National Insurance Company Ltd vs Nirmaljeet Kaur

Manoj K. Tiwari, J

This appeal from order has been filed by National Insurance Company Ltd. against the judgment and order dated 17.10.2008 passed by Workmen Compensation Commissioner, Haldwani, District Nainital in W.C.A. No. 02 of 2005, Smt. Nirmaljeet Kaur Vs Surjit Singh & another, whereby a sum of Rs.2,47,450/- was awarded as compensation to the claimant.

After hearing learned counsel for the parties, the following Substantial Questions of Law were formulated:-

"I. Whether the Workmen Compensation Commissioner was justified in awarding the compensation in the absence of any evidence to prove that the workmen died due to heart attack.

II. Whether the claimant is entitled to compensation in the absence of any evidence to show that alleged heart attack occurred in the course of employment due to stress and strain of work."

Sri Jasveer Singh, husband of respondent No. 1 - Smt. Nirmaljeet Kaur, was employed by Surjit Singh (since deceased) (husband of respondent No. 2/1 - Smt. Indrajeet Kaur) for driving a truck. On 19.10.2004, Sri Jasveer Singh died while driving the truck bearing Registration No. HR38K/5855. His wife - Smt. Nirmaljeet Kaur filed an application under Workmen's Compensation Act, 1923 asserting that at the time of his death, her husband was 48 years old and was employed by Sri Surjit Singh as driver on monthly salary of Rs.4,500/- and apart from salary, employer paid him Rs.50/- per day as diet money. She further contended that since the death of her husband occurred during the course of employment, therefore, she is entitled to Rs.3,68,340/-as compensation from the employer along with interest and penalty.

The employer/owner of the truck filed his written statement, wherein he admitted death of claimant's husband during course of employment. He further admitted that claimant's husband was employed on monthly salary of Rs.4,500/-. He further submitted that since the truck was insured with National Insurance Company Ltd, therefore, the liability, if any, to pay compensation is of the Insurance Company.

The claimant in her deposition stated that her husband was an employee of Sri Surjit Singh (owner of the truck) and he was driving the truck, loaded with sand, to Moradabad. In cross examination she stated that her husband had no medical history and he died during the course of employment.

Learned Workmen Compensation Commissioner had found that the deceased had been engaged by Surjeet Singh, owner of the truck. It was also found that on 19.10.2004, the workmen died while driving the truck, loaded with sand from Haldwani to Moradabad. The finding is based on deposition of Smt. Nirmaljeet Kaur (claimant).

The oral evidence thus led is very categorical that the deceased had begun driving the truck and had taken it to some distance. He suffered heart attack while driving the truck. He was taken to the hospital where he was declared brought dead. No evidence was led by the Insurer which may create a doubt regarding correctness of the finding recorded by the Commissioner, that the workmen suffered heart attack while driving the truck which resulted in his death.

Learned counsel for the appellant has submitted that there was no accident involving the vehicle, therefore, death of the workman may have resulted in a liability on the owner but not the Insurer. The contention made on behalf of the appellant is unacceptable in view of self apparent and settled position in law arising from a plain reading of Section 3 of Employees Compensation Act, 1923 and the judgment of Hon'ble Supreme Court in the case of Param Pal Singh v. National Insurance Co. reported in (2013) 3 SCC 409. Paragraph nos. 22 to 29 of the said judgment are extracted below:-

"22. Once we cross the said hurdle the only other question to be considered is whether death of the deceased was in an accident arising out of and in the course of his employment with the second respondent? It is common ground that the vehicle which was driven by the deceased did not meet with any road accident on 17-7- 2002. As a matter of fact, the deceased while driving the vehicle from Delhi to Nimiaghat when reached near the destination, namely, Nimiaghat felt giddy and thereafter is stated to have collapsed as he was found in a faint condition in the vehicle which he managed to park on the roadside.

The entitlement to claim compensation is, therefore, dependent on fulfilment of the stipulations contained in Section 3(1) of the Workmen's Compensation Act, which read as under:

"3. Employer's liability for compensation.-(1) If personal injury is caused to an employee 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 this Chapter:

Provided that the employer shall not be so liable-

(a)-(b) * * *

(i)-(iii) * * *"

However, there are decisions of the English Court as early as of the year 1903 onwards stating that an unlooked for mishap or an untoward event which is not expected or designed should be construed as falling within the definition of an "accident" and in the event of such "untoward" "unexpected" event resulting in a personal injury caused to the workman in the course of his employment in connection with the trade and business of his employer, the same would be governed by the provisions of Section 3 of the Workmen's Compensation Act. Such a legal principle evolved from time immemorial got the seal of approval of this Court and for this purpose we can refer to the celebrated decision in Ritta Farnandes. After referring to the decision of the House of Lords in Clover, Clayton & Co. Ltd. v. Hughes this Court in Ritta Farnandes referred to the relevant passage in the decision of the House of Lords in para 4, which reads as under:

