Karnataka High Court
The Branch Manager vs Smt Jubeda W/O. Alisab Walikar on 19 June, 2024
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NC: 2024:KHC-D:8223
MFA No. 102375 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 102375 OF 2020 (ECA)
BETWEEN:
THE BRANCH MANAGER, SHRIRAM GENERAL INSURANCE
CO. LTD., E-S, EPIP, SITAPUR INDUSTRIAL AREA, JAIPUR,
RAJASTHAN-302022, NOW REP. BY ITS AUTHORIZED SIGNATORY
...APPELLANT
(BY SRI. S. K. KAYAKAMATH, ADVOCATE)
AND:
1. SMT. JUBEDA W/O. ALISAB WALIKAR,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK.
2. MOULASAB S/O. ALISAB WALIKAR,
AGE: 22 YEARS, OCC: NIL.
3. SABEENA D/O. ALISAB WALIKAR,
AGE: 20 YEARS, OCC: NIL.
4. DILSHAD S/O. ALISAB WALIKAR,
AGE: 18 YEARS, OCC: NIL, ALL ARE R/O. BATAKURKI,
TQ: RAMDURG, DIST: BELAGAVI-590001.
Digitally signed
by MANJANNA
E 5. SURESH S/O. APPANNA,
Location: HIGH AGE: MAJOR, OCC: BUSINESS, R/O. LOKAPUR,
COURT OF
KARNATAKA TQ: MUDHOL, DIST: BAGALKOT-587313.
...RESPONDENTS
(BY SRI. ASHOK A. NAIK, ADV. FOR R1 TO R4;
NOTICE TO R5 HELD SUFFICIENT)
THIS MFA IS FILED U/S.30(1) OF THE EMPLOYEES
COMPENSATION ACT, PRAYING TO CALL THE RECORDS, HEAR THE
PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE
THE IMPUGNED JUDGMENT AND AWARD DATED 31.10.2019 PASSED BY
THE SENIOR CIVIL JUDGE AND COMMISSIONER UNDER EMPLOYEES
COMPENSATION ACT, RAMDURG, IN E.C.A NO.10/2017, WITH COST IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:8223
MFA No. 102375 of 2020
JUDGMENT
This appeal is filed by the Insurance Company challenging the validity of the judgment and award passed in E.C.A. No.10/2017 dated 31.10.2019 on the file of the Senior Civil Judge and Commissioner, Ramdurg, under Employees Compensation Act, 1923.
2. For the sake of convenience, the parties are referred to as per their rank referred to in the claim petition before the Commissioner.
3. The brief facts which are necessary for disposal of the appeal are as under:
4. The claim petition was filed under the provisions of the Workmen's Compensation Act, 1923 (hereinafter referred to as "W.C. Act" for short) contending that one Alisab Moulasab Walikar was working as a driver in a truck bearing registration No.MH-04/BU-1755 under respondent No.5, the owner of truck. On 31.01.2012 Alisab had been to Bhadravati for unloading cement in the truck from Bagalakote. After passing 20 k.m. from Bagalakote, one of tyre was burst and said fact was informed to respondent No.5. Thereafter, by changing a tyre at the spot, again the driver proceeded towards Bhadravati. After -3- NC: 2024:KHC-D:8223 MFA No. 102375 of 2020 reaching Bhadravati, he parked the truck in the premises of Girish Traders for unloading of cement bags. On 04.02.2012, Alisab was sleeping within the limits of Kanakatti C.N. road, Bhadravati to take rest. But during night hours, deceased suffered massive heart attack and died. It is contended that the deceased drove the truck continuously viz., day and night from Bagalakote to Bhadravati with heavy load of cement bags and undergone much stress and strain. As a result of said stress, he suffered massive heart attack. The death of the deceased was due to stress and strain by continuous driving of heavy goods and this was happened during the course and out of the employment. Therefore, the claimants being the dependants of the deceased, having lost their bread winner, laid a claim awarding suitable compensation.
5. The commissioner raised necessary issues and after hearing the oral and documentary evidence on record, allowed the claim petition and granted a sum of Rs.7,33,815/- as compensation. Being aggrieved by the same, the Insurance Company has preferred this appeal.
