Chattisgarh High Court
Divisional Manager The Oriental ... vs Arjinder Kaur And 3 Others on 16 November, 2011
HIGH COURT OF CHATTISGARH BILASPUR
M A C No 117 OF 2010
Divisional Manager the Oriental Insurance Company Ltd
...Petitioners
Versus
Arjinder Kaur and 3 others
...Respondents
! Mr Sudhir Agrawal counsel for the appellant ^ None for the respondents CORAM: HONBLE I M QUDDUSI & HONBLE G MINHAJUDDIN JJ Dated: 16/11/2011 : Judgement ORAL ORDER (16.11.2011) MISCELLANEOUS APPEAL UNDER SECTION 30 OF THE WORKMEN'S COMPENSATION ACT, 1923 Per I.M. QUDDUSI, J,
1. List is being revised. Case is again called out. No one is present for the respondents despite repeated calls. However, Mr. Sudhir Agrawal, counsel for the appellant is present. Therefore, we are inclined to hear learned counsel for the appellant and proceed exparte against the respondents.
2. This appeal has been filed by the Insurance Company against the impugned award dated 24.10.2009 passed by Commissioner for Workmen's Compensation Act, 1923 (Labour Court), Durg, granting a compensation of Rs.3,56,980/- plus 30% penalty thereon that is Rs.1,07,094/-.
3. Brief facts of the case as per the version of the claimants are that on 16.07.2007 deceased Manjit Singh was assigned duty to drive the Truck bearing Regn.No.C.G.04-E/4645 owned by non-applicant no.1. After loading the Truck at Raipur, Manjit Singh was going to Pune (Maharashtra) by driving the said Truck. On the way at Sakoli (Maharashtra), all of a sudden he suffered chest pain, due to which, he parked the Truck on the road side and due to further development of pain in chest, his colleague and others have admitted him in District Hospital, Bhandara (Maharashtra) where the doctors have diagnosed him as the patient of brain hemorrhage and paralysis. He was referred to Sector-9, Bhilai Hospital where during the course of treatment, again the deceased suffered heart attack and died on 17.7.2007. It is alleged that the deceased worker died due to heavy burdensome work assigned to him during the course of employment under non-applicant no.1, which has caused heart attack resulting in his death.
At the time of accident, the deceased was aged about 42 years, he was employed as driver by non- applicant no.1 and was drawing monthly wages of Rs.4500/- plus 200/- as daily allowance. The claimants being legal representatives/ dependents have filed application under section 22 of the Workmen's Compensation Act, 1923 (for short `the Act of 1923') for the total award of Rs. Rs.3,79,120/- on various heads.
4. The Commissioner, W.C. Act, has held that Manjit Singh has died during the course of employment under non-applicant no.1, he was aged about 42 years, and the claimants are entitled to receive a compensation amount of Rs.3,56,980/- from the appellant Insurance Company and 30% of penalty thereon i.e. Rs.1,07,094/- from non-applicant no.1 (owner).
5. We have heard learned counsel for the appellant and have also gone through the records.
6. There is provision in Workmen's Compensation Act that compensation can be claimed only under the scope of section 3(1) contained in Chapter-II. Section 3(1) is reproduced as under:
3. Employer's liability for compensation.-(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer, shall be liable to pay compensation in accordance with the provisions of Chapter-
II:
Provided that the employer shall not be so liable-
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
(b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to-
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or
(iii) the willful removal or disregard by the workman of any safety-guard or other device which he knew to have been provided for the purpose of securing the safety of workman.
7. If injury or the death has been caused other than by an accident, the liability to pay compensation has not been mentioned in the Workmen Compensation Act.
8. Reliance has been placed on a decision of the Supreme Court in Shakuntala Chandrakant Shreshti -v- Prabhakar Maruti Garvali (2007) 11 SCC 668. In the said case the deceased had admittedly suffered a massive heart attack. Nothing has been brought on record to show that the heart attack was caused while doing any job. Even according to the employer, he at the relevant time was merely getting down from the vehicle. In para 27 the Hon'ble Apex Court held that "an accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. In case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are :
(i) stress and strain arising during the course of employment.
(ii) nature of employment
(iii) Injury aggravated due to stress and strain.
In paras 29 & 30, Hon'ble the Apex Court has further held as under :
"29. "Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf."
"30. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefore can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor."
Further in para 39 it has been held as under:
"39. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress and strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well settled that for arriving at a finding of jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question."
However, despite the above position of law laid down by Hon'ble Apex Court, Para 44 contains a direction that in the event any amount has been paid to the appellant/claimant, the same need not be refunded.
9. A perusal of the record shows that the deceased did not die due to accidental injury but according to the claimants he developed chest pain due to strain and stress during the course of employment and died in the hospital. Dr. A. H. Khan who treated the deceased has deposed that the deceased was patient of blood pressure and sugar. There was paralysis on his left side. Blood test and C.T. Scan were conducted on him. But no report of C.T. scan was produced. He has further deposed that in the prescriptions, there was mention of blood pressure and paralysis. There was no heart attack. On a query put to him that whether the sleeplessness and heavy work would be reasons for blood pressure, he replied that there are no definite reasons for blood pressure but mental stress would be one of the reasons. This witness has not clearly stated that the death was due to cardiac arrest or some other reasons. It also appears that no postmortem was conducted on the person of deceased, therefore, the report of postmortem was not available. In these circumstances, we are of the opinion that the matter requires reconsideration at the end of Commissioner, Workmen Compensation to ascertain the fact that whether the deceased died of heart attack due to stress and strain in the course of employment or some other reasons.
10. Hence, we allow this appeal in part, set aside the impugned award dated 24.10.2009 and remit the matter back to the Commissioner, Workmen's Compensation, for decision afresh in the light of the observations made above. The Commissioner may reexamine the doctor and if necessary may also get medical opinion from specialist doctors so as to reach a definite finding.
11. Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file documents or get the documents verified etc., and thereafter the Commissioner shall make the award afresh at the earliest. The parties shall appear before the court below on 16th January, 2012. The records of the Tribunal shall be sent back without further delay. Since no one appears on behalf of the respondents before this Court, notice be issued to the respondents for securing their presence or for causing their representation before the Court below. The amount which has been deposited by the Insurance Company shall be subject to the fresh decision of the Commissioner.
12. In the result, the appeal is allowed in part. No order as to costs.
JUDGE