Oriental Insurance Company Limited vs Kiran Bala

Moksha Khajuria Kazmi, J

This Civil First Miscellaneous Appeal is directed against award/judgment dated 5th May, 2015 passed by the Commissioner under Employees" Compensation Act, 1923 (Assistant Labour Commissioner), Jammu (hereinafter to be referred as the Commissioner ) in file No.Death-16/EC Act/2011 titled Kiran Bala v. Smt. Sneh Lata and another, whereby an amount of Rs.7,90,257/- has been awarded as compensation, on account of death of deceased employee, namely, Bal Krishan, who died during the course of his employment with respondent No.2.

Factual Matrix

The brief facts, which led to the filing of present appeal are that respondent No.2 secured an Insurance Cover for Bus No. JK02AC-5775 vide Insurance Policy No.262203/31/2010/1983 for the period commencing from 00.00 hours on 8th March, 2010 to mid-night of 7th March, 2011. Husband of respondent No.1 has been engaged as driver for driving the aforestated vehicle NO.JK02AC/5775 on 1st December, 2010. On 3rd December, 2010, while the deceased-employee was going towards Budhal, Rajouri by driving the aforesaid bus, he suffered a heart attack when he reached at Fouwara Chowk, Akhnoor. The deceased was taken to government Hospital, Akhnoor where the doctors declared him as brought dead. Respondent No.1 preferred a claim petition seeking compensation in terms of the provisions of the Employees" Compensation Act, 1923 being dependent of the deceased-Bal Krishan, who stated to have died in and during the course of his employment of respondent No.2.

On being put on notice, appellant as well as respondent No.2 appeared before the Commissioner and filed their counters. It has been stated that the death of the deceased being a natural one and not on account of an accident, claim petition was not maintainable. As per respondent No.2, the deceased was not her employee and had been given a contract for driving the vehicle in question for one day. However, insurance of the vehicle with the appellant was admitted by respondent No.2. The appellant resisted the claim of respondent No.1 on various grounds viz. driver of the vehicle was not holding a valid and effective driving license and that the vehicle was being driven in contravention to the terms and conditions of the insurance policy as well as Motor Vehicle Act, however, it was admitted that the vehicle in question was insured with the appellant and on the date of alleged accident, the insurance policy was in existence.

On the basis of the pleadings of the parties, the Commissioner framed the following issues for determination:

i) Whether the deceased Bal Krishan falls within the definition of employee as prescribed under the Employees Compensation Act 1923? OPP

ii) What was the age and wages of deceased at the time of accident? OPP

iii) Whether the deceased met with an accident arising out of an during the course of his employment for respondent No.1? OPP

iv) Whether respondent No.2, in terms of the Insurance Policy, is liable to indemnify respondent No.1 for his liabilities or not? OPR-2

v) Relief.

In order to substantiate her claim, besides appearing herself in the witness box, respondent No.1 examined Dr. Parveen Jyoti and Ranjeet Kumar alongside placing on record duly sworn affidavits containing recorded statements of Sh. Vinod Kumar Sawhney and Mangat Ram Chadha, who were duly cross-examined before the Commissioner. Respondent No.2 submitted an affidavit containing recorded statement but had not appeared to face the test of cross-examination. The appellant did not adduce any evidence. In this way the evidence produced by respondent No.1 remained unrebutted.

The Commissioner, after evaluating the evidence adduced before it and considering the claim of respondent No.1, held her entitled to compensation to the tune of Rs.5,98,680/- along with interest of Rs.1,91,577/- (total Rs.7,90,257). The compensation was directed to be paid within 30 days, failing which interest @ 12% would be chargeable. It is against this award of compensation, the appellant-Insurance Company is before this Court.

Learned counsel appearing for the appellant-Insurance Company assails the award of the Commissioner on the ground that the Commissioner has not appreciated the law and facts of the case in its proper perspective and the conclusions drawn are erroneous. She would argue that in absence of the autopsy conducted on the dead body of the deceased, there cannot be any definite opinion as to the cause of death. It has been submitted that deceased died of a natural death, not due to any accident during and out of the employment of respondent No.2.

