Karnataka High Court
Shriram General Ins Co Ltd vs Smt Mamatha on 30 January, 2024
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NC: 2024:KHC:4251
MFA No. 6728 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 6728 OF 2017 (WC)
BETWEEN:
SHRIRAM GENERAL INS. CO LTD.,
II FLOOR, MONARCH CHAMBERS,
OPP: INFANTRY HALL, INFANTRY ROAD,
BENGALURU-01
NOW REPRESENTED BY DEPUTY MANAGER LEGAL,
SHRIRAM GENERAL INS. CO LTD.,
# 5/4, 3RD FLOOR, S V ARCADE,
BILEKAHALLI MAIN ROAD,
OFF: B.G.ROAD, IIM POST,
BENGALURU-560 076.
...APPELLANT
(BY SRI A N KRISHNA SWAMY, ADVOCATE)
AND:
1 . SMT. MAMATHA,
Digitally signed W/O B M SANTOSH,
by ANNAPURNA NOW AGED ABOUT 29 YEARS.
G
Location: High 2 . S ARJUN,
Court of
Karnataka S/O B M SANTHOSH,
NOW AGED ABOUT 7 YEARS,
SINCE MINOR REP. BY
NATURAL GUARDIAN MOTHER
THE 1ST RESPONDENT HEREIN.
BOTH R/AT I CROSS, SRINIVASAPURA,
KASABA HOBLI, MANDYA TALUK,
MANDYA DISTRICT.
3 . AJGAR PASHA,
S/O ABDUL SATTAR,
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NC: 2024:KHC:4251
MFA No. 6728 of 2017
AGED MAJOR,
NO.437, CHIKKANAYAKARA STREET,
T.NARASIPURA TOWN,
MYSURU DISTRICT.
4 . KAISER PASHA,
S/O ABDUL SATTAR,
NOW AGED ABOUT 31 YEARS,
RAJA TRANSPORT,
NO.437, OLD MASSJID ROAD,
T.NARASIPURA TOWN,
MYSURU DISTRICT.
...RESPONDENTS
(BY SRI P MAHESHA, ADVOCATE FOR R1 & R2;
SRI SYED ABDUL SABOOR, ADVOCATE FOR R3 & R4)
THIS MFA IS FILED U/S 30(1) OF EMPLOYEE'S
COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD
DATED 03.07.2017 PASSED IN ECA.NO.77/2014 ON THE FILE
OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM MACT
MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the Insurance Company is directed against the judgment and award passed in ECA No.77/2014 dated 03-07-2017 by the I Additional Senior Civil Judge and CJM and MACT, Mandya, whereby a sum of Rs.10,58,950/- was awarded as compensation on account of the death of one B.M.Santhosh.
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NC: 2024:KHC:4251 MFA No. 6728 of 2017
2. The petitioners are the wife and minor son of deceased B.M.Santhosh, the driver of the Eicher Goods Vehicle owned by respondent No.1. The petitioners contended that the deceased was driver of the Eicher goods vehicle bearing No.KL.05.U.1971. Hence, there existed relationship of employer and employee between respondent No.1 and the deceased. It was contended that on 27-8-2014 deceased B.M.Santhosh was driving the goods vehicle towards TVS Factory for delivery of spare parts. On account of stress and strain due to driving of the vehicle, deceased B.M.Santhosh developed severe chest pain and he was taken to K.R. Hospital, Mysuru, for treatment, but he died on the way to the hospital i.e., during the course of employment in the capacity of the driver of the goods vehicle as an employee. They also contended that the vehicle was standing in the name of respondent No.1, but it was being used by respondent No.3, who is none else than the brother of respondent No.1. Further, it was contended that the deceased was receiving the salary of Rs.10,000/- per month and on -4- NC: 2024:KHC:4251 MFA No. 6728 of 2017 account of his death, petitioners are put to untold hardship and as such they are entitled for adequate compensation.
