The Branch Manager, United India Insurance Co. Ltd. vs Jeteppa and Others

S. Sujatha, J.—1. Though this matter is posted for admission, with the consent of the learned counsel appearing for the parties, matter is taken up for final disposal.

The appellant/insurer is before this Court in appeal challenging the award passed by the Commissioner for Workmen''s Compensation awarding compensation of Rs. 3,45,040/- together with interest.

The facts in brief are:-

"that respondents, children of deceased driver Sri Shivappa Hatti filed a claim petition in WCA/SR-354/2007 before the Workmen''s Compensation Court, Bijapur claiming that on 6/7-5-2007 when Sri Shivapa Hatti, was working as a driver in vehicle bearing Regn. No. KA-25/A-7403, developed heart problem and got himself admitted to a Government hospital at Nidagundi enroute Bangalore - Guledagudda and died on 7.5.2007 due to heart attack, the resultant effect of stress and strain suffered by the deceased whilst on duty. The claimant No. 1 has examined himself as AW1 and the cleaner of the bus as AW2 and got marked exhibits Ex. 1 to Ex. 6. The insurer has examined Sri Manjunatha Swamy as RW1 and Ex. R.(2)(1) - insurance policy is marked. The Commissioner after extensively examining the materials placed on record by both the parties, had come to a conclusion that the death of the deceased occurred during the course of employment i.e., whilst driving the bus from Bangalore to Guledagudda and accordingly, awarded compensation of Rs. 3,45,040/- with interest thereon at 7 1/2% from 3.11.2007 to 31.12.2009 and 12% from the date of the order till the date of payment. This order is impugned in this appeal."

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

Learned counsel Sri Shivanand Patil, appearing for the appellant vehemently contended that the fact, the driver was driving the vehicle/bus on 6/7-5-2007 from Bangalore to Guledagudda is not proved by the claimants. Learned counsel placing reliance on Annexure 3 would contend that the employer of the deceased himself, while replying to the notice issued by the claimants had denied the relationship of employer and employee between the deceased and the employer and more particularly, it was contended by the employer that the deceased was not on duty on 6/7.5.2007 as the driver and for the death of the driver that occurred on 7.5.2007 at Government Hospital, Nidagundi, the employer is in no way responsible for making any payment of compensation. Such being the factual position, the Labour Commissioner failed to appreciate the said crucial evidence and fastened the liability on the insurer only for the reason that the vehicle was covered with an insurance policy as on the date of death of the incident which is wholly unjustifiable and accordingly, he seeks to set-aside the order passed by the Labour Commissioner.

On the other hand, learned counsel appearing for respondents placing reliance on Annexure 5 - the driver''s advance sheet issued by the employer of the deceased would contend that the deceased was driving the vehicle/bus on 6/7-5-2007 and it was during the course of employment, he developed sudden heart problem and was compelled to entrust the vehicle to a co-driver and got admitted in the hospital at Nidagundi where he succumbed to the heart problem which accrued during the course of employment and died on 7.5.2007. The heart problem was caused due to the stress and strain suffered by him during the course of employment. Considering all these vital aspects, the Labour Commissioner has awarded compensation, fixing the liability on the insurer which is justifiable and does not call for any interference by this Court.

Having heard learned counsel appearing for the parties and perusing the material on record, the main question of law which requires to be considered by this Court in this appeal would be, "Whether the deceased was driving the vehicle/bus on 6/7.5.2007 from Bangalore to Guledagudda and died during the course of employment on 7.5.2007 as a result of chest pain developed while driving the vehicle and the Commissioner is justified in awarding the compensation?"

I have examined two crucial documents i.e., Annexures 3 and 5 which are relied upon by both the parties. Annexure 3 though is a reply given by the employer to the notice denying the contention of the claimants that the deceased was driving the vehicle on 6/7-5-2007. The objections filed by the employer before the Labour Commissioner clearly states that the deceased was working as a driver under the employer and the vehicle which the deceased was driving was covered under the insurance which was in effect and as such, the insurer is liable to make the compensation if any, and no liability could be fastened on the employer. Annexure - 5 is the driver''s advance sheet wherein, it is clearly mentioned that the said driver who died in the course of employment was paid the trip advance to drive the vehicle from Bangalore to Guledagudda and the same is not denied by the employer neither in his reply under Annexure 3 nor any evidence is adduced to that effect. In such circumstances, the insurer cannot be absolved from the liability of indemnifying the owner, more particularly, when the vehicle was covered under the insurance policy. The doctor''s report submitted by the claimants also supports the case of the claimants coupled with the evidence of the cleaner(AW2) who has deposed that he was on duty on the fateful day whilst the bus was moving from Bangalore to Guledagudda and wherein, the deceased was driving the vehicle/bus and in view of the sudden heart problem developed, the vehicle was handed-over to co-driver and deceased got admitted to the Government hospital at Nidagundi. No cogent evidence/material is placed by the appellant to discard this evidence. The material aspects on record clearly indicates that the deceased driver was on duty and he died in the course of employment which cannot be overlooked only for the reason that the employer at the first instance has vaguely denied such averments made by the claimants and no benefit would be taken by the insurer from such evasive reply said to have been given by the employer which is not further corroborated by any oral or documentary evidence.

As regards awarding of compensation, an identical issue was before this Court in the case of Manager, National Insurance Company Limited, Gulbarga v. Mahabooba Bi and Others (, 2008 (2) KCCR 1264) and also in the case of The Oriental Insurance Co. Ltd. v. P. Lalitha (2010 Kant. M.A.C. 518 (Kant)). This Court in such circumstances, held that the driver of the vehicle developed chest pain while driving the vehicle and died of heart attack would be a case falling in the course of employment and there was a nexus between the death and employment. The Labour Commissioner following the Judgment of this Court in the case of Mahabooba Bi (supra) has awarded compensation which cannot be found fault with. In the given circumstances, I answer the question of law in favour of the claimants and against the appellant.

Accordingly, the appeal filed by the insurer lacks merit and is dismissed. The amount in deposit, if any, shall be transmitted to the jurisdictional Tribunal and the claimants are at liberty to withdraw the same.