Karnataka High Court
M/S Oriental Insurance Company Limited vs Sri Murthaiah on 27 September, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO. 10991 OF 2010 (WC)
BETWEEN:
M/S ORIENTAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE NO. 7,
UTTAMAR GANDHI SOLAI,
2ND FLOOR, ROSI TOWERS,
MANGAMBAKKAM, CHENNAI,
NOW REP BY ITS REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD CROSS,
BANGALORE-25
REP BY ITS AUTHORIZED SIGNATORY.
... APPELLANT
(BY SRI. A M VENKATESH, ADVOCATE)
AND:
1. SRI MURTHAIAH
S/O BASAVA NAIK
AGED ABOUT 48 YEARS
2. SMT LAKSMI DEVAMMA
W/O MURTHAIAH
AGED ABOUT 42 YEARS
BOTH ARE R/O BULLENAHALLI,
HONNEBAGILU
CHIKKANAYAKANAHALLI,
TUMKUR DIST
3. KHAJA MANASOOR
S/O ABDU KHADER SAAB
CHIKKANAYAKANAHALLI TOWN,
TUMKUR DIST
... RESPONDENTS
(BY SRI. MAHESH SHETTY, ADVOCATE FOR R1 & R2;
VIDE ORDER DATED 17/08/2015
NOTICE TO R3 HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED
21.09.2010 PASSED IN WCA/CR-57/FC/2007 ON THE FILE OF
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THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, UDUPI DISTRICT, UDUPI, AWARDING A
COMPENSATION OF Rs.4,52,760/- WITH INTEREST @ 12%
FROM 20.11.2007 TILL DEPOSIT IN COURT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
This appeal by the insurer challenges the judgment and order dated 21.09.2010 made by the Commissioner for Workmen's Compensation, Udupi, allowing WCA/CR- 57/FC/2007 whereby a compensation of Rs.4,52,760/- has been awarded with a statutory interest of 12% per annum from one month after the accident.
2. The brief facts of the case stated are:
a) One Mr. Satish who was working as a cleaner-cum-
loader in the lorry bearing Registration No. KA-44-0400; on 20.10.2007, after the lorry was loaded with the Manganese Ore, he went to have bath in a nearby reservoir, wherein he died of drowning. The LRs of the deceased had filed the claim petition that was stoutly opposed by the insurer.
b) To prove the claim, the first claimant being the father of the deceased was examined as PW1 and in his evidence, seven documents came to be marked as per Exhibits P1 to P7 which interalia comprised of the FIR, Post 3 Mortem Report and Salary Certificate of the deceased. One Mr. Abdul Nabi Sa, who was the driver of the said lorry was examined as PW2. From the opposite side, none was examined although the Insurance Policy was got marked as per Exhibit R1.
c) The Commissioner for Workmen's Compensation, after adverting to the pleadings of the parties and after appreciating the evidentiary material on record, has entered the impugned and award which are put in challenge by the insurer by framing the following substantial questions of law at Paragraph No.8 of the appeal memo:
"a) Whether the Commissioner was justified in holding that deceased Sathish suffered in the course of and arising out of employment involving lorry bearing No.KA-44/0400?
b) Whether the Commissioner was justified in holding that the death of cleaner by drowning is in the course of and arising out of employment?
c) Whether the Commissioner was justified in fastening liability on the appellant/insurer being insurer of lorry and the said vehicle is no way responsible for the death of Sathish?
d) Whether the Commissioner was justified in awarding compensation of Rs.4,52,760/- with 12% interest by fixing Rs.4,000/- as income of deceased without any proof?4
e) Whether the Commissioner was justified in holding claimants/Respondent Nos.1 and 2 are also entitled to interest @ 12% from one month after the accident?"
3. The learned counsel for the insurer submits that no liability could have been fastened on the insurer inasmuch as the death in question did not occur due to an accident arising out of and in the course of employment as required under the provisions of the Workmen's Compensation Act, 1923 as it then was. He further submits that even if it is assumed to be an accident, the insurer cannot be held liable unless the said accident did not happen when the vehicle in question was put to use. On the basis of these submissions he presses into service the substantial questions of law at (a) to (c) above. In support of his submission, he banks upon the judgment of the Apex Court in the case of Mallikarjuna G Hiremath v. Branch Manager, Oriental Insurance Co., Ltd., and another reported in ACJ 2009 (Vol.II) 721.