3. On issuance of notice, respondent Nos. 1 and 2 appeared through their counsel and later the respondent No.3 was impleaded.
4. Respondent Nos. 1 and 3 contended that the petition is not maintainable and that the compensation claimed by the petitioners is highly exorbitant and baseless and that the vehicle was insured by respondent No.2.
5. Respondent No.2 contended that the terms and conditions of the policy were violated by the owner of the vehicle and that the alleged death of the deceased was not in the course of the employment. Inter alia, it contended that the deceased was not having valid licence to drive the vehicle and therefore, respondent No.2 is not liable to pay any compensation. It was also contended that the deceased was working as a driver under one Raja -5- NC: 2024:KHC:4251 MFA No. 6728 of 2017 Transport which is owned by Kaiser Pasha and this fact is evident from the police records. Hence, it sought for dismissal of the petition.
6. On the basis of the above pleadings, the Tribunal framed following issues for consideration:
1. Whether the petitioners prove that deceased B.M.Santhosh was employee and respondent No.1 is employer and their relationship exists as master and servant?
2. Whether petitioners prove that during the course of employment deceased B.M Santhosh was being employed as a driver in the Eicher Goods vehicle bearing No.KL-05-U-1971 belonging to the first respondent due to stress on 27.08.2014 he was driving the said vehicle towards TVS factory for delivery of spare parts.
That on account of stress he was developed severe chest pain and he was being taken to K.R Hospital, Mysuru for treatment but he died on the way to the hospital?
3.Whether petitioners are entitled for compensation? If so at what rate and from whom?
4. What order or award?
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7. In order to prove the case, the petitioners got examined one witness as PW1 and got marked five documents on their behalf as Exs.P1 to P5. The official of respondent No.2 was examined as RW1 and copy of the insurance policy was marked as Ex.R1.
8. After hearing both the sides, the Tribunal answered issue Nos. 1 and 2 in the affirmative and issue No.3 in partly in the affirmative and proceeded to pass the impugned judgment.
9. Being aggrieved by the said judgment, the Insurance Company has approached this Court in appeal.
10. The appellant/Insurance Company contends that the impugned judgment passed by the Tribunal is not in accordance with law and death of the deceased Santhosh was natural and it was not as a consequence of the employment. It is contended that the provisions of Section 3 of Employees Compensation Act, does not enable the claimants to make a claim when the driver had completed his duty at 9.00 a.m. and thereafter, at about -7- NC: 2024:KHC:4251 MFA No. 6728 of 2017 3.00 p.m., he had complained of the chest pain and died owing to myocardial infarction. It is also contended that the Tribunal could not have taken the income of the deceased Santhosh at more than Rs.8,000/- per month which is against the notification issued by the Central Government as contemplated under Section 4(1B) of Employees Compensation Act. Therefore, there are substantial questions of law which arise and the same needs to be considered.
11. On issuance of notice, the respondents have appeared before this Court through their counsel. The records of the proceedings before the Tribunal were secured. The arguments by both the sides were heard.
12. The learned counsel appearing for the appellant-Insurance Company would contend that the deceased Santhosh was a driver and he died natural death and there was no such accident as contemplated under Section 3 of the Employees Compensation Act. It is further contended that, the UDR report consisting of P.M. -8- NC: 2024:KHC:4251 MFA No. 6728 of 2017 report and the inquest mahazar would show that there was no external injury on the body of the deceased Santhosh and therefore, the death was not due to any accident. He further submitted that the judgment of the Apex Court in the case of Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and another1 lays down that, the death occurred due to heart attack cannot come within the purview of 'accident' as contemplated under Section 3 of Employees Compensation Act. He submits that the said judgment is aptly applicable on all its angle to the present case and therefore, the Tribunal erred in fastening the liability on the appellant herein.