"4. Even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under the circumstances which can be said to be accidental, his death results from injury by accident. This was clearly laid down by the House of Lords in Clover, Clayton & Co. Ltd. v. Hughes where the deceased, whilst tightening a nut with a spanner, fell back on his hand and died. A post-mortem examination showed that there was a large aneurism of the aorta, and that death was caused by a rupture of the aorta. The aneurism was in such an advanced condition that it might have burst while the man was asleep, and very slight exertion or strain would have been sufficient to bring about a rupture. The County Court Judge found that the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal, and held upon the authorities that this was an accident within the meaning of the Act. His decision was upheld both by the Court of Appeal and the House of Lords:

'... No doubt the ordinary accident[,"said Lord Loreburn, L.C."] is associated with something external; the bursting of a boiler, or an explosion in a mine, for example. But it may be merely from the man's own miscalculation, such as tripping and falling. Or it may be due both to internal and external conditions, as if a seaman were to faint in the rigging and tumble into the sea. I think it may also be something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel. If that occurred when he was lifting a weight it would properly be described as an accident. So, I think, rupturing an aneurism when tightening a nut with a spanner may be regarded as an accident.'

With regard to Lord MacNaughten's definition of an accident being 'an unlooked for mishap or untoward event which is not expected or designed' it was said that an event was unexpected if it was not expected by the man who suffered it, even though every man of common sense who knew the circumstances would think it certain to happen."

In a recent decision of this Court in Shakuntala Chandrakant Shreshti, the factors to be established to prove that an accident has taken place have been culled out and stated as under in para 26:

"26. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:

(1) stress and strain arising during the course of employment,

(2) nature of employment,

(3) injury aggravated due to stress and strain."

In Malikarjuna G. Hiremath v. Oriental Insurance Co. Ltd. the principles to attract Section 3 of the Workmen's Compensation Act have been stated as under in para 13:

"13. ... '22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn. case13 in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:

(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

(3) If the evidence brought on record establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the facts of each case.'"

The Madhya Pradesh High Court in Sundarbai v. Ordnance Factory Lab IC in para 10 has culled out the principles as under:

"10. On a review of the authorities, the principles insofar as relevant for our purposes may be stated as follows:

(A) 'Accident' means an untoward mishap which is not expected or designed by the workman. 'Injury' means physiological injury.

(B) 'Accident' and 'injury' are distinct in cases where accident is an event happening externally to a man; e.g. when a workman falls from a ladder and suffers injury. But accident may be an event happening internally to a man and in such cases 'accident' and 'injury' coincide. Such cases are illustrated by bursting of an aneurism, failure of heart and the like while the workman is doing his normal work.

(C) Physiological injury suffered by a workman due mainly to the progress of a disease unconnected with employment, may amount to an injury arising out of and in the course of employment if the work which the workman was doing at the time of the occurrence of the injury contributed to its occurrence.

(D) The connection between the injury and employment may be furnished by ordinary strain of ordinary work if the strain did in fact contribute to or accelerate or hasten the injury.

(E) The burden to prove the connection of employment with the injury is on the applicant, but he is entitled to succeed if on a balance of probabilities a reasonable man might hold that the more probable conclusion is that there was a connection."

Again in yet another celebrated decision of this Court in Ibrahim Mahmmed Issak4 this Court has set down the principles applied in such cases as under in para 5:

"5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words 'in the course of the employment' mean 'in the course of the work which the workman is employed to do and which is incidental to it'. The words 'arising out of employment' are understood to mean that 'during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe, the workman would not otherwise have suffered'. In other words there must be a causal relationship between the accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of the employment. The expression applies to employment as such-to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Railway Co. v. Highley, Lord Summer laid down the following test for determining whether an accident 'arose out of the employment'." (emphasis added)

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 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."

In the instant case also, the workman was a truck driver engaged to drive the truck for long distance and it was also proven by the claimant that he had been working under stressful working conditions and no evidence in rebuttal was produced by the employer or the Insurer. Thus, it is held that the workman died due to an accident during the course of employment as such, claimant was entitled to compensation under Employees' Compensation Act.

