Resham Kunwarbai and Others vs Madanlal and Another

N.K. Mody, J.—Being aggrieved by the order dated 21.2.2008 passed by Commissioner for Workmen''s Compensation, Labour Court, Mandsaur in Case No. 8/WC Fatal/2006 whereby the claim case filed by the appellants was allowed and awarded compensation of Rs. 4,00,000 on account of death of Viramsingh alias Vikramsingh along with interest at the rate of 12 per cent per annum w.e.f. 21.2.2008 and penalty at the rate of 50 per cent, present appeal has been filed. Short facts of the case are that the appellants are the legal representatives of deceased Viramsingh alias Vikramsingh who filed claim case before learned court below alleging that bus bearing registration No. MP 44-0141 was owned by respondent No. 1 and insured with respondent No. 2 at the relevant time. It was alleged that deceased was driver on bus and getting salary of Rs. 4,000 per month. It was alleged that on 20.2.2006 at about 7 a.m. when the deceased was to go on the said bus from Neemuch to Bhawanimandi there was a mechanical fault in the bus. It was alleged that for the purpose of repairing he lay down below the bus, at that time, other mechanic was trying to get the vehicle started. It was alleged that at that time all of a sudden deceased felt chest pain, he was taken to Choudhary Nursing Home, Neemuch, where he was declared dead. It was alleged that upon the intimation criminal case was registered and in the post-mortem it was found that the cause of death was cardiac arrest. It was alleged that deceased was in the employment of respondent No. 1 and the offending vehicle was insured with respondent No. 2 and death was caused during the course of employment due to strenuous work, therefore, appellants are entitled for compensation. The claim case was contested by the respondent No. 2 on various grounds including on the ground that no case is made out for which appellants are entitled for compensation. It was alleged that no intimation was given to the respondent No. 2 by the respondent No. 1 about the occurrence of accident. It was prayed that the claim case be dismissed. After framing of issues and recording of evidence learned court below found that the accident occurred during the course of employment in which Viramsingh died. It was also held that the respondent No. 1 is liable for payment of compensation. So far as respondent No. 2 is concerned, learned court below found that cause of death was not excessive stress, therefore, respondent No. 2 is exonerated. Being aggrieved by this part of the order whereby respondent No. 2 was exonerated, present appeal has been filed.

Learned counsel for the appellants argued at length and submits that impugned order whereby respondent No. 2 has been exonerated is illegal, incorrect and deserves to be set aside. It is submitted that since once learned court below has come to the conclusion that the deceased was in the employment of respondent No. 1 and the accident occurred during the course of employment, therefore, there was no justification on the part of learned court below to exonerate the respondent No. 2. It is submitted that the learned court below has placed reliance on a decision in the matter of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali, 2007 ACJ 1 (SC) and Jyothi Ademma v. Plant Engineer, Nellore Thermal Station, 2006 ACJ 2165 (SC). It is submitted that both the cases are quite distinguishable. Learned counsel placed reliance on a decision of this court in the matter of Oriental Insurance Co. Ltd. v. Heerabai 2009 ACJ 147 (MP), wherein driver of Tempo died when Tempo was parked at the site of mine from where murram was to be loaded and he was digging the mine along with other labourers when the accident occurred, it was held that accident occurred in the course of employment. Further reliance is placed on a decision in State of Rajasthan v. Ram Prasad, 2001 ACJ 647 (SC), wherein death of a workwoman due to lightning and the contention that lightning is an act of God and it has no connection with employment, Hon''ble Apex Court held that the death arose out of and in the course of employment and the heirs of the workwoman are entitled to compensation. It was further observed that workwoman was working on the site and she would not have been exposed to the hazard of lightning striking her had she not been working there. It is submitted that in the facts and circumstances of the case, learned court below committed error in exonerating respondent No. 2. It is submitted that the appeal be allowed and part of the award whereby respondent No. 2 has been exonerated be set aside.

Learned counsel for the respondent No. 2 submits that after due appreciation of evidence learned court below found that since there was no excessive stress, therefore, the respondent No. 2 cannot be held liable for payment of compensation. It is submitted that apart from this, even if it is assumed that it was found that the deceased was driver and was in employment of respondent No. 1, then too, since the incident is having no causal connection with the employment, therefore, the learned court below committed no error in exonerating the respondent No. 2. It is submitted that appeal be dismissed.

From perusal of record, it appears that to prove the case appellants filed the documents Exhs. P1 to P15 which includes the driving licence of the deceased. Apart from this, appellants have examined wife of deceased as PW 1 and Jitendra Kumar PW 2, while respondent No. 2 examined Vedprakash as DW 1. He has submitted the policy and also admitted that he has covered the risk of employee. He has further stated that there is no causal connection of death of the deceased. In the matter of Jyothi Ademma v. Plant Engineer, Nellore Thermal Station, 2006 ACJ 2165 (SC), workman died at workplace and job of the deceased was only to switch on or off and doctor opined that there was no scope of any stress or strain in his duties and evidence was to the effect that workman was suffering from chest disease and receiving treatment prior to his death at workplace, therefore, it was held that death was not out of and in the course of employment. In the matter of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali, 2007 ACJ 1 (SC), cleaner while alighting from the vehicle suddenly developed chest pain, was taken to hospital where he was declared dead, autopsy was conducted and doctor opined that cause of death was cardiac arrest due to rupture aortic aneurysm. Since there was no allegation in the claim petition nor any evidence produced that deceased met with his death by reason of any stress or strain, Hon''ble Apex Court held that in absence of any evidence or the fact that the job of cleaner was strenuous and he was merely getting down from the vehicle and there is no evidence of any causal connection between accident and injury, no compensation can be awarded.

After taking into consideration all the facts and circumstances of the case and keeping in view the evidence adduced by the appellants, it was found proved by the learned court below that accident occurred when the deceased was working on the bus which was having mechanical fault, this court is of the opinion that learned court below committed an error in holding that since the accident was having no causal connection with the employment, therefore, respondent No. 2 is exonerated. Apart from this when the learned court below held that the respondent No. 1 is liable for payment of compensation, then there was no justification on the part of learned court below to exonerate respondent No. 2. Un-disputedly offending vehicle was insured with the respondent No. 2 and respondent No. 2 has to indemnify the liabilities of respondent No. 1, therefore, respondent No. 2 is liable for payment of compensation. Thus, the substantial question of law is answered in favour of the appellant. So far as amount of compensation is concerned, no reason has been assigned by the learned court below how the amount of compensation has been assessed. Similarly, there is nothing in the order from where it can be shown that learned court below has taken into consideration evidence adduced by the appellants about the income of the deceased. In view of this, appeal filed by the appellants is allowed and the finding recorded by learned court below whereby respondent No. 2 is exonerated is set aside holding that respondent No. 2 shall also be liable for payment of compensation jointly and severally along with respondent No. 1. So far as interest is concerned, interest shall be payable at the rate of 7.5 per cent per annum from the date of accident after adjudication at the rate of 12 per cent per annum after lapse of 30 days from the date of adjudication. However, since the amount of compensation awarded by the learned court below has been assessed without giving any reason, therefore, the case is remanded back for limited purpose to reassess the amount of compensation on the basis of evidence on record. Parties are directed to remain present before the learned court below on 12.9.2011. With aforesaid observations, appeal stands disposed of. C.C. as per rules.