Karnataka High Court
The Divisional Manager vs Smt Jaitunabi on 28 June, 2013
Bench: N.K.Patil, B.Manohar
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD.
DATED THIS THE 28TH DAY OF JUNE, 2013
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE B.MANOHAR
M. F. A. NO.3131/2007 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.
KESWAPUR HUBBALLI, THROUGH
ITS BANGALORE REGIONAL OFFICE
LEO SHOPPING CENTER
RESIDENCY ROAD BANGALORE
REPRESENTED BY ITS
REGIONAL MANAGER. ... APPELLANT
(BY SRI.G.N.RAICHUR, ADV.)
AND:
1. SMT.JAITUNABI
W/O.MAHABOOB SAB CHAUS
AGED ABOUT 30 YEARS.
2. HEENA KAUSAR
D/O.MAHABOOBSAB CHAUS
AGED ABOUT 8 YEARS.
3. MEHATA BANU
D/O.MAHABOOBSAB CHAUS
AGED ABOUT 7 YEARS.
2
RESPONDENTS NO.2 AND 3 ARE MINORS
REPRESENTED BY THEIR MOTHER AND
NATURAL GUARDIAN THE RESPONDENT NO.1
ALL ARE R/O.KANAVALLI, HAVERI TALUK.
4. MOHAMMED RAFEEQ
S/O.ABDUL SATTAR MIRJANKAR
AGED ABOUT 43 YEARS
R/O.NOORANI GALLI MUNDAGOD.
.. RESPONDENTS
(BY SRI.N.P.VIVEK MEHTA, ADV FOR R1, R2 AND R3
ARE MINORS, R4 SERVED)
THIS MFA IS FILED UNDER SECTION 30(1) OF THE
WORKMEN'S COMPENSATION ACT, 1923 AGAINST THE
JUDGMENT DATED 20.12.2006 IN Case No.ALC
HU/HA/WCA/NFC/03/2006 PASSED BY THE ASSISTANT
LABOUR OFFICER AND THE WORKMEN'S COMPENSATION
COMMISSIONER, DHARWAD DIVISION, HUBBALLI.
THIS MFA HAVING BEEN HEARD AND RESERVED AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, B.MANOHAR J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant-Oriental Insurance Company has filed this appeal challenging the award dated 20-12-2006 made in ALC HU/HA/WCA-3/2006 passed by the Commissioner for Workmen Compensation, Dharwad.
2. The facts of the case are as following:
3
Respondent No.1 is the wife and respondent Nos. 2 and 3 are the children of deceased Mehaboobsab Chaus.
They filed a claim petition before the Commissioner for Workmen Compensation contending that the deceased was working as a driver in a Lorry bearing registration No.KA-25/A-1282 belonging to the 4th respondent. On 2-4-2002, as per the directions of the owner of the vehicle, the deceased had taken the lorry to Holeittagi to transport sand to Mundagod. He had parked the lorry for the purpose of loading the sand. After getting down from the lorry, he was standing near the office. At that time, all of a sudden, he got chest pain and collapsed due to heart attack. Immediately he was taken to the Government Hospital at Bellatti. The doctor after examining him declared dead due to heart attack. At the time of death, the deceased was aged about 32 years and getting salary of Rs.5,000/- p.m. and batta of Rs.125/- per day. The death of Mahaboobsab Chaus was during the course of and arising out of employment and he is the only bread 4 earner of the family and sought for compensation of Rs.6,50,000/-.
3. The Insurer filed objections to the claim petition and contended that the lorry has not met with an accident and death was not during the course of employment, hence the claimants are not entitled to claim compensation. Further, the deceased did not possess the valid and effective driving license. There is no relationship of employer and employee between the deceased and the 4th respondent and no document has been produced to that effect. He was getting salary of Rs.5,000/- p.m. and batta of Rs.125/- per day. Further, the deceased was suffering from asthma and bronchial asthma and died due to the said diseases. Hence, the claimants are not entitled for any compensation and sought for dismissal of the claim petition.
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4. In order to prove the case, the first claimant got examined herself and produced the documents including FIR, Complaint, Inquest report and Case Dairy.
5. The Commissioner for Workmen Compensation after considering the oral and documentary evidence held that the claimants are the legal representatives of the deceased and death has occurred during the course of employment and arising out of employment, hence, they are entitled for compensation. Accordingly by its award dated 13-6-2003 awarded compensation of Rs.2,03,850/- taking into consideration the salary drawn by the deceased after applying the relevant factor with interest at the rate of 12% p.a..
