United India Insurance Ltd. vs Maman Singh and Others

Atul Kumar Jain, J.—In this Civil Misc. Appeal the appellant United India Insurance Company has challenged the award dated 31.07.2013 passed by the Commissioner Employee''s Compensation Act, 1923, Jaipur District-II in WCC/F/28/2011 titled as Maman Singh v. M/s. Rajasthan, Gujarat, TPT Company and Ors.

By the impugned award the commissioner has ordered the appellant to pay a compensation of Rs. 5,96,503/- to respondent Nos. 1 and 2 (the claimants) and it was also ordered by the Commissioner that on this amount 12% simple annual interest will also be payable by the appellant from 4.11.2010 to the date of payment and in addition, an amount of Rs. 5,000/- as funeral expenses was also ordered by the Commissioner against the appellant in favour of the claimants.

In this appeal, it has been argued by the appellant that no accident had occurred with the injured vehicle. This argument does not raise a substantial question of law, hence, this argument is not tenable before this court.

It has further been argued that it has not been proved that death of the ''workman'' has arisen out of and in the course of employment on the insured vehicle, it has been argued that there was no causal connection and nexus between death of the ''workman'' and use of the vehicle. It was also argued that it was a normal death because of enlarged liver which occurred due to excessive intake of alcohol by the ''workman''. In this regard, appellant relies upon the following rulings:--

"1. Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and Another, (2007) ACJ 1 : AIR 2007 SC 248 : (2007) 112 FLR 203 : (2007) 1 JT 15 : (2006) 11 SCALE 609 : (2007) 11 SCC 668 : (2006) 8 SCR 939 Supp this was a case under Workmen''s Compensation Act, 1923, workman was at work and he died because of Cardiac arrest. It was held by the Apex Court that only because a person dies of Heart attack, the same does not give rise to automatic presumption that the same was caused by way of accident. No legal fiction can be raised. Therefore, it was further held that circumstances must be shown to exist that the death caused by reason of Cardiac arrest was because of stress and strain of work."

It was further held that medical opinion would be relevant and each case has to be considered on its own facts and no hard and fast rule can be laid down therefore. It was held that unless evidence is brought on record to establish that death by way of Cardiac Arrest was because of stress and strain of work, the Commissioner would have no jurisdiction to grant damages.

"2. Malikarjuna G. Hiremath Vs. The Branch Manager, The Oriental Insurance Co. Ltd. and Another, (2009) ACJ 721 : AIR 2009 SC 2019 : (2009) 121 FLR 216 : (2009) 2 JT 396 : (2009) 2 LLJ 305 : (2009) 3 SCALE 210 : (2009) 13 SCC 405 : (2009) 2 SCR 320 : (2009) 3 SLJ 122 : (2009) 2 UJ 708 : (2009) AIRSCW 1688 : (2009) 2 Supreme 169 This was a case in which claim was filed by the LR''s of deceased workman under W.C. Act, 1923. In this case, driver had taken passengers to a temple as was ordered by the owner of the vehicle, on reaching the destination driver slipped in to a water pond and drowned; resulting in his death. High Court held that insurer of the vehicle is not liable but owner is liable for compensation but the Apex Court held that facts were not sufficient to fasten law on either insurer or the insured. It was held by the Apex Court that there was no causal connection and so the Insurance Company as well as the owner of the vehicle were not liable to compensate."

Section 3(1) of the Act which is relevant for the purpose of this case reads as follows:

"3. Employer''s liability for compensation-(1) If personal injury is caused to a workman 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)in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;

(b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to-

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.

Under Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies [a natural death because] of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer.

But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable."

''...Nothing could be simpler than the words "arising out of and in the course of the employment". It is clear that there are two conditions to be fulfilled. What arises "in the course" of the employment is to be distinguished from that arises "out of the employment". The former words relate to time conditioned by reference to the man''s service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment-that is, directly or indirectly engaged on what he is employed to do-gives a claim to compensation, unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified."

Thus the principles settled by different Rulings are as follows:--

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

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

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.

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.''"