6. Sri.S.K.Kayakamath, learned counsel appearing for the appellant - Insurance Company vehemently contended that -4- NC: 2024:KHC-D:8223 MFA No. 102375 of 2020 the Commissioner committed a grave error in fastening the liability on the Insurance Company, as there was no nexus between the death of the deceased and his employment; no vehicle is involved and accident has not taken place, whereas, it was a massive heart attack of the deceased for personal reasons, particularly, as per the postmortem report, the deceased had consumed alcohol. Therefore, the Insurance Company cannot be penalized for the death of deceased on personal reasons. Hence, he prayed to allow the appeal. The counsel for appellant relied upon following decisions:
"i. Mamtaj Bi Bapusab Nadaf and others reported in (2010) 10 SCC 536 ii. Malikarjuna G. Hiremath vs. The Branch Manager, The Oriental Insurance Co. Ltd. and another reported in (2009) 13 SCC 405 iii. Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali and another reported in (2007) 11 SCC 668 iv. Bajaj Allianz General Insurance Company vs.Kirnmai and others in MFA No.5142/2010
7. The counsel for the claimants contended that the Commissioner for Employee's compensation after considering the oral and documentary evidence on record, held that the incident was occurred during the course of the employment -5- NC: 2024:KHC-D:8223 MFA No. 102375 of 2020 under the owner of the truck - respondent No.1. The deceased Alisab during the course of the employment under respondent No.1 died due to stress and strain and as the offending truck was duly insured with respondent No.2 - Insurance Company, it is liable to pay the compensation. Hence, he prayed to dismiss the appeal filed by the appellant - Insurance Company.
8. The counsel for the claimants relied upon the following decisions:
"i. Smt.Dariyao Kanwar and others vs.
M/s.United India Insurance Co. Ltd. and
another reported in (2023) 11 SCR 587;
ii. Manager, Royal Sundaram Alliance Insurance
Co. Ltd. vs. Bharati Rajaram Mouli and others reported in 2019 ACJ 3086
9. In view of the submission made by the counsel for appellant and respondents, the following points that would arise for Court's consideration are as follows:
"i. Whether the Commissioner / Trial Court acted perversely and contrary to law in entertaining the claim petition for death of a workman, who had met with an accident during the course and out of the employment involving the use of the vehicle insured with the appellant - Insurance Company, who has -6- NC: 2024:KHC-D:8223 MFA No. 102375 of 2020 issued a motor vehicle policy to comply with Section 147 of the Motor Vehicles Act?
ii. Whether the Commissioner / Trial Court acted perversely and contrary to law in ignoring the defence of the appellant that death of deceased was due to heart attack, more particularly, due to consumption of alcohol, which has not resulted out of employment?"
10. In the light of the points raised by this Court, this Court re-appreciated the contentions put-forth by the learned counsel for the parties.
11. In the instant case, deceased Alisab was working as driver in truck bearing registration No.MH-04/BU-1755 since two years prior to the accident. On 31.01.2012, deceased Alisab took the truck to Bhadravati for unloading the cement in the said truck from Bagalakote, where he parked the vehicle in the premises of Girish Traders for unloading of cement bags and the driver Alisab was taking rest and during night hours, deceased suffered massive heart attack and died, due to stress and strain factor. It appears that as on the date of the incident, driver was working under respondent No.5/owner of the truck. This aspect is not disputed by any parties. Further, the death was occurred during the course of employment. -7-
NC: 2024:KHC-D:8223 MFA No. 102375 of 2020
12. Now a question would arose, whether death of Alisab was out of the employment. From the perusal of the oral evidence of P.W1 and the contents of Exs.P1 and Ex.R1, it appears that deceased Alisab drove the vehicle consistently. Admittedly, as on the date of accident, deceased Alisab was aged about 47 years. He meets with his unexpected death, may be due to heart failure during the course of employment, as mentioned in Ex.P5 - postmortem examination report. 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 and endurance, there was every reason to assume that the avocation 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 nature of employment indulged in with his employer which was in the course of such employer's trade or business.
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NC: 2024:KHC-D:8223 MFA No. 102375 of 2020
13. The similar view was expressed by the Hon'ble Apex Court in the cases of North East Karnataka Road Transport Corporation vs. Sujatha1; Ved Prakash Garg vs. Premi Devi and others2; and in the case of National Insurance Co. Ltd., vs. Prembai Patel and others3.
