Karnataka High Court
National Insurance Co Ltd vs Smt Renukamma on 17 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2338, 2019 (1) AKR 529, (2019) 161 FACLR 57, (2019) 163 FACLR 24, (2019) 1 CURLR 461, (2019) 1 KANT LJ 458, (2019) 1 KCCR 911, (2019) 3 LAB LN 478, 2019 AAC 905 (KAR)
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 17TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.No.6580/2010(WC)
BETWEEN:
NATIONAL INSURANCE CO., LTD.,
CHITRADURGA BRANCH,
THROUGH ITS REGIONAL OFFICE
NO.144, SUBHARAM COMPLEX, M.G.ROAD,
BANGALORE-560 001, REP. BY ITS
ASSISTANT MANAGER
MR.M.KHAJA PASHA.
... APPELLANT
(BY SRI B C SEETHARAMA RAO, ADV.)
AND:
1. SMT RENUKAMMA
AGED ABOUT 40 YEARS
S/O LATE A R ANJANKUMAR
R/AT BANASHANKARI STREET
HOSADURGA TOWN CHITRADURGA DISTRICT.
2. KUM A R RAKSHITHA
SINCE DECEASED, IST RESPONDENT MOTHER IS
TREATED AS LR BY COURT ORDER DATED
03.12.2018.
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3. KUM. A R DEEKSHA
D/O LATE A R ANJANKUMAR
MINOR REP. BY THEIR MOTHER, THE
FIRST RESPONDENT RENUKAMMA
R/AT BANASHANKARI STREET
HOSADURAGA TOWN, CHITRADURGA DISTRICT.
4. SRI K MUZEEB KHAN
MAJOR
S/O MR.BASHA SAB
R/AT BEHIND, GOVERNMENT HIGH
PRIMARY SCHOOL, KAYIPET, HOSADURGA TOWN.
(OWNER OF LORRY NO.KA.16/B-7862).
... RESPONDENTS
(BY SRI R SHASHIDHARA, ADV. FOR C/R1
SRI GOVINDAPPA J, ADV. FOR R4
R3 IS MINOR REPRESENTED BY R1
R2 IS DEAD)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C.
ACT AGAINST THE JUDGMENT DATED:13.04.2010
PASSED IN CWC/WCA/F/CR-8/2007 ON THE FILE OF THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, CHITRADURGA DISTRICT,
CHITRADURGA, AWARDING A COMPENSATION OF
Rs.3,84,280/- WITH INTEREST @ 12% P.A. FROM AFTER 30
DAYS OF ACCIDENT TILL THE DATE OF DEPOSIT IN THE
COURT.
THIS APPEAL COMING ON FOR HEARING AND
HAVING BEEN RESERVED FOR JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This miscellaneous first appeal is filed by the Insurance Company challenging the judgment and award passed in CWC/WCA/F/CR-8/2007 dated 13.04.2010 on the file of the Labour Officer and Commissioner for Workmen Compensation, Chitradurga District, Chitradurga, on the ground that the Commissioner has committed an error in granting compensation, though it is a case of Accute Myo Cardial Infarction (heart attack).
2. The claimants have filed a claim petition before the Commissioner for the death of A.R.Anjan Kumar @ A.R.Anjaneya who died on account of heart attack by contending that he sustained heart attack during the course of his employment. The Commissioner recording the evidence, allowed the claim petition granting compensation of Rs.3,84,280/- with interest at 12% p.a. after expiry of 30 days from the date of the incident. 4
3. The appellant-Insurance Company in the present appeal has contended that the Commissioner has acted perversely in holding that the death of Anjan Kumar was due to the employment injury suffered while working as a driver under 4th respondent. The deceased died due to natural cause i.e., Acute Myo Cardial Infarction (heart attack) as could be seen from the records produced by the claimants. Under these circumstances, the Commissioner had no jurisdiction to entertain the claim. The other contention is that the Commissioner has failed to note that the claimants have not established that the death occurred due to employment injury and the Commissioner has acted contrary to law in making the appellant liable to pay the compensation. The other contention is that the Commissioner ought to have rejected the claim against the insurer of the motor vehicle on the sole ground that the liability of insurer would be circumscribed by the provisions of Motor Vehicles Act. Only if there is an 5 accident as contemplated under Section 140 of the MV Act, the insurer of that vehicle will become liable to pay compensation to a workman as provided under Section 143 of the MV Act. The motor policy issued by an insurer would not provide for indemnifying the employer of a workman under all circumstances. Therefore, the liability mulcted against the appellant to indemnify the insured requires to be set aside.
4. The learned counsel for the appellant-Insurance Company in support of his contention has relied upon the decision of this Court in the case of Branch Manager, United India Insurance Company Limited, Hunsur Vs. Srinivasa and Others reported in 2006 SCC Online Kar 630 and brought to my notice paragraph No.6 of the judgment. The counsel has also relied upon the judgment of the Division Bench of this Court in the case of Oriental Insurance Co., Ltd., Vs. Shafi reported in 2010 SCC Online Kar 515 and 6 brought to my notice paragraph Nos.2 and 10 of the judgment. The counsel also produced the order passed in Civil Appeal No.7428/2010 arising out of SLP(C) No.8638/2006 and brought to my notice paragraph No.10 of the judgment.