Per contra, learned counsel for respondent No.1 submits that she is a destitute and has lost the only bread earner of the family but till date nothing has been paid to her. It is stated that the deceased, driver by profession, was under the employment of respondent No.2, when he suffered a heart attack due to the stress and strain of the job. It is further stated that claimant/respondent No.1 has substantiated her claim by adducing sufficient evidence before the Commissioner, which evidence remained un-rebutted as the appellant has not proved any evidence in rebuttal, as such, appeal deserves to be set aside.

Heard learned counsel for the parties and perused the material available on record.

Perusal of the record shows that at the time of death of the deceased, he was driving the vehicle i.e. bus, owned by respondent No.2. The only point raised by respondent No.2 in the objections filed before the Commissioner was that the deceased was engaged only for a single trip. Insofar as the stand taken by the respondent No.2 before the Commissioner is concerned, suffice it to say that even a substitute driver for two or three days would be a workman under Section 2(1)(n) of the Employees Compensation Act (See K. Saraswathi v. S. Narayanawamy and others, 1985 ACJ 38).

A Division Bench of the Kerala High Court in the case of Trivandrum Port and Headload Workers Co-operative Society v. Dhaneshkumar, 2001 (1) ACC 422, has held that even if there is no employer-employee relationship with the principal employer, a substitute will be workman if he is engaged for the service of the principal employer. The relevant extract of the judgment is reproduced hereunder:

From the above decisions, the legal position that clearly emerges is that if one is a workman, it does not matter whether he is a substitute, even if he has no direct relation with the principal employer. In other words, even if there is no employer-employee relationship with the principal employer, a substitute will be a workman if he is engaged for the service of the principal employer and he is occupied in the performance of work or duties for the principal employer or if he is retained for the service of the principal employer. What is of paramount importance is whether the person is engaged for the purposes of the trade or business of the principal employer. Such a person can even be a casual employee, as has been settled by a catena of decisions of this Court in Kochu Velu v. Joseph, 1980-II-LLJ-220 (Ker-DB), Kochappan v. Krishnan 1987-II-LLJ-174 (Ker-DB) and Kerala Balagram v. Kochumon 1998-I-LLJ-744 (Ker-DB) which was a judgment delivered by one of us (ABDUL GAFOOR, J.). The crux of all those decisions is seen in the words of K.T. THOMAS, J. (as he then was) in the Bench decision in Moideen v. Gopalan, 1996-I-LLJ-1027 at 1028 (Ker-DB) :

"7. Even assuming that claimant's employment on that day was of a casual nature, that by itself is not enough to push him out of the ambit of the definition of the workman. If a person has to be ousted out of the contours of the definition, the casual nature of his engagement must couple with the succeeding postulate in the definition that such employment should not be for the trade or business of the employer. The word "and" used in the definition is for the conjunction of the two postulates together in one person. No interpretation to make the two postulates disjunctive is warranted in the context."

Insofar as contention raised by the learned counsel for the appellant that the death of the deceased being a natural death and not due to any accident, as such cannot be held to be occurred during the course of employment and out of the employment is concerned, it would be appropriate to notice the observation of the Supreme Court in the case of Param Pal Singh v. National Insurance Co. Ltd. and another, (2013) 3 SCC 409, which reads thus: -

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 present case the, Cleaner of the bus had proved that the deceased was under the employment of respondent No.2 at the time of accident. Admittedly, there was no postmortem, which could indicate the exact cause of death. However, the doctor, who appeared as witness before the Commissioner in his statement has stated that seeing the age of the deceased and sedentary nature of his job, the probable cause of death might have been cardiac arrest. According to the doctor, passengers in the bus told her that the deceased complained of chest pain few minutes before his death.

The employment of the deceased under respondent No.2 was proved. There is also no denial to the fact that the decease died during employment. Keeping in view the ratio of the judgment in Param Pal Singh (supra), the stroke suffered by the deceased can be said to be an accident, occurred while in employment. Therefore, the evidence produced before the Commissioner established causal connection between the death and employment. Further the Employees Compensation Act is welfare legislation and its primary purport and intent is to provide financial protection and social security to workers and if we non suit dependant of a workman/employee on mere technicalities it would be against the real purpose and object of the Act.

For all what has been discussed above, the appeal is found to be without any merit as no question of law, much less a substantial question of law arises for determination in this appeal. The appeal is, accordingly, dismissed. Record be sent back.