Karnataka High Court
The Divisional Controller, Nekrtc vs Smt. Laxmi @ Laxmibai on 25 June, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25th DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
MISCELLANEOUS FIRST APPEAL No.200122/2018(WC)
BETWEEN:
The Divisional Controller,
NEKRTC, Kalaburagi Divn. No.2
Kalaburagi
Now through its Chief Law Officer,
NEKRTC Central Office, Sarige Sadhana,
Main Road, Kalaburagi
Through its Authorised Signatory,
.... APPELLANT
(BY SHRI SHARANBASAPPA M. PATIL ADVOCATE)
AND:
Smt. Laxmi @ Laxmibai
W/o Late Subhash,
Age: 51 years, Occ: Household,
R/o H.No.372 CIB Colony, near
ESI Hospital, Behind Central Bus
Stand, Kalaburagi 585 102.
... RESPONDENT
(BY SRI.BABU H.METAGUDDA ADVOCATE)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 30(1) OF EMPLOYEES
COMPENSATIOIN ACT PRAYING TO ALLOW THE MFA
AND CONSEQUENTLY BE PLEASED TO MODIFY THE
JUDGMENT AND AWARD DATED: 03-10-2017 PASSED
BY II ADDL. CIVIL JUDGE (SR.DN.) KALABURAGI &
COMMISSIONER FOR EMPLOYEES COMPENSATION
KALABURAGI IN ECA NO.58/2015 IN THE INTEREST
OF JUSTICE.
THIS APPEAL HAVING BEEN HEARD, RESERVED
FOR JUDGMENT AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS
COURT DELIVERED THE FOLLOWING;
JUDGMENT
This appeal by the Divisional Controller, NEKRTC is directed against the impugned Judgment passed by the II Addl. Civil Judge (Sr.Dn.) & Commissioner for Employees Compensation, Kalaburagi dated: 03-10- 2017 in ECA No.58/2015 whereby the Commissioner partly allowed the claim petition, thereby awarding 3 compensation in a sum of Rs.5,42,000/- with interest at the rate of 12% per annum.
2. The respondent herein is the wife of the deceased has filed a claim petition before the Commissioner inter-alia contending that, the deceased Subhash S/o Marutirao was working as driver of the Bus bearing No.KA-32-F-1792 (Nrapatunga Nagar Sarige) route No.203 Schedule No.53 along with conductor by name Smt.Ansuya on 02-10-2014 and when said bus reached Akkamahadevi colony at Kalaburagi City at about 10.00 a.m., suddenly Subhash informed the conductor that, he felt chest pain and unable to run the bus. Immediately the said Subhash was taken to Government General Hospital, Kalaburagi but the Medical Officer declared that, Subhash died due to heart attack. Subhash was getting salary of Rs.34,450/- and he died during the course of his 4 employment. Accordingly the petition is filed claiming compensation for the death of Subhash.
3. After the trial, the Commissioner for Employees Compensation took into the account the pleadings and evidence of the parties and also considering the order of the Ministry of Labour and employment dated: 31-05-2010 S.O. 1258(E) wages is to be considered as Rs.8,000/- per month. The age of the deceased as per the service register is taken as 55 years. Accordingly as per schedule IV of the Act, factor applicable is 135.56 and 50% of the salary will be Rs.4,000/-, hence the loss of income comes to Rs.5,42,200/- and the said compensation was awarded with interest at the rate of 12% per annum from one month after the date of incident till realization.
4. The appellant -corporation contention is that, there is no material to show that, the deceased died due to stress and strain. There is no nexus 5 between the death and employment. So the award of compensation under the Employees Compensation Act is to be set aside. The deceased died due to heart attack, same does not give rise to automatic compensation under the Workmen's Compensation Act.
