Bombay High Court
United India Insurance Co. Ltd. vs Radhabai Wd/O Marotrao Kharate And Ors. on 13 December, 2007
Equivalent citations: 2008(2)BOMCR441, 2008(2)MHLJ741, 2008 LAB. I. C. (NOC) 669 (BOM.) (NAGPUR BENCH), 2008 (3) AJHAR (NOC) 756 (BOM.) (NAGPUR BENCH) 2008 (3) ABR (NOC) 352 (BOM.) (NAGPUR BENCH), 2008 (3) ABR (NOC) 352 (BOM.) (NAGPUR BENCH)
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
JUDGMENT B.P. Dharmadhikari, J.
1. By this appeal filed under Section 30 of the Workmen's Compensation Act, 1923, the Insurance Company is challenging the judgment dated 30-3-1990 delivered by the Commissioner for Workmen's Compensation, Yavatmal, in Workmen's Compensation Case No. 11 of 1988. The said case was filed by relatives of deceased employee-Tukaram Kharate claiming compensation on account of accidental death of said Tukaram on 2-5-1987 in the night hours. The Commissioner has awarded compensation of Rs. 82,380/- with 6% interest from 2-5-1987 till payment in full. This Court has by order dated 12-4-1991 permitted the present respondents No. 1 and 2 to withdraw the amount by furnishing security. However, on 28-10-1993, that order came to be modified and 50% of share of each of these respondents No. 1 and 2 was only permitted to be withdrawn without furnishing any security. On 25-4-2003, this Court permitted respondent No. 3 to withdraw his share. It is, therefore, apparent that only share of respondent No. 4 and half share of respondent Nos. 1 and 2 each is now lying in balance with the Commissioner. In other words, half of the amount deposited has been withdrawn by the claimants.
2. The present respondents No. 1 to 4 claimed before the Commissioner that Tukaram was working as Pumpman with respondent No. 5-Sugar factory and his date of birth was 9-7-1957. He was on duty in shift commencing from 8 PM on 1-5-1987 and ending at 4 AM in the morning of 2-5-1987. While on duty, he expired at 3.45 AM in the night. They stated that it was on account of receipt of personal injury by him and such injury was caused because of lifting of heavy load. They joined their employer respondent No. 5 and present appellant Insurance Company as party respondent before the Commissioner. The employer filed written statement admitting accidental death of Tukaram and also admitted that accident arose out of and during the course of employment. The Insurance Company filed the written statement contending that while changing clothes after his duties, Tukaram collapsed and died due to heart attack. They contended that there was no connection between death and his employment and that there was no injury to Tukaram because of his employment. The present respondent No. 2 widow of Tukaram examined herself. She disclosed that monthly salary of Tukaram was Rs. 1,100/- and incident took place while he was wearing clothes and his duty time was over. The employer examined one Dutta, the other employee and said Dutta stated in his cross-examination that Tukaram was allotted heavy duty work and there was heavy workload. The employer also examined one "A" Grade Fitter by name Uttam, who deposed in cross that at the time of death, Tukaram was lifting pump engine. None of these persons were cross examined by the Insurance Company. The Commissioner thereafter considered the evidence and noted that Tukaram suffered death because of heavy workload and it found that employer as also Insurance Company was jointly and severally liable.
3. I have heard Shri Thakur, learned Counsel for the appellant-Insurance Company and Shri Manoj Rajan Pillai, learned Counsel for respondents No. 1 to 4.
4. Shri Thakur, learned Counsel for the appellant has, after narrating the facts mentioned above, contended that there was no accident on 2-5-1987 in the morning as contemplated by provisions of Workmen's Compensation Act. He states that mere death by itself is not an accident and respondents No. 1 to 4 have failed either to plead or to establish any such accident. He further argues that the accident has to be on account of some injury suffered in discharge of duties. He argues that there is no pleading on record even in this respect. He takes the Court through the evidence as adduced and argues that as jurisdictional facts itself were neither pleaded nor proved, it was not necessary for the insurance company to cross examine any of the witnesses. On the contrary, in view of certain portion which has come on record in cross of the witness, he contends that collusion between employer and dependants of deceased is apparent. He further states that the Medical Officer with respondent No. 5-employer has issued certificate on 20-1-1988 certifying that deceased was not suffering from any problem of Blood Pressure or any other ailment. He further states that in view of this material, it is clear that the Commissioner has not recorded any finding about the jurisdictional facts. In support of his contention, he relies upon the judgment of the Hon'ble Apex Court in the case of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali reported at .
