Karnataka High Court
The Divisional Manager The Oriental ... vs M/S Sky Way International Travels on 14 August, 2019
Author: S.G.Pandit
Bench: S. G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MR. JUSTICE S. G. PANDIT
M.F.A. NO.11022/2012 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO., LTD.,
D.O - 2, 2903, 1ST FLOOR
NEW MUSLIM HOSTEL COMPLEX
SARASWATHIPURAM
MYSORE- 570 001.
THROUGH ITS REGIONAL OFFICE
THE ORIENTAL INSURANCE CO. LTD.,
LEO SHOPPING COMPLEX
44/45, RESIDENCY ROAD
BANGALORE- 560 025
REPRESENTED BY TIS
AUTHORIZED SIGNATORY.
... APPELLANT
(BY SRI.K K VASANTH, ADV.)
AND:
1. M/S. SKY WAY INTERNATIONAL TRAVELS
NO.370/4, JLB ROAD
MYSORE- 570 001
REPRESENTED BY ITS
MANAGING DIRECTOR.
2. SRI MAHALINGAPPA
AGED ABOUT 50 YEARS
C/O M/S SKY WAY
2
INTERNATIONAL TRAVELS
NO.370/4, JLB ROAD
MYSORE- 570 001.
3. SMT. VIMALA BAI
W/O LATE R RAMESH
AGED ABOUT 33 YEARS
C/O NAGANNA
NO.63, 4TH CROSS
JANATHA NAGAR
MYSORE -570001.
4. MASTER. NEETHU
S/O LATE R RAMESH
AGED ABOUT 10 YEARS
C/O NAGANNA
NO.63, 4TH CROSS
JANATHA NAGAR
MYSORE -570 001
BEING MINOR REPRESENTED BY
HIS MOTHER AND NATURAL GUARDIAN
SMT. VIMALA BAI
W/O LATE R RAMESH
AGED ABOUT 33 YEARS
C/O NAGANNA
NO.63, 4TH CROSS
JANATHA NAGAR
MYSORE -570 001.
... RESPONDENTS
(BY SRI. D R BHARATHI, ADV. FOR R1 & R2
SRI. VEEVABHADRASWAMY, ADV. FOR R3
R4 IS MINOR REPRESENTED BY R3)
THIS APPEAL IS FILED UNDER SECTION 30(1) OF W.C.
ACT AGAINST THE JUDGMENT AND AWARD DATED:06.09.2012
PASSED IN WCA.NO.NFC/CR 7/2007 ON THE FILE OF THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, MYSORE DISTRICT, MYSORE, AWARDING A
COMPENSATION OF RS.3,45,040/- WITH INTEREST @ 12% P.A.
FROM 21.4.2006 TILL THE DATE OF DEPOSIT.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant-Insurance Company is before this Court under Section 30(1) of Workmen's Compensation Act, assailing the judgment and award dated 06.09.2012 passed in WCA/NFC/CR/7/2007 on the file of the Labour Officer and Commissioner for Workmen's Compensation, Mysore.
2. Respondent Nos.3 and 4 herein are the claimants before the Commissioner, who filed the claim petition under Sections 10 and 22 of the Workmen's Compensation Act, 1923, claiming compensation for the accidental death of one R. Ramesh. The claimants are the wife and minor son of the said deceased R. Ramesh. It is stated that the deceased was working as driver of the Ambassador Car bearing No.KA-09-9229 belonging 4 to the 1st respondent. He was receiving Rs.4,000/- per month as salary and Rs.50/- Bata every day. On 20.03.2006 the deceased proceeded to Madikeri from Mysore, to drop the passengers and stayed at Madikeri that night. On 21.03.2006 at 10.30 a.m. when he was taking bath, he died of heart attack. It is claimed that as on the date of death, he was aged 33 years.
3. On service of summons, the respondents appeared and filed their respective statement. The 1st respondent in its objection denied the employer and employee relationship with the deceased. The 3rd respondent, who is the owner of the car admitted that he was working as driver on commission basis. It was stated that the deceased was asked to take the passengers to Madikeri and come back the same day, but the deceased instead of coming back to Mysore, he stayed at Madikeri that night. At that time, on the next day morning while he was taking bath, he suffered heart 5 attack and died. As the deceased died due to heart attack and not due to the accident, the claimants are not entitled for compensation under Workmen's Compensation Act.