5. Per contra, the learned counsel for the respondents have contended that the Commissioner by considering the materials on record has rightly come to the conclusion that the death was during the course of employment. In support of their contention, they relied upon the decision of this Court in the case of M/s National Insurance Co.,Ltd., Rep. by its Administrative Officer Vs. Zaheeda Banu and Others reported in ILR 2010 KAR 4321 and brought to my notice paragraph Nos.9 and 11 of the judgment.
6. The learned counsel for the respondents has relied upon the decision of the Supreme Court in the 7 case of Param Pal Singh through Father Vs. National Insurance Co., Ltd., and Another reported in (2013) 3 SCC 409 and brought to my notice paragraph Nos.24 and 29 of the judgment.
7. The counsel also relied upon the unreported Judgment of this Court in MFA.No.10991/2010 disposed of on 27.09.2018 and brought to my notice paragraph No.9 of the judgment.
8. By relying upon the above said judgments, he contend that the order of the Commissioner is sustainable and there is ample material to show that the death was occurred during the course of employment. Hence, they prayed to dismiss the present appeal.
9. After having heard the learned counsel for the appellant-Insurance Company, learned counsel for the 8 respondents and on perusing the judgment and award passed by the Commissioner, the only point that arises for consideration before this Court is:
"Whether the Commissioner has committed an error in fastening the liability on the Insurance Company that the death is during the course of employment in spite of the driver suffered heart attack?"
10. Now, let me appreciate the factual matrix of the case. It is the claim of the claimants that the deceased A.R.Anjan Kumar @ A.R.Anjaneya was working as a driver and he was on duty at the time when he suffered heart attack and the Commissioner considering the material on record has come to the conclusion that the deceased had suffered heart attack when he was on employment.
11. On the other hand, it is the main contention of the insurer that the Commissioner has failed to take 9 note that the death was natural death, since he suffered Accute Myo Cardial Infarction (heart attack) and the very approach of the Commissioner fastening liability on the Insurance Company is erroneous.
12. On perusal of the judgment and award of the Commissioner, while considering issues Nos.1 and 2, the Commissioner has comes to the conclusion that the said A.R.Anjan Kumar @ A.R.Anjaneya died on account of stress, since he was driving the vehicle continuously. In paragraph No.10 of the judgment, the Commissioner has observed that after taking rest, he was climbing the lorry, at that time, he suffered heart attack and died. On perusal of Ex.P.1 the police immediately after the incident registered a case and as against column No.7, it is mentioned that on 05.02.2006 in the morning the deceased was working as a driver of the lorry bearing No.KA-16-13-7862 which was loaded with iron ore at Nuggenalli and was proceeding towards Mangalore and 10 when the tyre of the lorry got punctured near Byrapura, stopped the lorry there itself and had food and while taking rest beneath the tree, at that time, he suffered heart attack and immediately, he was taken to Alur Hospital and the doctor declared that he died. Ex.P.1 came into existence immediately after the accident and hence, it is clear that when he was taking the rest beneath the tree, he has suffered heart attack and this fact has not been disputed and the learned counsel for the appellant has brought to my notice the document at Ex.P.1 and the contents of the said document. No doubt, it is rightly pointed out by the appellant's counsel that Ex.P.3-Post Mortem Report clearly discloses that the cause of death is due to Acute Myo Cardial Infarction (heart attack) and the cause of death is also not in dispute that he has suffered heart attack.
13. The fact that the deceased was proceeding as a driver of the lorry, in which, iron ore was loaded at 11 Nuggenalli and was proceeding on the way to Mangalore and taking the rest after having food is also not in dispute. The only question before this Court is "Whether the conclusion of the Commissioner that the deceased died due to heart attack during the course of employment and out of employment is correct or not?"
14. The fact that the deceased was on duty is also not in dispute. In the judgment relied upon by the appellant's counsel in the case of Srinivasa as referred supra, this Court held that the deceased was a driver by occupation and he went home as he had a pain in heart and thereafter, he was taken to the hospital where he died out of heart attack. This Court while considering the case in paragraph Nos.6 and 7 had discussed that no liability can be fastened on the Insurance Company on the ground that there must be some casual connection between the death of the workman and his employment. In the instant case, there is connection 12 with regard to the fact that he has suffered hart attack when he was on duty working as a driver and the said judgment is not applicable to the case on hand. In the other decision relied upon by the appellant's counsel in the case of Shafi referred supra, this Court held that admittedly the claimant climbed a coconut tree in order to pluck the ripe coconuts. While doing so, he fell from the tree, which resulted in multiple fractures and the contention of the claimant in that case is that he was discharging his duty as a coolie under Thimmanna, respondent No.2 and on that day, along with another worker, he proceeded to the garden land of respondent No.2 in the tractor-trailer belonging to respondent No.2 and he fell down from the tree and the facts and circumstances of the case is different considering the factual aspects of the present case, which relied upon by the Insurance Company.