4. The learned counsel for the claimants per contra contends that the survey of law relating to employer's liability for the injury or death suffered by the persons "out of and in the course of employment" has been evolved 5 steadily, precedent by precedent; the very concept of "accident occurring out of and in the course of employment"
has been enormously broadened and that some amount of causal connection between the accident and the employment levies the liability on the employer, even when a rough common sense tells otherwise. Therefore, he seeks dismissal of the appeal relying upon the judgment of the Apex Court in the case of Daya Kishan Joshi and another v.
Dynemech Systems Pvt. Ltd., AIR 2017 SC 4134 and the judgment of this Court in the case of New India Assurance Co. Ltd. v. Maruthi and another 2018 ACJ 268.
5. I have heard the learned counsel for the appellant-insurer and the learned counsel for the claimants. I have read the appeal papers and perused the papers from the original LCR.
6. The contention of the insurer that there is no causal connection between the death of the cleaner-cum- loader and the user of the vehicle in question appears to be too farfetched inasmuch as a) the deceased was the cleaner- cum-loader of the lorry b) the Manganese Ore was being loaded to the lorry; c) after the loading was done, the cleaner-cum-loader who was presumably dusted and dirted, 6 went to the nearby reservoir for taking bath and accidentally, he drowned.
7. Ordinarily, after loading is done, the cleaner- cum-loader and the loaders go for having a wash/bath. That being so, it cannot be said that there is no causal relationship between them and accidentally, he drowned. Ordinarily, after loading is done, the cleaner-cum-loader and the loaders go for washing. The wash or bath in such circumstances cannot be viewed as an act not connected with their job since it is very incidental. That being so, it cannot be said that there is no causal relationship between the employment and the accident.
8. By relying upon the case of Mallikarjuna G Hiremath supra, the learned panel counsel for the insurer contends that in almost an identical fact situation, the Apex Court has held that there was no causal connection between the drowning of the driver of the truck and his employment. The sticking feature of the case in the appeal at hands is that the lorry was being loaded with Manganese Ore and the cleaner-cum-loader after the loading was over, had been to the reservoir for a wash. This feature makes all the difference to the case.
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9. The learned counsel for the claimants is justified in placing reliance on the judgment of the Apex Court in the case of Daya Kishan Joshi. Paragraph Nos. 6 and 7 of the said judgment which read as under are very instructive and telling:
"6. The words 'arising out of' and 'in the course of employment' are in fact two different phrases and have been understood as such. If the accident had occurred on account of a risk which is an incident of employment, the claim shall succeed unless, of course, the workman had exposed himself to an added peril by his own imprudent act. The phrase 'in the course of employment' suggests that the injury must be caused during the currency of employment, whereas the expression 'out of employment' conveys the idea that there must be a causal connection between the employment and the injury caused to the workman as a result of the accident.
Prima facie, while deciding the issue on had, there is no material on record to show that the deceased workman had exposed himself to added peril by his own imprudent act.
7. When a workman is on the public road or public place or on public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. In other words, there must be a causal relationship between the accident and the employment. The expression 'out of employment' is not confined to the mere nature of employment: the expression applies to employment as such, to its nature, its conditions, its obligations and its incidents. The words "arising out of employment"
are understood to mean that during the course of employment, the injury has resulted from some risk incidental to the duties. Unless engaged in the duty owed to the employer, it is reasonable to 8 believe that the workman would not otherwise have suffered.
There cannot be any dispute that the question as to when an employment begins and when it ceases, depends upon the facts of each case. There is a notional extension at both entry and exit by time and space. There may be some reasonable extension in both time and space and a workman may be regarded as in the course of his employment even though he has not reached or has left employer's premises. In India, the courts have recognized the principle of notional extension of time and space for over 60-70 years while determining whether the injury has been caused out of or in the course of the employment of the workman. The Courts have held consistently that the employment does not necessarily end, when the tool down signal is given and when the workman actually leaves his place of work."
10. In the above circumstances, the substantial questions of law at (a), (b) and (c) are answered against the insurer and in favour of the claimants. Other questions at
(d) and (e) mentioned above, having not been urged, the appeal is dismissed.
The Registry is directed to transmit the amount in deposit and the LCR to the jurisdictional MACT, forthwith to facilitate the disbursement of compensation to the claimants immediately.
Sd/-
JUDGE Bsv