6. The Insurer being aggrieved by the award dated 13-6-2003 passed by the Commissioner for Workmen Compensation awarding compensation to the claimants filed MFA No.5606/2003 before this Court alleging that the death is not due to the accident. Hence, the Insurer is 6 not liable to compensate the claimants. This court by its order dated 28-3-2005 allowed the appeal and remanded the matter back to the Commissioner for Workmen Compensation for reconsideration with the following observations and with a direction to the Commissioner to give an opportunity to the parties to adduce additional evidence and pass in accordance with law.
"In the instant case, though there is something referred to in the post mortem report as to the cause of death, it is not clear as to whether the death would have occurred due to the impact or the nature of the work carried out namely, driving which had affected the biological functioning of the body contributing to the ailment and thereby causing death. The doctor who has conducted the post mortem or any other competent doctor would be in a position to explain which in turn would enable the court to form an opinion. In such circumstance, the conclusion of the Commissioner for Workmen Compensation that the death of the deceased was due to the impact and during the course of employment and the nature of work carried out by the deceased, may require further clarification. Therefore, the order of Commissioner has to be held as not supported by proper medical evidence. The matter has to be remanded back to the Commissioner for reconsideration and also to secure the opinion of the doctor by giving opportunity to cross-7
examine the doctor, if necessary and also to ascertain as to whether the employment is a contributory factor which accelerated the death of the deceased and the death was not only due to ailment but also coupled with employment."
7. On remand, the Commissioner for Workmen Compensation re-examined Dr.Girish Venkareddy Maraddi on 15-07-2006. He was cross-examined by the advocate appearing for the Insurer. The Doctor in his cross-examination deposed that Mahaboobsab Chaus died due to Myocardial infection and due to the coronary artery blockage and death is not due to asthma or bronchial asthma. He further deposed that due to the blockage of coronary artery there was enlargement of heart and that caused heart attack. The post mortem of the dead body has been made eight hours after the death. He died due to the heart attack and not due to heart failure.
8. On the basis of the evidence of the doctor, the Commissioner for Workmen Compensation after considering the arguments addressed by the parties and 8 considering the doctor's evidence held that death is due to the heart attack during the course and out of employment, hence, the claimants are entitled for compensation and passed the award on 20-12-2006 directing the appellant to pay a sum of Rs.2,03,850/- with interest Rs.1,16,195/- at the rate of 12% p.a.. in all a sum of Rs.3,20,045/-. Being aggrieved by the award passed by the Commissioner for Workmen Compensation, the appellant once again preferred this appeal.
9. Sri.G.N.Raichur, learned counsel appearing for the appellant contended that the death has not occurred during the course of employment or arising out of employment. After parking the lorry for the purpose of loading, he was standing by the side of the lorry, at that time he died due to the ailments he was suffering. The Insurance Company cannot compensate the claimants due to the death of the husband of the first respondent and father of respondents 2 and 3. It was natural death 9 and not due to the accident. Hence, the Insurer is not liable to pay any compensation the claimants. He also relied upon the judgment reported in (2010) 10 SCC 536 (MAMTAJ BI BAPUSAB NADAF AND OTHERS v/s UNITED INDIA INSURANCE COMPANY AND OTHERS); 1999(1) Kar.L.J 356 (SMT.ANANTHAMMA v/s THE MANAGING DIRECTOR, CO-OPERATIVE SPINNING MILLS LIMITED, RAICHUR) and 2006 III LLJ 324 (JYOTHI ADEMMA v/s PLAN ENGINEER, NELLORE) and contended that the death has occurred not due to any accident of the motor vehicle. An employer's liability to pay the compensation to the workman arise only if the personal injury is caused to workman by an accident arising out of and in the course of employment. In the instant case, after the deceased getting down from the lorry, he developed the chest pain and died due to the ailments he was suffering. There is no nexus between the death and employment and sought for setting aside the 10 award passed by the Commissioner for Workmen Compensation by allowing this appeal.
10. Sri.N.P.Vivek Mehta, learned counsel appearing for the respondents 1 to 8 argued in support of the judgment and award passed by the Commissioner for Workmen Compensation and contended that this court while remanding the matter found that there is no evidence with regard to the cause of death and direction was issued to the Commissioner to re-examine the doctor and to find out whether death is due to heart attack and specifically directed the Commissioner to secure the opinion of the doctor by giving opportunity to cross-examine the doctor, if any. After remand, the doctor who had conducted the post mortem was examined and he was cross-examined by the advocate for the Insurance Company. In his evidence, he has specifically said that death is due to the heart attack and there was myocardial infection. In view of that, there was blockage in the coronary artery due to which 11 there was enlargement of heart. He denied the suggestion made by the advocate appearing for the appellant that death is due to asthma and bronchial asthma. The death of the husband of the first claimant and father of the claimants 2 and 3 is due to the stress and strain in driving the vehicle and that caused heart attack. Hence, sought for dismissal of the appeal.