13. The second prong of the argument of the learned counsel for the appellant is that, the Tribunal should have considered the income of the deceased at Rs.8,000/- per month and it erred in holding that the income of the deceased at Rs.10,000/- per month. He has 1 (2007) 11 SCC 668 -9- NC: 2024:KHC:4251 MFA No. 6728 of 2017 drawn attention of this Court to the provisions of Section 4(1B) of the Employees Compensation Act, where under the Central Government has notified the income at Rs.8,000/- per month.
14. Per contra, learned counsel appearing for respondents/ claimants has contended that heart attack suffered by the deceased was on account of the stress and strain in the employment and the fact that the deceased Santhosh was under the employment of respondent Nos. 1 and 3 is admitted and therefore, no fault can be found with the finding of the Tribunal. In this regard, he placed reliance on the decision in the case of Divisional Manager, National Insurance Company Limited, Dharwad Vs. Smt. Shankramma and others2 wherein this Court had an occasion to deal with the similar questions involved. He also relied on the decision in the case of Manjunatha N.E. and others Vs. K.U.Radhakrishnan and another3, where again, the co- 2 2022 (6) Kar.L.J. 185, 3 2023 (4) Kar.L.J. 146
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 ordinate Bench of this Court relied on the decision in Shankaramma's case referred supra. He also relied on the decision in the case of C.Manjamma and another Vs. Divisional Manager, New India Insurance Company Limited4 rendered by the Apex Court wherein, it was held that question of law arises when the findings are perverse or when no evidence is adduced to establish the facts; Commissioner after considering the evidence and rebuttal evidence recorded the findings which cannot be said to be perverse so as to give rise to substantial question of law. He also relied on the decision in the case of North East Karnataka Road Transport Corporation vs. Sujatha5 rendered by Apex Court.
15. The substantial question of law that arise in the present case is only in respect of the income of the deceased being taken at Rs.10,000/- per month is contrary to the provisions of Section 4(1B) of the Employees Compensation Act. Though the question as to 4 2022 ACJ 2661, 5 (2019) 11 SCC 514.
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 whether there existed any accident as contemplated under Section 3 of Employees Compensation Act, enabling the claimants to make a claim when the duty of driver coming to end at 9.00 a.m., and the said person complained the chest pain at about 3.00 p.m. and died due to myocardial infraction is raised, it cannot be a substantial question of law. It is a question of fact and therefore, answering the said question does not arise.
16. The first aspect to be considered is regarding the income of the deceased. The Tribunal has held that the deceased was working as a driver and respondent Nos. 1 and 3 have admitted that he was being paid a sum of Rs.10,000/- per month. Therefore, it concluded that the income of the deceased to be held at Rs.10,000/- per month. It is pertinent to note that there is no documentary evidence which would show that the income of the deceased was Rs.10,000/- per month. The wages paid by respondent No.3 to the deceased Santhosh though admittedly is Rs.10,000/- per month, it cannot be
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 accepted as a gospel truth in the absence of any documentary proof. Evidently, the petitioners have not produced any such documentary proof showing the income of the deceased Santhosh.
17. The provisions of Section 4(1B) of Employees Compensation Act, lay down that the Central Government may notify from time to time wages for the purpose of calculation of the compensation. Admittedly, the Central Government has notified the wages at Rs.8,000/- per month for the purpose of Section 4 of the Employees Compensation Act. Therefore, the Tribunal could not have accepted the wages of the deceased at Rs.10,000/- per month and it should have limited the wages at Rs.8,000/- per month. Therefore, the question of law is answered accordingly.
18. Though the learned counsel appearing for the appellant-Insurance Company has raised the question as to whether the death of the deceased Santhosh was on account of accidental injuries as contemplated under
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 Section 3 of the Employees Compensation Act, this aspect is no more res-integra. In the judgment relied by the learned counsel for the appellant in the case of Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali referred supra, the Apex Court has observed in para 29 as below:
"29. 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 hear failure in a case of the present nature would not be presumed. No legal friction therefore can be raised. As a person suffering from a hear 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-fact rule can be laid down therefore."