5. In the alternative, he states that monthly salary of deceased was only Rs. 601/- and for that purpose he invites attention to copy of claim lodged by the employer with the Insurance Company. He argues that the Commissioner has erroneously accepted salary to be Rs. 1,100/- per month. Lastly, he states that the Commissioner has proceeded under the impression that date of birth was 9-7-1957 and hence he was about 31 years of age at the time of accident and hence the Commissioner has applied factor 205.95 while calculating the compensation. He states that the employer himself has produced on record a School Leaving Certificate which demonstrates that date of birth of deceased is 12-1-1949 and hence the relevant factor applicable to his case was 192.14.
6. Shri Manoj Rajan, learned Counsel for the respondents states that the evidence on record clearly demonstrates that the deceased was on his duty at the time of his death and he further states that accident has not taken place when the deceased was changing his clothes. He invites attention to the evidence on record for that purpose. He further argues that the appellant-Insurance Company had opportunity to cross-examine claimant No. 2 and other witnesses but Insurance Company has not cross-examined anybody. He further argues that in such circumstances, finding of fact reached by the Commissioner cannot be displaced by this Court. He argues that the Commissioner has recorded a finding about existence of even jurisdictional fact and the requirements laid down by the Hon'ble Apex Court in its judgment in the case of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali (supra) are satisfied in the facts of present case. He further states that widow of deceased clearly deposed about his date of birth and she was not cross-examined and therefore, the Commissioner has correctly accepted date 9-7-1957 as correct date of birth. He, therefore, argues that the factor used is also proper. He points out that the claim form on which appellant is placing reliance has not been proved before the lower Court and as such cannot be looked into and points out that salary of deceased has been proved to be Rs. 1,100/- per month and that has been rightly accepted by the Commissioner.
7. It is clear that the appeal under Section 30 of Workmen's Compensation Act can be accepted only when substantial question of law is involved in the matter. Shri Thakur, learned Counsel for the appellant has contended that the pleading of evidence about jurisdictional fact is itself missing in this case. The perusal of judgment of the Hon'ble Apex Court in the case of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali (supra) particularly para 19 onwards, on which he has placed reliance, show that there has to be evidence that employment contributed to the death of deceased and only because death has taken place during the course of employment, it cannot be presumed that there was accident. The perusal of said judgment particularly para 26 reveals that fact that there was stress and strain arising during the course of employment, nature of employment and aggravation of injury due to stress and strain are required to be established to prove that accident has taken place. The injury must result from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it would be reasonable to believe the workman would not otherwise have suffered. In para 36, the Hon'ble Apex Court has held that only because the cause of death was heart attack, it cannot be a ground to arrive at a conclusion that an accident had occurred resulting in injury.
8. All these observations are to be understood in the background of the fact that employee before the Hon'ble Apex Court was a Helper and per se his duties were found to be not such as to cause stress and strain. In para 37, the Hon'ble Apex Court has further observed that if additional duties were required to be performed by him, the same was required to be clearly stated. In para 38, the Hon'ble Apex Court has observed that unless evidence was brought on record to elaborate that the death by way of a cardiac arrest has occurred because of stress and strain, the Commissioner would not have jurisdiction to grant damage. In present facts, the emphasis by present appellant on a statement in cross-examination of widow of deceased that at the time of incident, the deceased was wearing clothes and his duty time was over, cannot be said to be justified. The employer has examined two persons as witnesses and its witness Dutta (Exh. 25) has stated that deceased Tukaram was allotted heavy workload pertaining to pump set and at the time of his death, crushing season was in full swing. He also deposed that pump duty was very essential process and without running of the pump, sugar making process cannot be undertaken. He also stated that there was heavy load on the pump set. The other witness Uttam, who was "A" Grade fitter and was in same shift with the deceased stated that Tukaram died at 3.45 AM while working in the pump engine. He has deposed that at that time, he was lifting pump engine and in that effort, he collapsed and died on the spot. The widow of the deceased was not on the spot and in view of this evidence, her statement that accident occurred when the deceased was wearing clothes and his duty was over, cannot be given much importance. In any case, this evidence has been appreciated by the Commissioner and he has arrived at a finding in favour of the claimants. The finding cannot be labeled as perverse and considering the scope of jurisdiction available to this Court, it is not possible to undertake scrutiny in more details in this respect.