14. The Insurance Company has taken a contention that the deceased Alisab died due to consumption of alcohol which resulted in heart attack and hence, the death is not under the course of employment and out of the employment. Hence, it is not liable to pay the compensation.
15. The American Heart Association (AHA) Trusted Source explains that drinking excess alcohol can raise triglyceride levels in the blood. High triglyceride levels, in combination with either excess low-density lipoprotein cholesterol or insufficient high-density lipoprotein cholesterol, can lead to fatty buildups in the artery walls. This increases the risk of heart attack and stroke. 1 (2009) 11 SCC 514 2 (1997) 8 SCC 1 3 (2005) 6 SCC 172 -9- NC: 2024:KHC-D:8223 MFA No. 102375 of 2020
16. According to the National Institute on Alcohol Abuse and Alcoholism Trusted Source, alcohol can affect the heart in the following ways:
a) Alcoholic cardiomyopathy: This type of heart disease enlarges and distorts the heart, weakening the muscle and preventing it from pumping blood efficiently.
b) Arrhythmias: A person has an arrhythmia when their heart beats too fast, too slowly, or irregularly.
c) Stroke: A stroke can occur when blood does not flow to the brain properly, leading to the death of brain cells.
d) High blood pressure, or hypertension: This describes high pressure within blood vessels. It can occur when blood vessels narrow or there is more fluid in the body than expected.
17. As alcohol has a high calorie content, a person may gain weight through drinking, leading to high blood pressure. High blood pressure is one of the most important risk factors for having a heart attack or a stroke. Other parts of the body that heavy drinking can affect include the liver, kidneys, pancreas, and immune system. Excessive alcohol use cannot directly cause a heart attack, but can increase a person's heart attack
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NC: 2024:KHC-D:8223 MFA No. 102375 of 2020 risk. Whereas, in the instant case, the driver Alisab drove the vehicle day and night and hence, the driver used to have physical and mental stress due to long driving. Therefore, the expert opinion i.e., opinion of the Doctor on the postmortem report, on the cause of death is to be upheld. As per the postmortem examination report, cause of death is due to heart attack. Since the deceased died during the course of employment, it could be construed that, death of driver - Alisab was out of the employment. Therefore, Insurance Company cannot be escaped from its liability.
18. In view of the ratio laid down in the decisions cited supra and the facts and circumstances of the present case, the death of Alisab was during the course of employment. If the driver Alisab was died in an accident, then under such circumstances, the Insurance Company could be held liable, as in the Insurance Policy, there was no limit prescribed.
19. So far as quantum is concerned, at the time of accident, the deceased Alisab was aged about 47 years, as per Ex.P5. In order to prove the wage of the deceased, the claimants have not produced any documents. The Tribunal taken the income of the deceased at Rs.9,000/- per month, but
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NC: 2024:KHC-D:8223 MFA No. 102375 of 2020 as per the notification dated 31.05.2020 issued by the Ministry of Labour and Employment Notification, the maximum wage was Rs.8,000/- per month. So the relevant factor applicable is 163.07 as per schedule 4 of Section 4 of the Employees Compensation Act, 1923. As per Section 4(a) of the Act, the amount equal to monthly wages 50% of the deceased employee and multiplied by the relevant factor. Therefore, the claimants are entitled for the compensation as under:
50% of the salary X factor 163.07 (Rs.4,000 X 163.07 = Rs.6,52,280/-)
20. Hence, the claimants are entitled for compensation of Rs.6,52,280/- and as per Section 4(a) of the Employees Compensation Act, the interest at 12% simple is levied on compensation amount which shall be paid by appellant -
Insurance Company from expiry of one month from the date of accident till amount is deposited. Further, the appellant - Insurance Company is liable to pay compensation to the claimants. Accordingly, I pass the following:
ORDER
(i) The appeal filed by the Insurance Company is partly allowed. The compensation amount
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NC: 2024:KHC-D:8223 MFA No. 102375 of 2020 awarded by Commissioner at Rs.7,33,815/- is reduced to Rs.6,52,280/-.
(ii) The claimants are entitled for compensation of Rs.6,52,280/- alongwith interest at the rate of 12% per annum.
(iii) The appellant - Insurance Company to deposit the amount of Rs.6,52,280/- alongwith interest at the rate of 12% per annum payable after one month from the date of incident till amount is deposited.
Sd/-
JUDGE RSH/ct-an List No.: 2 Sl No.: 37