19. It is pertinent to note that it was a case wherein the Commissioner had dismissed the claim petition. The Apex Court has also noticed that the copy of the claim petition has not been placed before it to appreciate as to whether there was any pleading that the heart attack was because of stress and strain in the work. It has noticed
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 that the stress and strain resulted in sudden heart failure would not be presumed, but there should be pleading and the proof.
20. The perusal of the pleadings of the claimants would show that the deceased Santhosh was working as a driver under respondent No.1 and on 27-8-2014 Santhosh was driving Eicher goods vehicle towards TVS factory for delivery of spare parts and on account of stress and strain by driving, he had the chest pain, while he was taking to the hospital he died. Therefore, there is clear averment in the petition that the death of the deceased was on account of the stress and strain.
21. The testimony of PW1 also reiterate the said contention. In the cross-examination, she admits that Santhosh had died due to heart attack but not due to accident. The complaint which was lodged before the police by none else than PW1 shows that deceased was working as the driver of the Eicher goods vehicle and on 26-8-2014 at about 7.00 p.m., he came to his house at
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 Mysuru with loaded vehicle, had slept in the house and on next morning, he had taken the vehicle to TVS factory at about 9.00 a.m. At about 1.30 p.m., Santosh had called her and informed that he is suffering from chest pain. Complaint also states that he would sleep for some time and thereafter, he would go to hospital. Thereafter, at about 3.00 p.m., somebody called the complainant and informed that deceased Santhosh had severe chest pain and he has been shifted to K.R. Hospital Mysuru. Evidently, PW1 was staying at Srinivasapura of Mandya Taluk. Deceased Santhosh has taken the vehicle to Mysuru to TVS factory. Therefore, at any stretch of imagination, it cannot be said that the deceased was not under the employment at the time of heart attack. Evidently, from 9.00 a.m., onwards deceased was on duty and he was in the vehicle and had taken the same near the TVS factory. Under these circumstances, the contentions of the appellant-Insurance Company that the heart attack was not during the course of the employment cannot be accepted.
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22. The judgments of this Court in the case of Shankaramma and Manjunatha N.E. and others referred supra, lay down that, "if the heart attack is on account of the stress and strain of the employment, then definitely it would amount to the injuries suffered during the employment". In the case of Shankaramma, supra, in para 15 this Court has observed that, the law as enunciated in the case of National Insurance Company Vs. Renukamma6 categorically lays down that the driving job is undoubtedly tensioning job, particularly, to cope with the present day traffic and other things and stress is involved in the job. This Court also relied on the decision in the case of Golla Rajanna etc., Vs. Divisional Manager and another , wherein it was held that the Commissioner is the last authority on the facts. It was also observed that 'the Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law and it being a welfare legislation'. It is 6 2018 ILR Karnataka 539,
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 also observed that the High Court has missed this crucial question of limited jurisdiction and has ventured to re- appreciate the evidence and therefore, it is not possible to accept that there exists a substantial question of law.
23. Similarly, in recent decision in the case of C. Manjamma and another Vs. Divisional Manager, New India Assurance Company Limited, referred supra, in para 12, the Apex Court observed as below:
"12. Even in para 42 of the decision in Shakuntala Chandrakant Shreshti (supra), this court has made it clear that a question of law would arise when the same is not dependant on examination of evidence and which may not require any fresh investigation of fact. A question of law would arise, of course, when the finding is perverse or when no legal evidence is adduced to establish the jurisdictional facts. The observations made by the High Court in the present case in para 21 appear to be rather of assumptive nature than of specific conclusion on perversity. In other words, the view as taken by the Commissioner was the one based on the material placed on record which basically established that deceased was indeed employed as a driver on the vehicle; he was 30 years of age; and he died while on duty and his demise due
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 to cardiac arrest was attributable to his job of driver. There had not been shown any other background aspect or any other clinching feature because of which death of the workman, a 30-year-old person, could be attributed to any other cause. That being the position, the view taken by the commissioner had been a possible view of the matter in the given set of facts and circumstances and there was no reason for the High Court to interfere with the same, particularly when the case did not involve any substantial question of law within the meaning of section 30 of Employee's Compensation Act, 1923."
