
(OWNER OF BUS NO.KA.17/B-108)
...RESPONDENTS
(BY SRI. B. PRAMOD, ADVOCATE FOR R1 TO R5;
R5 IS MINOR REPRESENTED BY R1;
R6 IS SERVED)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT DATED 22.02.2013 PASSED IN WCA
PÁCa/PÁ£À¥À/J¥sï/¹Dgï-315/2012 ON THE FILE OF THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, CHITRADURGA DISTRICT, CHITRADURGA,
AWARDING A COMPENSATION OF RS.3,38,880/- WITH
INTEREST @ 12%.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-5-
NC: 2023:KHC:27810
MFA No. 3514 of 2013
C/W MFA No. 3339 of 2013
JUDGMENT
These appeals are filed by the claimants and the Insurance Company respectively under Section 30(1) of the Employees Compensation Act, 1923, (hereinafter referred to as 'EC Act' for short), challenging the order passed in Case No.KA HA CHI/KA NA PA/F/CR-315/2012 dated 22.02.2013 by the Labour Officer and Commissioner of Employee's Compensation, Chitradurga District, Chitradurga.
MFA No.3514/2013 is filed by the claimants for enhancement of compensation. MFA No.3339/2013 is filed by the Insurance Company questioning the impugned order contending that the death of the deceased has not occurred out of and in the course of employment.
2. The brief facts of the case are that on 15.06.2011, the deceased after his duty had parked his vehicle near Challakere, Bannimudi place, NH-19, Bellary road and had slept in the bus. On 16.06.2011 at about 5.00 a.m., he got heart attack and succumbed to the -6- NC: 2023:KHC:27810 MFA No. 3514 of 2013 C/W MFA No. 3339 of 2013 same. He was shifted to Government Hospital, Challakere, the Doctor had declared that the deceased dead. Therefore, the claimants have filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation.
3. Heard the arguments on both sides and perused the records.
4. Learned counsel for the claimants submitted that the deceased was working as a Driver in the bus and under the employment of respondent No.1, who is owner of the bus and when the deceased had halted the bus at Bellary road which is on the way to his route work, on 16.06.2011 at about 5.00 a.m. during his sleep, he suffered heart attack and died. Therefore, he submitted that the death of the deceased is out of and in the course of employment. He further submitted that the death of the deceased was caused on 16.06.2011 and the monthly wage of deceased ought to have taken at Rs.8,000/- as per amendment with effect from 31.05.2010, but, learned -7- NC: 2023:KHC:27810 MFA No. 3514 of 2013 C/W MFA No. 3339 of 2013 Commissioner has taken the wage at Rs.4,000/- per month, which is erroneous. Therefore, he prays for enhancement of compensation.
5. On the other hand, learned counsel for the Insurance Company submitted that deceased died while he was sleeping during night and he was not driving the bus. Therefore, it cannot be said that death of deceased is out of and in the course of employment. Hence, claim petition is not maintainable. Therefore, prays to allow the appeal and set aside the order passed by the learned Commissioner.
6. The undisputed facts are that the deceased was working as a driver in the Bus bearing Reg.No.KA-17/B- 108 under the employment of respondent No.1, who is the owner of the bus. The bus was plying between Challakere and Shivamogga. On 15.06.2011, the deceased drove the bus from Shivamogga to Challakere and at the place near Bannimudi on NH-9 road, halted the bus during night time for taking rest and to sleep. On 16.06.2011, at 5.00 a.m., -8- NC: 2023:KHC:27810 MFA No. 3514 of 2013 C/W MFA No. 3339 of 2013 the deceased had suffered heart attack and died. Therefore, claimants have filed claim petition contending that the death of the deceased is out of and in the course of employment. Learned Commissioner has allowed the claim petition and granted compensation by holding that death of deceased is out of and in the course of employment.
7. Upon submissions of learned counsel for both the parties and on perusal of records, the following substantial questions of law arise for consideration:-
1. Whether, under the facts and circumstances involved in the case, death of driver of an insured vehicle in non-usage of vehicle at the time of his death due to heart attack and amounts the death is arising out of and in the course of employment?
2. Whether, under the facts and circumstances involved in the case, monthly wage considered by the learned Commissioner at Rs.4,000/- is correct?-9-
NC: 2023:KHC:27810 MFA No. 3514 of 2013 C/W MFA No. 3339 of 2013 Substantial question of law No.1:-
8. The claim petition under the EC Act is maintainable where a workman dies out of and in the course of employment. Section 3 of the EC Act defines the meaning of 'arising out of' and 'in the course of employment'. Injury or death may not be necessarily to be occurred actually while working but injury or death caused in connection with employment that would also be called as injury or death occurred 'arising out of' and 'in the course of employment'. There is a difference between, 'arising out of' and 'in the course of employment'. Therefore, upon interpreting this definition, 'out of employment' means the injury or death occurred, may be, virtually in the work or in relation to the work and at that time, such injury or death can be considered as it has occurred 'out of employment'.
9. Upon considering the factual matrix involved in the case, the deceased was driver in the bus and has halted the bus on NH-19 road for sleeping and while he was
- 10 -
NC: 2023:KHC:27810 MFA No. 3514 of 2013 C/W MFA No. 3339 of 2013 sleeping, he suffered heart attack and died. The deceased may not be driving the bus, but the deceased was in relation to the work. The deceased died while he was sleeping inside the bus. Therefore, as per Section 3 of the EC Act, the death of the deceased is to be held that it is arising out of and in the course of employment.