5. Heard Sri. Sharanbasapa M.Patil learned counsel for appellant and Sr.Babu Metagudda learned counsel for respondent
6. Learned counsel for appellant submits the Commissioner has committed error in coming to the conclusion that the respondent is liable to pay the compensation as death of the driver is due to heart attack. It does not occur during the course of employment. It has no nexus with employment. In support of his arguments, he relied upon a decision of Hon'ble Apex Court reported in (2007) 11 Supreme Court Cases 668 in Appeal (Civil) 4778 of 2006 dated: 10-11-2006 in case of Shakuntala 6 Chandrakant Shreshti V/s Prabhakar Maruti Garvali & another wherein it is held as under:
It is well settled that when a workman is on a public road or on a public transport he is there as any other member of the public and not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment if he reaches the place of work or a point or an area which comes within the theory of national extension, outside of which the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the theory of national extension extends upto point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on the journey between these two points could not be said to have arisen out of and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were when they were crossing the creek between the points A and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen was unfortunate, but for that accident the appellant cannot be made liable" 7
5. Come within the Act the injury by accident must arise both out of and in the course of employment. The words in the course of the employment mean in the course of the work which the workman is employed to do and which is incidental to it. The words arising out of employment are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In other words there must be a casual relationship between the accident and the employment. The expression arising out of employment is again not confined to the mere nature of employment. The expression applies to the employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises out of employment. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed to himself to an added peril by his own imprudent act".
So, the learned counsel for appellant contended that the death of driver is due to heart attack. So in the absence of any evidence to show that the cause of death 8 has any nexus to the nature of the work the compensation cannot be granted.
7. On the other hand, learned counsel for respondent supports the impugned Judgment of Commissioner for Employees Compensation and contended that, the very nature of work of the driver that too driving the vehicle in a city at peak hours that too at 10.00 a.m., gives lot of stress and strain. It is evident because that while he was driving the vehicle he developed chest pain and suffered heart attack and it is only because of stress and strain by the nature of work of driving the bus there is all possibility of suffering heart attack that itself is sufficient to hold that, the deceased died due to stress and strain which resulted in heart attack. So, the order passed by the Commissioner for Workmen's Compensation is just and proper and prays to dismiss the appeal.
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8. On hearing the learned counsel for the parties, the substantial question of law that arises for consideration in this appeal is:
"Whether the order passed by the Commissioner holding that, death of an employee due to injury by the accident out of and in the course of employment is not in accordance with law with the Compensation Act, 1923? and the employee is not entitled for compensation?"
9. I have given my anxious consideration to the arguments of both the sides and perused the evidence, contention taken by both the sides.
10. The undisputed contentions are that, the relationship of employer and employee is not disputed. The death of the deceased as a driver while he was on duty is not disputed. The amount of salary of deceased per month taken by the Commissioner is also not disputed. The only contention urged by the appellant is that, death was not during the course of the 10 employment when the workman was engaged in his work.
11. From the decision of Hon'ble Apex Court reported in (2007) 11 Supreme Court Cases 668 in Appeal (Civil) 4778 of 2006 referred by learned appellant counsel, it is evident that the deceased in that case was working as cleaner of the vehicle, he was travelling in the said vehicle belonging to respondent No.1, he developed chest pain and admitted to the hospital and then he was declared as dead. The incident occurred when the deceased was discharging his duty. There was jurisdiction question involved. The Hon'ble Apex Court in the said decision at paragraphs Nos.39 & 40 has held as under: --
39. Section 30 of the said act postulates an appeal directly to High Court if a substantial question of law is involved in the appeal.
40. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of 11 law. From the order passed by the Commissioner, if appears, he has not arrived at a finding that the job involved any stress or strain. It was merely stated that he was working as a Khalasi in a truck, which was going to Tavarewadi village from Kolhapur to get the milk. The autopsy was conducted at Chandgad District Hospital. The driver Prashant Chandrakant Shreshti admittedly brought him to hospital. He was his brother. The post mortem examination commenced from 6.30 a.m., on 28-09-2002 and ended at 7.30 a.m., on the same day. From the post mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a casual connection between the incident and serious injury so as to fulfill the requirements of the terms "out of the employment". Indisputably, there has to be an proximate nexus between the cause of death and employment. A stray statement made by the Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination.