11. We have carefully considered the arguments addressed by the parties and perused the impugned judgment and award and other relevant records.
12. While admitting the appeal, this court had framed the following substantial question of law:
(i) Whether the respondents were able to establish that, death of Mahaboobsab was on account of stress and strain working as a driver during the course of employment or was unnatural death?12
13. The records clearly disclose that the deceased was working as a driver under the 4th respondent. He was transporting sand from Holeittige to Mundgod. On 2-4-2002, he has taken the lorry to Holeittige for loading the sand. After parking the lorry, he got down from the lorry, suddenly he developed chest pain and collapsed. He was taken to the Government Hospital at Bellatti, he was declared dead due to the heart attack. The doctor who has conducted the post mortem in his evidence has deposed that he died due to the Myocardial infection. There was a blockage of coronary artery and enlargement of heart. Death is due to heart attack and not due to bronchial asthma.
14. The evidence of the doctor clearly discloses that the death was during the course of employment and arising out of employment and the deceased died due to heart attack. At the young age of 35 years, the heart attack usually happens due to the stress and strain in the 13 profession. Admittedly, there was huge demand for the sand. For the purpose of loading the sand, he has taken the vehicle early in the morning. After driving the lorry, he got down, suddenly he developed chest pain and collapsed. No document has been produced before the Tribunal to show that the deceased was suffering from any ailment. The first respondent in her evidence has deposed that the deceased was hale and healthy prior to the death and he was not suffering from any diseases. The death had occurred during the course of employment. The judgments relied upon by the advocate for the appellant are not applicable to the facts of this case. In the MAMTAZ BI BAPUSAB NADAF's case, for the purpose of storing the grains, the deceased had climbed the grocery pit. While cleaning the same, he died due to suffocation. The Hon'ble Supreme Court clearly held that there has been no proximity or direct connection with the death of the workman in any manner. In ANANTHAMMA case, while the deceased was proceeding to his work place, he 14 developed heart pain and died near the factory premises. In those circumstances, this court had held that there is no nexus to the death with regard to employment. In JYOTHI ADEMMA case, the deceased was already suffering from chest pain and he was being treated for such diseases. In view of that, he was given the light work of switching off and on the machine in order to see that there is no stress and strain in his duties. The facts of the present case are entirely different. On the date of death of the deceased, he has taken the lorry from Mundagod to Holeittige for the purpose of loading the sand. After getting down from the lorry, due to the stress and strain in driving the heavy vehicle, he has sustained heart attack and died. At no stretch of imagination, the death of the deceased can be treated as natural death. Hence, we hold that the death of Mahaboobsab was on account of stress and strain working as a driver during the course of employment. Hence, the substantial question of law is answered in the affirmative. Hence, the appeal filed by the 15 appellant is liable to be dismissed. The respondents are entitled for interest at the rate of 12% p.a. from 20-12-2006 till the date of payment.
15. The husband of the first respondent and father of respondents 2 and 3 died during the course of employment on 2-4-2002, the Commissioner for Workmen Compensation awarded compensation on 16-3-2003, the said order was challenged before this court in MFA No.5606/2003 and this court remanded the matter on 28-3-2005. Thereafter, after recording the evidence of the doctor, the Commissioner for Workmen Compensation once again passed the award on 20-12-2006. The Insurance Company filed this appeal and obtained interim order. In the process, the intendment of the Act to give compensation to the unfortunates is defeated by the Insurance Company. This appeal is pending consideration for more than six years. The helpless widow and two children had to be under the mercy of somebody due to 16 the conduct of the appellant-Insurance Company. Hence, the respondents are entitled for cost in this appeal. Accordingly, we quantify the cost of Rs.10,000/- to be paid by the appellant to respondents 1 to 3. Accordingly, we pass the following:
ORDER The appeal is dismissed with a cost of Rs.10,000/-
payable to respondents 1 to 3. The respondents 1 to 3 are entitled to interest at the rate of 12% p.a. from the date of the order till the date of payment.
Sd/-
JUDGE Sd/-
JUDGE mpk/-*