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15. The appellant's counsel has also relied upon the decision of the Hon'ble Apex Court in the case of Mamtaj Bi Bapusab Nadaf and Others Vs. United India Insurance Co., Ltd., in Civil Appeal No.7428/2010 arising out of SLP(C) No.8638/2006. On perusal of the factual aspects of the said case, the deceased was engaged in unloading Maize (food grain) from a tractor-trailer. When Maize was being unloaded from the tractor to an underground storage bin ('Hagevu'), both the labourers climbed the grocery pit in order to clean the same for storing Maize and while cleaning, they fell into the grocery pit. They shouted from inside that they were suffocating, a rope was released to them but they did not catch it and they died due to asphyxia. In the said judgment, Apex Court has cited the proviso of Section 147(1) of the Motor Vehicles Act, 1988, by holding that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have 14 arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place and come to the conclusion that the Insurance Company cannot be held liable for the death of the workman. The facts and circumstances of the case on hand is not aptly applicable to the facts and circumstances of the case which has been relied upon by the appellant's counsel.
16. On the other hand, in Zaheeda Banu's case, this Court held that the driving job is undoubtedly a tension filled job, particularly, to cope up with present day traffic and other things. There cannot be any presumption that even when a person dies while actually working in the job that his death may not be due to the employment, but may be due to something else. Such presumption is nothing short of a perversity. 15 If the Insurance Company should have taken up a defence that death was not either in the course of employment or not due to the pressures of the work which the employee was performing, the burden is heavily upon the insurance company who after giving a policy to cover the risk of the employer tries to find out untenable, petty and cantankerous reasons to wriggle out of their liability which is not befitting its status as an insurance company which is Nationalized and having regard to the object of the Workmen's Compensation Act, which is a piece of social welfare legislation, such untenable stands only expose the Public Sector undertakings in poor light, but more importantly results in undue harassment to the poor claimants and works at cross purposes to the object of the Act itself. It is further held that when there is no dispute that the person who died was actually sitting in his workplace i.e., cabin while he was at the steering, there can never be any presumption that death was due to some other 16 reason. In the above said judgment, this Court has discussed in detail with regard to the nature of job of the driver, which is aptly applicable to the case on hand.
17. The learned counsel also relied upon the decision of the Hon'ble Supreme Court in Param Pal Singh's case, the head note of the said case reads as follows:
"Applicability - Expression personal injury caused _ by accident arising out of and in the course of his employment"- Scope of - Requirement of causal connection between the death of workman and his employment - Fulfilment of - J employed as a truck driver by R - He while driving truck in connection with trade and business of R, felt giddy - So he parked the truck on the side of the road - But immediately thereafter he died - Held, J would have definitely undergone grave strain and stress due to long distance driving (of about 1152 km) which materially contributed to and accelerated his unexpected death - Thus, there existed a causal connection between the death of J and his employment - Said untoward mishap could be described as an accident arising out of and in the course of 17 employment of J with R - Hence, order of Commissioner of Workmen's Compensation holding so and awarding compensation to adopted son of deceased, held, was proper - Conclusion to the contrary arrived at by High Court, set aside".
The above said case is also aptly applicable to the case on hand in connection with the accident, which has occurred during the course of employment, since he was on duty and he was taking rest beneath the tree and during the course of employment, he suffered heart attack and there is a causal connection between the death of the deceased and his employment, since he was on duty of driving the vehicle ,which loaded with iron ore and he was on the way to Mangalore from Nuggenahalli. This Court also in MFA.No.10991/2010, regarding employment is concerned, in paragraph No.9 of the judgment, has quoted the relevant paragraph Nos.6 and 7 of the judgment of Daya Kishan Joshi and another Vs. Dynemech Systems Pvt. Ltd., 18 reported in AIR 2017 SC 4134, which reads as follows:
"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.19
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 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 20 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."
18. While considering the principles laid down in the above said judgment and the factual matrix of the present case, undoubtedly, there is no dispute that the deceased was on duty and he was taking the load of iron ore from Nuggenahalli to Mangalore and he was in 21 continuation of his job and only he was taking rest beneath the tree and the very contention of the Insurance Company that he has suffered heart attack is also not in dispute. Ex.P.3-post mortem report also discloses that the death was due to heart attack. The Court has to examine the factual aspects that whether the deceased was on duty and during the course of employment, he suffered heart attack and it is rightly pointed out by the counsel for the claimants that the driving job is undoubtedly a tension filled job and the job was also not completed for the day and he was about to take the lorry to Mangalore, due to tyre puncture, he took food and while taking rest beneath the tree, he suffered heart attack when he was on employment. Hence, I am of the opinion that the very contention of the Insurance Company that it is natural death cannot be accepted and due to strain as the deceased was discharging his duty as a driver, he suffered heart attack that too during the course of 22 employment and on the way to Mangalore with load of iron ore and discharging the job of driver. Hence, the contention of the Insurance Company that it is natural death cannot be accepted. Hence, there is no ground to interfere with the order of the Commissioner. Therefore, I pass the following:
ORDER Appeal is dismissed.
The amount in deposit is ordered to be released to the claimants on proper identification.
Sd/-
JUDGE PB