Gujarat High Court
Oriental Insurance Company vs Bhimabhai Ebhabhai Bhogesara & on 14 August, 2014
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
C/FA/1853/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1853 of 2014
With
CIVIL APPLICATION NO. 8881 of 2014
In
FIRST APPEAL NO. 1853 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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ORIENTAL INSURANCE COMPANY....Appellant(s)
Versus
BHIMABHAI EBHABHAI BHOGESARA & 1....Defendant(s)
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Appearance:
MR DAKSHESH MEHTA, ADVOCATE for the Appellant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
Date : 14/08/2014
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C/FA/1853/2014 JUDGMENT
ORAL JUDGMENT
The present First Appeal is filed by Oriental Insurance Company being aggrieved by judgment and order dated 31.03.2014 passed by the learned Commissioner for Workmen's Compensation Act & Judge, Labour Court, Junagadh in Workman Fatal Case No.33 of 1999. Learned advocate Mr.Dakshesh Mehta invited attention of the Court to paras 1.2, 2, 8.1, 9.1, 9.2, 9.3, read these paras and submitted that the learned Commissioner for Workmen's Compensation Act committed error in holding the Insurance Company liable to pay compensation to the workman, who died of heart attack while he was on duty.
2. The learned advocate for the Insurance Company made available for perusal a copy of decision of the Division Bench of this Court in the matter of New India Assurance Company Limited Vs. Badrudin Karmalibhai Ramani, reported in 2000 (O) GLHEL-HC 208638 and submitted that the said judgment is wrongly applied to the facts of the present case. The learned advocate could not effectively convince this Court that the facts of the said case are applicable to the facts of the case on hand.
3. The learned advocate also relied upon decision of the Hon'ble the Apex Court in the matter of Jyoti Ademma Vs. Plant Engineer, Nellore and another reported in (2006) 5 SCC 513. The learned advocate relied upon the observations made by the Page 2 of 6 C/FA/1853/2014 JUDGMENT Hon'ble the Apex Court in paras 6, 7 and 8, and emphasized that, "6. .. .. If the workman dies as a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. .. .."
4. The learned advocate also relied upon the observations made by the Hon'ble the Apex Court in para 7, wherein the Hon'ble the Apex Court observed as under:
"7. The expression "accident" means an untoward mishap which is not expected or designed. .. .."
The learned advocate next emphasized the observations made by the Hon'ble the Apex Court in para 8, which read as under:
"8. .. .. The High Court also noted that the job of the deceased was only to switch on or off and therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties... .."
5. On careful consideration of this judgment this Court is of the opinion that the same is not applicable to the facts of the present Page 3 of 6 C/FA/1853/2014 JUDGMENT case, because the Hon'ble the Apex Court has noted that, "If the workman dies as a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer."
The learned advocate missed to take note of the next sentence of the judgment wherein the Hon'ble the Apex Court said that, " .. .. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable."
6. Similarly, in para 8 learned advocate missed to take note of the observations made by the Hon'ble the Apex Court, which read as under:
"8. .. .. In view of the factual findings recorded, the High Court's judgment does not suffer from any infirmity."
7. In the present case, it is the case of the appellant that the Page 4 of 6 C/FA/1853/2014 JUDGMENT deceased was suffering from heart ailment right from the year 1990. It is really painful to put on record that the employer knew about the physical condition of the employee/ workman and still allowed him to do overtime and strain to be undertaken by such employee. The said act of the employer is nothing but greed for profit in business and that the employer has failed to take care of the health of his employee. It was already on record that the employee is suffering from heart ailment from 1990, there was no reason for the employer to allow the employee to undertake overtime. This Court cannot be oblivious of the fact that in these days of skyrocketing prices/ inflation and taking into consideration the social liability a person is compromising with the health condition and in such a situation if employee had offered himself for overtime he cannot be found fault with, more particularly, when the employer is putting employee's ailment as defence to shirk his liability. The Court is of the opinion that Workmen's Compensation Commissioner has not committed any error. The judgment and order passed by the Workmen's Compensation Commissioner is absolutely in accordance with law. The First Appeal is dismissed.
8. As the First Appeal is dismissed, the Civil Application does not survive. The same is disposed of.
(RAVI R.TRIPATHI, J.)
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C/FA/1853/2014 JUDGMENT
karim
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