(3) Mamtaj Bi Bapusab Nadaf and Others Vs. United India Insurance CO. and Others, (2010) 127 FLR 660 : (2010) 4 LLJ 614 : (2011) 161 PLR 125 : (2010) 10 SCC 536 : (2011) 2 SCC(Cri) 189 : (2010) 10 SCR 996 . In this case it was held that if at the time of the accident the vehicle was not in operation and was not involved in the accident and there was no probability of direct connection of death of the ''workman'' with the vehicle then the insurer and the owner will not be liable to pay compensation."

On the other hand, respondents/claimants have relied upon the following rullings:--

"(i) Dulcina Fernandes and Others Vs. Joaquim Xavier Cruz and Another, (2013) 4 ACC 293 : (2013) ACJ 2712 : (2013) 10 AD 513 : AIR 2014 SC 58 : (2013) 13 JT 217 : (2013) 4 RCR(Civil) 751 : (2013) 12 SCALE 611 : (2013) 10 SCC 646 . This was a case of claim under Motor Vehicle Act 1988 and so this case is not much relevant for deciding the controversy of the present case.

(2) Manju Sarkar Vs. Mabish Miah, (2014) 3 ACC 451 : (2014) ACJ 1927 : (2014) 8 SCALE 221 . In this case rule of Notional Extension of Employment was elaborated by Hon''ble Apex Court. It was held that the employment does not necessarily end when the "down tool" signal is given or when the ''workman'' leaves the work shop actually. It was further held that an employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and egress to and fro a place of employment.

(3) Mst. Param Pal Singh through Father Vs. National Insurance Company and Another, (2013) 1 ACC 637 : (2013) ACJ 526 : (2013) 1 AD 610 : AIR 2013 SC 974 : (2013) 116 CLT 65 : (2013) 137 FLR 1 : (2013) 136 FLR 848 : (2013) 1 JT 140 : (2013) 1 LLJ 520 : (2013) 1 LLN 32 : (2013) 2 RCR(Civil) 480 : (2012) 12 SCALE 566 : (2013) 3 SCC 409 : (2013) 2 SCT 604 : (2013) AIRSCW 283 .- In this case the High Court dismissed the claim under Workmen''s Compensation Act, 1923 on the ground that death of the driver was because of natural causes but the Apex Court held that the long driving undergone by ''workman'' gave him grave strain and so the death of the driver was held to be in the course of and arising out of employment and so the compensation was awarded to the LR''s of the deceased driver and so the order of the Commissioner Workmen''s Compensation Act was restored and that of High Court was set aside."

In the case in hand AW 1 Maman Singh was examined on behalf of the claimants he specifically denies that his son Mahendra was having any previous disease. He says that his son died while being in the employment of respondent No. 3. Similarly AW2 Manoj Kumar also states that he was driving vehicle No. HR 38 M 5065 on the date of the incident and Mahendra Singh was Khalasi on that truck. He says that on 05.10.2010 near Molahera Khalasi Mahendra started vomiting and immediately he was taken to the BDM hospital where he was declared dead. Report No. 37/2010 was lodged at P.S. Kotputli under Section 174 Cr.P.C.

On the other hand appellant relies upon the postmortem report Ex. 2 in the case. It has been argued on behalf of the Insurance Company that as per the PMR liver of the deceased was enlarged and congested. His Gallbladder was also found enlarged and over-distended.

Thus it has been argued that he must have been died because of intake of alcohol. Cause of death has not been mentioned in PMR and medical board has opined that cause of death will be given after the Histopathalogical FSL Report from SMS hospital, Jaipur and FSL Jaipur will be received.

In the circumstances of the case, it can be said that accident had not arisen out of the employment though it had occurred in the course of the employment of khalasi Mahendra Singh and so the employer or the Insurance Company cannot be made liable to pay any compensation to the LR''s of the Mahendra Singh. Logical reason given in Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and Another, (2007) ACJ 1 : AIR 2007 SC 248 : (2007) 112 FLR 203 : (2007) 1 JT 15 : (2006) 11 SCALE 609 : (2007) 11 SCC 668 : (2006) 8 SCR 939 Supp perfectly applies to the case and I am of the firm opinion that the death was not caused by stress and strain of the work and hence the award passed by the Commissioner (WC Act), Jaipur District-II in WCC/F/88/2011 titled as Maman Singh v. M/s. Raj Gurjar TPT Company and Ors. deserves to be quashed which is hereby quashed and set aside.

Appeal of the Insurance Company as well as the stay application stand disposed of accordingly.