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12. Per contra, learned counsel for respondent/claimant in support of his argument relied upon three decisions of Karnataka High Court, two decisions of Division Bench and one of Single Bench. In the decision of Division Bench of Karnataka High Court reported in ILR 2003 KAR 4221 in case of (The Divisional Controller, NEKRTC, Bellary Vs Marembee and others) wherein it is held as under:
THE WORKMEN'S COMPENSATION ACT, 1923 -
(CENTRAL ACT 8 OF 1923) - 2(e) EMPLOYER - SECTION 3 - Employee's death occurring - Arising out and in the course of employment. Liability for compensation - The driver of a RTC bus died of Heart Attack on completion of the journey - declared dead on arrival at the hospital - Whether the death of the workman due to heart attack can be termed as a employment injury under Section 3 of Workman's compensation Act. Held - The death of the bus driver was attributable to the work in which he was engaged in. Admittedly, the deceased had died immediately upon arrival. There is sufficient evidence to infer, that the deceased died on account of heart attack. There being a pre-existing heart condition which was aggravated by strain of the work of the deceased, which resulted in his death. The fact that the deceased workman's unexplained or 13 apparently natural death had occurred during the course of employment, having established casual connection between the nature of the cause accelerating the death. Thus, the finding of fact arrived, by the Commissioner, that the death of the deceased workmen arose out of and in the course of employment is full justified.
13. In another decision of single Bench of this Court which is reported in 2013 Kant. M.A.C 128 dated:
01-04-2011 in case of United India Insurance Co.Ltd. Vs. Varija and others at para No.8 while referring to the Judgment of Hon'ble Supreme Court relied upon by the counsel for the appellant, in Appeal (Civil) No.4778 of 2006 in case of Shakuntala Chandrakant Shreshti Vs Prabhakar Maruti Garvali & Another reported 2007 ACJ 1 (SC) and another one decision in case of Malikarjun G. Hiremath Vs Branch Manager, Oriental Insurance Co.Ltd., 2009 ACJ 721 (SC) and considered what is the expression arising out of the course of employment under section 3(1 of the Workmen's Act Compensation earlier. (Now ECA Act). In that case also the deceased 14 was the driver of the lorry, the said lorry went over a ditch and hit to a road side tree resulting in the death of driver. The deceased was conscious and was in full control of vehicle and cardiac arrest must have happened due to shock of vehicle hitting tree. Injury resulting in death of driver taken place in course of his employment and directly attributed to his employment.
So, the Single Judge referring to the decisions of Hon'ble Apex referred supra, has held as under: -
""10. Incidently, the Judgments which are pronounced by counsel for appellant in a way assist the case of claimants- respondents for the reason that, here is a case where when accident took place deceased was in control of his vehicle. Nobody can deny the fact that, when a person is driving a vehicle, be it a truck or a bicycle, certain amount of stress or strain will always be there on him to observe the oncoming traffic, his path and other obstructions which he has to bear in mind while driving the vehicle. More particularly, in this case in a narrow road, i.e., Bircam;pady-Kudumboor road, which is a village road connecting two small Talukas, which 15 is about 30 ft. in width. In such a space the driver who is driving the vehicle should have more care and caution. More particularly, if there are obstructions on either side of the road. In the instant case, admittedly, there are obstructions on either side of the road. In the instant case, admittedly, there was ditch on the left side. When deceased was trying to give way to the oncoming vehicle, he took the vehicle to the left side, the vehicle had gone over the ditch and hit the tree. This is sufficient reason to accept that at the relevant time there was enough stress and strain, which has caused the accident and the said accident is the result for his death. Therefore, this court is of the opinion that, the aforesaid two judgments cited by the appellant would in fact support the case of the claimants. In the result, first substantial question of law is answered in the negative".