4. The 2nd respondent - Insurer also filed objections contenting that there is violation of policy condition and as such they are not liable to indemnify the owner of the vehicle. It is also stated that the deceased died due to heart attack and not due to any accident.
5. Based on the pleadings, the Commissioner framed the following points for consideration:-
"ªÁzÁA±ÀU¼ À ÄÀ :
1) CfðzÁgÀgÀÄ, ªÀÄÈvÀ£ÀÄ AiÀiÁªÀ ¥Àw æ ªÁ¢UÀ¼° À è PÁ«ÄðPÀ£ÁVzÀÝ£A É §ÄzÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÃÉ ?
2) CfðzÁgÀgÀÄ, ªÀÄÈvÀ£ÀÄ ¢£ÁAPÀ:21-3-2006 gÀAzÀÄ vÀ£Àß PÀvð À ªÀå¢AzÀ ªÀÄvÀÄÛ PÀvð À ªÀå¤gÀv£ À ÁVzÁÝUÀ ªÀÄÈvÀ ¥ÀnÖgÀÄvÁÛ£A É zÀÄ ¸Á©üÃvÀÄ¥Àr¸ÀĪÀgÃÉ ?
3) CfðzÁgÀgÀÄ, ªÀÄÈvÀ£ÀÄ 1£Éà ¥ÀæwªÁ¢UÀ¼À §½ PÉ®¸À ¤ªÀð»¸ÀÄwÛzÁÝUÀ ªÀiÁ¹PÀ JµÀÄÖ ªÉÃvÀ£À ¤ÃqÀÄwÛzÀÝgA É zÀÄ ºÁUÀÆ JµÀÄÖ ªÀAiÀĸÁìVvÉÛAzÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÃÉ ?6
4) CfðzÁgÀgÀÄ vÁªÀÅ ªÀÄÈvÀ£À ºÉAqÀw ªÀÄvÀÄÛ ªÀÄPÀ̼A É zÀÄ CªÀ®A©vÀgA É zÀÄ, PÁ«ÄðPÀ £ÀµÀÖ ¥ÀjºÁgÀ PÁAiÉÄÝAiÀÄ£ÀéAiÀÄ CªÀ®A©vÀgÀÄ JA§ ¥Àzz À À CxÀðzÀ ªÁSÁå£ÀzÀrAiÀÄ°è §gÀÄvÁÛgA É zÀÄ ¸Á©üÃvÀÄ¥Àr¸ÀĪÀgÃÉ ?
5) ¥ÀjºÁgÀ ªÀÄvÀÄÛ §rØ ºÁUÀÆ zÀAqÀzÀ ªÉÆvÀÛª£ À ÀÄß ¥ÁªÀw¸ÀĪÀ°è AiÀiÁªÀ ¥ÀæwªÁ¢UÀ¼ÀÄ dªÁ¨ÁÝgg À ÀÄ ªÀÄvÀÄÛ JµÀÄÖ?
6) EzÀgÀ §UÉÎ DzÉñÀªÃÉ £ÀÄ?"
Claimant No.1 - the wife of the deceased examined herself as PW.1 and marked the documents Exs.P1 to P8. The Commissioner on assessing the material on record answered all the points in favour of the claimants and awarded compensation of a sum of Rs.3,45,040/- with interest at the rate of 12% p.a. from the date of petition till the date of deposit and directed the 2nd respondent - Insurance Company to indemnify the owner of the vehicle. The Insurance Company being aggrieved by the said judgment and award is before this Court in this appeal.
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6. Heard the learned counsel for the appellant / Insurance Company and learned counsel for the respondents. Perused the appeal papers and the lower Court records.
7. The learned counsel for the appellant-Insurance Company submits that the insurer is not liable to indemnify the owner, since the death has not occurred during the course of employment. He submits that the death was not due to accident, but due to heart attack on 21.03.2006, when he was taking bath. He submits that it is the specific case of the 3rd respondent - the owner of the vehicle that the deceased was asked to drop the passengers to Madikeri and to return back to Mysore on the same day, but instead of returning on the same day after dropping the passengers, he stayed back at Madikeri and while he was taking bath, on the next day he died due to heart attack. As the death is due to heart attack, it does not amount to having taken place 8 during the course of employment. Further learned counsel for the appellant would submit that the Commissioner committed an error in taking the factor of 172.52 as per Schedule IV of Workmen's Compensation Act, instead of 169.44, since the deceased was aged more than 44 years.