In view of law laid down by Hon'ble Apex Court in case of Param Lal Singh (Supra), this Court has no hesitation in holding that the death of the workman had occurred due to stress and strain suffered by him during the course of his

employment. In such view of the matter, learned Commissioner has rightly held that the claimant is entitled to compensation under Employees Compensation Act.

There is no dispute that Jasveer Singh was employed by Surjeet Singh as Driver to drive a heavy motor vehicle (Truck). There is no dispute that Jasveer Singh suffered heart attack while driving the Truck to Moradabad. The employer (Surjeet Singh), in his written statement, has admitted that the workman died during the course of employment.

In such view of the matter, the contention made on behalf of the appellant that Post Mortem Report/Medical Report was not produced before the Workmen Compensation Commissioner becomes irrelevant. Even otherwise also, there is evidence on record to show that workman was a healthy man of 48 years. On the fateful day, he was driving the Truck loaded with sand to Moradabad. His sudden death indicates that it was caused due to heart attack.

Claimant has filed a cross objection seeking enhancement of the amount of compensation from Rs.2,47,450/- to Rs.3,68,340/- along with interest @ 12% per annum. The said cross objection filed by the claimant has been treated as Cross Appeal.

Learned counsel for the claimant submits that in view of the admission made by the employer that the workman was paid Rs.4500/- per month as wages, there was no occasion to Workmen Compensation Commissioner to make guess work regarding wages of the workman. He further submits that the learned Commissioner erred in estimating his wages as Rs.3097/- per month. He further submits that driving a truck needs special skill, therefore, his wages should have been taken as Rs.6000/- per month in view of law laid down by Hon'ble Apex Court in the case of Minu Rout & another Vs Satya Pradyumna Mohapatra & others reported in 2013 (4) TAC 840 (S.C.). Para 13 and 14 of the said judgment are extracted below:-

"13. The appellants claimed compensation under the heading of loss of dependency as they were all dependents upon the earnings of the deceased Susil Rout. It is an undisputed fact that Susil Rout was working as a driver of the car which is a skilled job. Appellants have stated in the claim petition and in the evidence of PW-1 that the deceased was earning Rs.5,000/- per month. The oral evidence of PW-1 is not accepted by the Tribunal, solely for the reason that the appellants did not produce documentary evidence to prove the monthly salary of the deceased as Rs.5,000/- per month as claimed by them. However, it had taken monthly income of the deceased at Rs.3,000/-, for the purpose of determining the multiplicand. Out of Rs.3,000/-p.m., 1/3rd amount was deducted towards personal expenses of the deceased and arrived at Rs.3,84,000/- towards loss of dependency. Out of that compensation, 50% was deducted towards contributory negligence on the part of the deceased and Rs.1,92,000/- was awarded under the above heading. The compensation awarded by the Tribunal is approved by the High Court, which is not only erroneous in law but also suffers from error in law.

The Tribunal ought to have taken the salary of the deceased driver at Rs.6,000/- by taking judicial notice of the fact that the post of a driver is a skilled job. Though the claim of the appellants is Rs.5000/-as monthly salary of the deceased for the purpose of determining the loss of dependency, the actual entitlement of the salary of the deceased should have been taken at Rs.6000/- per month by the Tribunal for awarding just and reasonable compensation, which is the statutory duty of the Tribunal and the Appellate Court. In view of the law laid down by this Court in Santosh Devi vs. National Insurance Company Ltd. & Ors.[1]; 30% of future prospects of the deceased should be added to the monthly income. If 30% is added to the monthly income, it would amount to Rs.7,800/- p.m. From the same, 1/3rd should be deducted towards the personal expenses of the deceased, then the remaining amount would come to Rs.5,200/- per month. The same is multiplied by 12 amounting to Rs.62,400/-which would be the multiplicand. The same must be multiplied by 16 multiplier as the Tribunal has taken the age of the deceased at 35 as mentioned in the post mortem report, which is produced as Exh.5. According to the decision of this Court in Sarla Verma vs. Delhi Transport Corporation, the multiplier of 16 taken by the Tribunal for computation of loss of dependency is correct. If the 16 multiplier is applied to the multiplicand of Rs.62,400/-, it comes to Rs.9,98,400/- which amount is awarded towards the loss of dependency of the appellants. We have answered point No.1 in favour of the appellants holding that the finding recorded by the Tribunal that there was 50% contributory negligence of both the drivers of the offending truck and the deceased, is erroneous and further 50% deduction out of the total loss of dependency compensation determined by the Tribunal is not correct. Therefore, we have to hold that the appellants are entitled to the full amount of Rs.9,98,400/-. Further, the Tribunal has erroneously awarded a sum of Rs.5,000/- for funeral expenses without taking into consideration the actual amount required to be spent towards funeral expenses and obsequies ceremonies. The Tribunal has also inadequately awarded Rs.3,000/- towards loss of love and affection. The Tribunal also erred both on facts and in law as it has completely ignored the fact that the deceased died leaving behind him the first appellant-the widow, his mother and two minor children, who have lost the love and affection of their father. Therefore, this Court, after taking into consideration all the expenses incurred for the funeral and sudhi ceremonies and towards loss of love and affection by the surviving child and the first appellant wife, by applying the decision in the case of Kerala State Road Transport Corporation vs. Susamma Thomas[3], awards Rs.50,000/- which is just and reasonable under the conventional heads. If Rs.50,000/- is added to the compensation awarded for the loss of dependency, the total compensation comes to Rs.10,48,400/-. The Insurance Company is liable to pay the same as the offending vehicle is insured with it and the same is an undisputed fact. The Insurance Company is also liable to pay interest at the rate of 9% per annum, from the date of application till the date of payment in view of the decision of this Court in Municipal Council of Delhi vs. Association of Victims of Uphaar Tragedy.