14. Further the learned counsel for the respondent has also relied upon the decision of Division Bench of this Court reported in 1993 (2) Karnataka Law Journal Page 406 (DB), in case of National Insurance Co. Ltd., Bangalore V/s Smt.Balawwa and others), there the 16 Court has considered Sec.3 & 4 of Workman's Compensation Act, 1923 : Death of an employee due to an injury by accident out of and in the course of his employment. The Division Bench has referred to various decisions of Apex Court and other High Courts of the country and it is held as under:
(A) WORKMEN'S COMPENSASTION ACT, 1923, SECTION 3 READ WITH SECTION 4 - Death of an employee due to an injury by accident out of and in the course of his employment - Whether an employee who suffers heart attack during the course of his employment is entitled for compensation?
HELD: It is no doubt true that a claim for compensation for the death of an employee could be made under Section 3 read with section 4 of the Workmen's Compensation Act only if the death of that employee had occurred due to an injury sustained by accident out of and in the course of his employment. By an injury sustained by accident out of and in the course of his employment. By a serious of judicial pronouncements it is now well settled that the word 'accident' should be taken to a mean a mishap or untoward event, not expected or designed; that if a person suffers heart attack and dies, it necessarily 17 means that, there has been an injury to the heart and that, event being a mishap not expected or designed, is an accident and that if a workman suffers heart attack out of an in the course of his employment, then the employer is liable to pay compensation under section 3 read with section 4 of the Workmen's Compensation Act.
15. The Division Bench of this court discussed about the connection between the death of an employee and the use of the vehicle. Therefore, here in this case as evident from the Judgment of the trial Court at paragraph No.13 that, the respondent/RW.1 himself has admitted that, the deceased was a driver and he died during the course of employment. He also admitted about the salary. The only objection taken before the court is that, the Corporation has already paid the benefits of compensation to the petitioner under his employment, so they are not liable to pay the compensation. On the other hand, they admitted in the written statement that, the deceased was worker under 18 the respondent and he died during the course of employment. Taking into consideration nature of the incident, it is evident that the deceased was driving the bus during that course of employment he developed chest pain and he could not run the bus, immediately he asked the conductor for water, then he was taken to hospital and on the way he died. The post mortem examination report of the deceased would disclose the cause of death of deceased also support the case. Therefore, the very nature of the duty and the time of the incident and the material placed before the Commissioner are considered in the light of the principles stated in the above referred decisions, in my considered view the contention of the appellant- corporation that, the death not occurred due to stress and strain and there is no nexus between the death and employment cannot be accepted. Admittedly the very nature of the work of the deceased i.e. driving heavy vehicle like bus involves stress and strain, that too it is 19 stated that, he was driving the vehicle in the city. Admittedly the incident has taken place in the busy area of Akkamahadevi Colony of Kalaburagi city which is District Head Quarters, so definitely it is a big city where the drivers have to face lot of stress and strain because of the movements of the vehicles and public and other persons moving in the road and driving the vehicles in the big cities like district places always cause stress and strain to the drivers, that cannot be determined or measured with any apparatus. Since the very nature of employment as driver of bus, which itself always carries stress and strain, one has to suffer the very nature of the duty as a driver which itself always carries stress and strain. So, in the light of the principles stated in the above decisions it is evident that, the Insurance Company is liable to pay compensation when the employee suffers heart attack during the course of his employment and it is evident 20 that death has nexus to the nature of employment and death occurred during the course of employment.
16. In view of the principles stated in the above referred decisions and also evidence led before the trial court, it is evident that, the death of the deceased has nexus with the nature of the employment and the appellant had failed to show that, the deceased was not entitled for compensation. The order passed by the learned Commissioner is reasoned and supported by evidence placed before it.
Therefore, I find no grounds to interfere in the impugned Judgment passed by the learned Commissioner, the appeal is liable to be dismissed. Accordingly the substantial question of law is answered in the Negative.
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In view of the aforesaid discussion, I pass the following:
ORDER The appeal is dismissed.
The amount in deposit if any, is directed to be transferred to the concerned Court for disbursement.
Sd/-
JUDGE MNS.