8. On hearing the learned counsel for the parties and on perusal of the material on record including the lower court records, I am of the view, that no substantial question of law would arise for consideration.
9. Section 3 of the Act speaks about employer's liability for compensation. If out of and in the course of employment workman suffers personal injury by accident, employer shall be liable to pay compensation in accordance with the provisions contained therein. Amount of compensation shall be determined as per the provisions of Section 4 of the Act. The workman would 9 be entitled for compensation only if the injury by accident occurred out of and in the course of employment. A man may be in the course of employment, without being actually engaged on work for the doing of which, he is engaged. A man's employment includes matters incidental to that work. The object of the provision is to give protection and safeguard to the dependents of the workman.
10. The Division Bench of this Court in a decision NATIONAL INSURANCE CO. LTD Vs. BALAWWA reported in ILR 1993 KAR 1843, at paragraphs 10 and 16 has held as follows:
"10. With regard to the first point, 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 a series of Judicial 10 Pronouncements it is now well settled that the word 'accident' should be taken to mean a mishap or untoward event, not expected or designed; that if, a person suffers heart-attack and dies, it necessarily means that there has been an injury to the heart and that, that event being a mishap not expected or designed, is an accident and that, if a workman suffers heart-
attack out of and 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.
11. XXXXX
12. XXXXX
13. XXXXX
14. XXXXX
15. XXXXX
16. It is well recognized that Workmen's Compensation Act is a beneficial social legislation, the object of which is to provide security to certain class of workmen and that the provisions of the Act should be construed in a broad and liberal manner so as to advance the object of the enactment and not in a way which would defeat it.
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11. In the light of the principles laid down in the above decision the facts of the case on hand will have to be examined. Firstly, the deceased was the driver of the Car bearing No.KA-09-9229 and the 3rd respondent before the Commissioner was the owner of the said car. The 3rd respondent admits in his statement that the deceased was engaged on 20.03.2006 for dropping the passengers to Madikeri and to return back to Mysore on the same day. There is no dispute with regard to the engagement of the deceased by the 3rd respondent to drive the Car bearing No.KA-09-9229. The post mortem report of Doctor T. Padmanabh Forensic Specialist, District Hospital, Madikeri, would indicate that the deceased died due to respiratory problem and that is due to work pressure. Based on the evidence on record, it is clear that the deceased was engaged by the respondent for driving the vehicle and he was sent to 12 Madikeri to drop the passengers and for the reasons best known, he stayed at Madikeri and died on the next day. There is no evidence on record to say that the deceased was to return on the same day. Hence it is to be presumed that in continuation of his work he stayed back at Madikeri. Moreover forensic report would show that the deceased died due to heart attack which was the result of work pressure. That when the deceased was engaged by the 3rd respondent and was sent to Madikeri, where he suffered heart attack due to pressure of work and died. The said untoward event or mishap happened during the course of employment. The contention that the deceased died due to heart attack and not by accident, hence insurer is not liable, deserves to be rejected, since it is settled law that if a workman suffers heart attack out of and in the course of his employment, then the employer is liable to pay compensation. Therefore, the Commissioner for 13 Workmen's Compensation was justified in holding that the death occurred during the course of employment.
12. Secondly, the other contention urged by the learned counsel for the appellant is that the deceased was aged more than 44 years as per Ex.P.8 - the copy of Driving Licence which indicated date of birth as 12.10.1961. Therefore, the Commissioner ought to have taken the factor applicable as 169.44, which is applicable to the age of 45 years. The said contention cannot be accepted on a reading of Schedule IV. In the case on hand, as on the date of accident, the deceased had completed 44 years of age and not completed 45 years. Therefore, the Commissioner is justified in taking the factor of 172.52 applicable to the age of the deceased at 44 years.
13. Thus, no ground is made out to admit the appeal and no substantial question of law would arise for 14 consideration. It is submitted by the learned counsel for the appellant that the Insurance Company has already deposited the award amount before the Commissioner for Workmen's Compensation. The respondents are at liberty to withdraw the amount in deposit. The appeal is rejected.
Sd/-
JUDGE NG* CT:bms