9. After appreciating this evidence, the Commissioner has found that Tukaram was allotted heavy duty work pertaining to pump set and at the time of his death, crushing season of sugarcane was in full swing. The Commissioner has thereafter found that therefore there was heavy load of work on pump set. It is, therefore, apparent that the Commissioner has found that because of heavy workload, there was stress and strain and hence Tukaram met with death while lifting the pump engine. Though the words stress and strain are not used in the judgment, the discussion in para 6 leaves no manner of doubt that the Commissioner found that the accident arose out of and in the course of employment. Lifting pump engine as deposed by Uttam at Exh. 32 was pan of duty of deceased and it appears that as season was in full swing, there was heavy workload. Not only this, the essential nature of work of deceased has also come on record. I, therefore, find that the ingredients mentioned by the Hon'ble Apex Court in its judgment Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali (supra) are available in the facts of present case and it cannot be said that the Commissioner under Workmen's Compensation Act has exercised jurisdiction not available to him in the matter.
10. The deposition of widow of deceased also demonstrates that her husband was having sound health and he had no problem of heart attack earlier. The post-mortem report shows that probable cause of death was due to stoppage of heart action i.e. cardiac arrest. Shri Thakur, learned Counsel has also tried to invite attention to Medical Certificate dated 20-1-1988 issued by Medical Officer of respondent No. 5-Sugar factory. Said Medical Certificate is available on record but has not been exhibited. The said certificate also shows that deceased had no heart problem or any complaint of Blood Pressure in last three years. It is, therefore, clear that a hale and healthy man has expired suddenly while lifting a pump engine i.e. while discharging his duties at odd hours in the night. It is, therefore, clear that he received injury to his heart on account of nature of his work and duties and therefore the argument that there was no accident or there was no connection of employment with such accident or death is misconceived.
11. Shri Thakur, learned Counsel for the appellant has pointed out that salary of deceased has communicated by the employer in insurance claim was only Rs. 601/- on an average per month. However, said insurance claim form has not been exhibited and therefore the claimants before the Commissioner did not get opportunity to meet that statement. The evidence on record as mentioned above reveals that widow of deceased stated that his salary was Rs. 1,100.57 ps. The other witness Dutta (Exh. 25) has proved pay certificate of Tukaram and he also stated that his salary was Rs. 1,100.57 ps. per month. These witnesses have not been cross-examined by Insurance Company at all. In view of this evidence, it cannot be said that the Commissioner committed any error in accepting salary of deceased to be Rs. 1,100/- per month.
12. The witness Dutta deposed that date of birth of Tukaram was 12-1-1949 and he also proved that certificate Exh. 26 in support of his stand. The date of birth of Tukaram has been mentioned as 9-7-1957 in para 1 of their application by the claimants. The Commissioner has not recorded any express finding about the date of birth but from para 1 of his judgment in which some portion of claimants statement has been used to narrate facts, the Commissioner has mentioned date of birth as 9-7-1957. From calculations undertaken by the Commissioner in para 8 of his judgment, it appears that the Commissioner has stated the deceased to be 31 years old at the time of his death.
13. Therefore, the Commissioner applied factor 205.95. However, in view of the evidence tendered by the employer and certificate proved by the employer, it is apparent that the correct date of birth of deceased was 12-1-1949 and hence at the time of his death he was about 37 years old. The relevant factor, therefore, to be applied appears to be 192.14. Shri Thakur, learned Counsel for the appellant as also Shri Manoj Raj an Pillai, learned Counsel for the respondents, have by using factor 192.14 and salary of deceased to be Rs. 1,100/- per month, as per procedure prescribed thereafter in Section 4 of Workmen's Compensation Act, together stated that right amount of compensation works out to Rs. 76,856/- only. It is, therefore, apparent that the Commissioner has committed error in treating 9-7-1957 as date of birth of deceased though there was no evidence in support of that date and though evidence on record pointed out that correct date of birth was 12-1-1949. In view of this finding, the quantum worked out by the Commissioner while deciding issue No. 2 is accordingly corrected and it is held that respondents No. I to 4 are entitled to Rs. 76,856/-.
14. In these circumstances, appeal filed by the Insurance Company is partly allowed. Respondents No. 1 to 4 are held entitled to amount of Rs. 76,856/- with 6%interest per annum on it from 2-5-1987 till payment in full. The amount in excess deposited with the Commissioner, therefore, can be taken back by the person who has deposited it, in accordance with law. Rule accordingly. However, in the circumstances of the case, there shall be no order as to costs.