Accordingly, we allow the appeal in the following terms:

I) The impugned judgments and awards of the Tribunal and the High Court are set aside.

II) We award Rs.10,48,400/ with 9% interest per annum payable from the date of filing the application till the date of payment.

III) The compensation awarded shall be apportioned between the appellants - Minu Rout and Sumit Kumar Rout, equally as the remaining appellants Ratnamani Rout and Rohit Kumar Rout died during the pendency of the proceedings and their names have been deleted by the High Court of Orissa on 22.8.2011.

IV) We direct the Insurance Company to deposit 50% of the awarded amount with proportionate interest in any of the Nationalized Bank of the choice of the appellants for a period of 3 years. During the said period, if they want to withdraw a portion or entire deposited amount for their personal or any other expenses, including development of their asset, then they are at liberty to file application before the Tribunal for release of the deposited amount, which may be considered by it and pass appropriate order in this regard. The rest of 50% amount awarded with proportionate interest shall be paid to the appellants by way of a demand draft within six weeks from the date of receipt of a copy of this order after deducting the amount if already paid."

Learned counsel for the claimant further submits that claimant's husband was a healthy man of 48 years and he had no medical history. He further submits that having regard to the facts on record, it can be safely inferred that the workman died due to stress and strain caused while working as driver. He further submits that the workman suffered heart attack while actually driving the truck, therefore, it can be safely inferred that death had occurred during the course of his employment.

Learned counsel for the claimant further submits that in view of the law laid down by Hon'ble Apex Court in the case of Pratap Narain Singh Deo Vs. Srinivas Sabata reported in (1976) 1 SCC 289, as reaffirmed in the case of Oriental Insurance Company Ltd. Vs. Siby George & others reported in (2012) 12 SCC 540, claimant was entitled to interest from the date of death of the workman and not from 16.11.2008 (one month after the death of the order) as directed by learned Commissioner.

A perusal of the order passed by Workmen Compensation Commissioner reveals that no documentary evidence was produced by the claimant or the employer to show that the workman was being paid Rs.4500/- per month as wages in addition to Rs.50 per day as diet money, therefore, the Commissioner estimated his wages as Rs.3097/- per month as per the provisions of Minimum Wages Act.

This Court does not find any infirmity in the determination made by learned Commissioner regarding wages of the deceased-workmen.

In his order dated 17.10.2008, learned Workmen Compensation Commissioner had directed the Insurer to deposit the amount of compensation (Rs.2,47,450/-) before him within a month failing which the amount would carry interest @ 12% per annum.

In view of the law laid down by Hon'ble Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Siby George & others reported in (2012) 12 SCC 540 employer's liability to pay compensation arose on the date of death of the workmen. Consequently, interest on the amount of compensation became due in view of default in payment of compensation.

In view of the aforesaid discussion, the following order is passed:-

(i) The appeal filed by the Insurance Company is dismissed. Employer as well as the Insurance Company would be liable to satisfy the claimant for compensation as awarded by learned Workman Compensation Commissioner, jointly and severally.

(ii) The Cross Appeal filed by the claimant is partly allowed. The order passed by Workman Compensation Commissioner is modified and it is provided that the claimant shall be entitled to interest as awarded by learned Commissioner, from the date of filing of the application before Workmen Compensation Commissioner. The difference in the amount of interest shall be deposited by the Insurance Company before the Commissioner within six weeks from today. On such deposit, the claimant would be at liberty to withdraw the same.