24. In para 12, the Apex Court has distinguished the case of Shakuntala Chandrakant Shreshti and observed that the question of law would arise when the same is not dependent on question of evidence and which may not require any fresh investigation of the fact.
25. When the Tribunal has come to the conclusion that deceased suffered heart attack during the course of the employment, there cannot be any doubt that it does not amount to the question of law. Therefore, at no stretch of imagination, it can be held that there is any substantial
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 question of law as to whether the death deceased Santhosh was on account of the stress outside the purview of the course of employment. For these reasons, the appellant cannot be allowed to raise the question as to whether there existed any material to show that the heart attack suffered by the deceased was on account of stress and strain.
26. The Tribunal has also relied on the decision of the Apex Court in the case of Param Pal Singh Vs. National Insurance Company Limited7, where heart attack was considered to be during the course of the employment and out of the stress and strain. It also considered the judgment in the case of Shakuntala Chandrakant Shreshthi. In para 29 and 30 it was observed as below;
"29. Applying the various principles laid down in the above decisions to the facts of this case, we can validly conclude that there was causal connection to the death of the deceased with that 7 2013 ACJ 526
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 of his employment as a truck driver. We cannot lose sight of the fact that a 45-year-old driver meets with his unexpected death, may be due to heart failure while driving the vehicle from Delhi to a distant place called Nimiaghat near Jharkhand which is about 1152 km away from Delhi, would have definitely undergone grave strain and stress due to such long distance driving. The deceased being a professional heavy vehicle driver when undertakes the job of such driving as his regular avocation it can be safely held that such constant driving of heavy vehicle, being dependent solely upon his physical and mental resources and endurance, there was every reason to assume that the vocation of driving was a material contributory factor if not the sole cause that accelerated his unexpected death to occur which in all fairness should be held to be an untoward mishap in his lifespan. Such an "untoward mishap" can therefore be reasonably described as an "accident" as having been caused solely attributable to the nature of employment indulged in with his employer which was in the course of such employer's trade or business.
30. Having regard to the evidence placed on record there was no scope to hold that the deceased was simply travelling in the vehicle and that there was no obligation for him to undertake
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NC: 2024:KHC:4251 MFA No. 6728 of 2017 the work of driving. On the other hand, the evidence as stood established proved the fact that the deceased was actually driving the truck and that in the course of such driving activity as he felt uncomfortable he safely parked the vehicle on the side of the road near a hotel soon whereafter he breathed his last. In such circumstances, we are convinced that the conclusion of the Commissioner of Workmen's Compensation that the death of the deceased was in an accident arising out of and in the course of his employment with the second respondent was perfectly justified and the conclusion to the contrary reached by the learned Judge of the High Court in the order impugned in this appeal deserves to be set aside."
Hence, no fault can be found in respect of the said conclusion reached by the Tribunal.
27. For the aforesaid reasons, the impugned judgment and award deserves to be modified. There is no dispute regarding the age of the deceased Santhosh. Hence, the compensation is calculated as Rs.8,000/- x 50% x 211.79 = Rs.8,47,160/- by applying factor of 211.79 as per the schedule to the Employees Compensation Act.
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28. Hence, the following:
ORDER The appeal is allowed in part.
The petitioners are entitled for the compensation of Rs.8,47,160/- along with interest at 12% p.a. from the date of expiry of 30 days from the incident till realization.
The Insurance Company shall deposit the compensation amount with interest before the Tribunal within a period of six weeks.
Rest of the order passed by the Tribunal regarding apportionment and fixed deposit remains unaltered.
The amount in deposit shall be transmitted to the jurisdictional Tribunal forthwith.
Sd/-
JUDGE tsn* List No.: 1 Sl No.: 26