10. In a very same and similar facts and circumstances of the case, this Court in the case of the Divisional Manager, National Insurance Company Ltd. vs. Shankaramma and others reported in 2022 SCC Online KAR 1528, has held that the death of driver of an insured vehicle in non-usage of vehicle at the time of his death due to heart attack, it cannot absolve liability of the Insurance Company.
11. In the case cited above, the driver of said lorry died before reaching the destination point due to heart attack. In the present case, the driver had completed the trip i.e., completing trip from Shivamogga to Challakere and on the next day morning, the driver was about to
- 11 -
NC: 2023:KHC:27810 MFA No. 3514 of 2013 C/W MFA No. 3339 of 2013 commence his next trip from Challakere to Shivamogga. In this interval period, the driver has halted the bus and during night hours, while he was sleeping, he suffered heart attack and died. The death of deceased occurred in the bus is not disputed. Even though the deceased had completed his trip from Shivamogga to Challakere, he was about to commence the next day trip in the morning i.e., from Challakere to Shivamogga. Even though the deceased was not driving the bus at the time of his death, but had halted the bus at night for sleep and he is to commence his work on the next day morning. But, unfortunately he suffered heart attack and died while sleeping. Therefore, considering the facts and circumstances of the case, the death of the deceased has to be considered as per doctrine of 'notional extension of employment' as interpreted by Hon'ble Supreme Court in a catena of decisions. This doctrine of notional extension of employment is linked to 'out of employment'. Only in cases where the driver was driving the vehicle and death has occurred due to heart attack, is not the only principle
- 12 -
NC: 2023:KHC:27810 MFA No. 3514 of 2013 C/W MFA No. 3339 of 2013 to say that the death is due to 'arising out of and in the course of employment'. Considering the definition of 'arising out of' and 'in the course of employment' and 'doctrine of notional extension of employment', the death of deceased is certainly out of employment. Therefore, under these circumstances, the above cited judgment is applicable and it can be held that the death of deceased has occurred out of employment as per definition under Section 3 of the EC Act. Accordingly, I answer the substantial question of law No.1 in the Affirmative. Substantial question of law No.2:-
12. In the present case, learned Commissioner has considered monthly wage of the deceased at Rs.4,000/-, which is not correct. The incident had caused on 16.06.2011. Section 4 (1B) of EC Act was amended with effect from 31.05.2010, the slab of monthly wage was increased to Rs.8,000/-. This should be the income to be taken at maximum level in case of injury or death caused to workman for determining compensation but not less
- 13 -
NC: 2023:KHC:27810 MFA No. 3514 of 2013 C/W MFA No. 3339 of 2013 than that. Learned Commissioner has committed error in considering the monthly wage of the deceased at Rs.4,000/- only. As per Central notification issued by virtue of Section 4 (1B) of EC Act, monthly wage of deceased is considered as Rs.8,000/-. As per Ex.P.6 - Election ID card, the age of the deceased was proved to be 53 years. Therefore, the relevant factor applicable is 142.68. Accordingly, the loss of dependency is hereby re-assessed and quantified as under:
Rs.8,000 x 50% x 142.68 = Rs.5,70,720/- Accordingly, a sum of Rs.5,70,720/- is awarded under the head 'loss of dependency'.
13. Further compensation of Rs.5,000/- is awarded under the head 'funeral expenses and obsequies ceremony'. Thus, claimants are entitled for total compensation of Rs.5,75,720/-. Hence substantial question of law No.2 is answered in the Affirmative.
14. The Labour Court has awarded the compensation of Rs.3,38,880/-, but the claimants are entitled to total
- 14 -
NC: 2023:KHC:27810 MFA No. 3514 of 2013 C/W MFA No. 3339 of 2013 compensation of Rs.5,75,720/-. Therefore, the claimants are entitled to enhanced compensation of Rs.2,36,840/- (Rs.5,75,720 - Rs.3,38,880) with interest at the rate of 12% p.a., from the date of accident till realization, in addition to what has been awarded by the Tribunal. Accordingly, I proceed to pass the following:
ORDER i. MFA No.3514/2013 filed by the claimants is allowed-in-part.
ii. MFA No.3339/2013 filed by the Insurance Company is hereby dismissed.
iii. The judgment and award passed by the Labour Officer and Commissioner of Employee's Compensation, Chitradurga District, Chitradurga in Case No.KA HA CHI/KA NA PA/F/CR-315/2012 dated 22.02.2013 is hereby modified holding that the claimants are entitled for enhanced compensation of Rs.2,36,840/- with interest @ 12% p.a., from the
- 15 -
NC: 2023:KHC:27810 MFA No. 3514 of 2013 C/W MFA No. 3339 of 2013 date of accident till its realization in addition to what has been awarded by the Tribunal/Labour Court.
iv. Costs made easy. v. Ordered accordingly. vi. The amount in deposit, if any, is ordered to be
transmitted to the Tribunal/Labour Court, forthwith. vii. In view of the disposal of the appeals, pending I.A.2/2013 in MFA No.3339/2013 does not survive for consideration.
Sd/-
JUDGE MH/-
List No.: 2 Sl No.: 1CT:SNN