THE HON'BLE SRI JUSTICE VUTUKURU SRINIVAS
CIVIL MISCELLANEOUS APPEAL No.959 of 2009
JUDGMENT:
This Civil Miscellaneous Appeal is directed against the order of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Dharmavaram (hereinafter called as 'the Commissioner') in W.C.No.41 of 2005 dated 04.06.2009.
2. The insurer of the lorry bearing No.KA 01 D 1249 belonging to the 1st respondent herein is the appellant. The respondent Nos.1 and 2 herein are the parents and respondent Nos.3 and 4 are unmarried brother and sister of the deceased.
3. According to the respondent Nos.1 to 4/applicants, in the application before the Commissioner for Workmen's Compensation at Dharmavaram, the deceased was working as driver under the 5 th respondent herein on monthly wages of Rs.4,500/- p.m. On 20.10.2003, the deceased was informed the applicants that he was attending the duty from Bangalore to Nagpur with load. While so, on 24.10.2003, when the lorry reached near Nagpur, suddenly the deceased stopped the lorry as severe chest pain started. Then the cleaner shifted him to Medical College Hospital, Nagpur and later he was died. As the deceased died during the course of 2 employment, the applicants filed application under W.C. claiming compensation.
4. The respondent Nos.5 to 7 herein set ex parte.
5. Counter was filed by the insurer/appellant denying the liability stating that there is no employer and employee relationship; and that the deceased was not died during the course of employment; and that the vehicle was not insured with the appellant; and that the risk was not covered as no premium was paid for the coverage of paid driver and prays to dismiss the application.
6. The Commissioner settled the following issues for enquiry basing on the material:
1.Whether the deceased was a work man as per the provisions of W.C.Act 1923 and he died arising out of and in the course of his employment?
2. Who are liable to pay compensation?
3. To what relief?
7. In the course of enquiry, AW.1 and AW.2 were examined and Exs.A.1 to A.8 were marked. On behalf of the appellant/insurer, R.W.1 and R.W.2 were examined and Exs.B.1 to B.7 were marked. 3
8. On the material, the Commissioner held that the workman (driver) was died during and in the course of employment while discharging his duties for the benefit of respondent No.5 herein and as the policy was in force, at the time of accident, directed the appellant and respondent No.5 herein to deposit the compensation amount of Rs.3,65,290/- with interest 12% per annum from the date of death i.e., 25.10.2003 to till the date of realization of the compensation amount besides stamp duty Rs.731/-, by way of demand draft drawn in favour of Commissioner for Workmen's Compensation and Joint Commissioner of Labour, Kurnool, within thirty days from the date of receipt of this order and their liability is joint and several and further ordered that if they fails to deposit the compensation amount within the stipulated time, they shall be liable to pay penalty under Section 4(A)3 of the Act.
9. It is against the said order, this Civil Miscellaneous Appeal is preferred by the insurer.
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10. Heard Sri Naresh Byrapaneni, learned counsel for the appellant and Sri M.Karibasaiah, learned counsel for respondent Nos.1 to 4.
11. Now, the following points arise for determination:
1. Whether there is any employer and employee relationship between insured and deceased, if so whether the order of the Commissioner is correct ?
2. Whether the death of deceased can be called as expected or designed event and not during and in the course of employment ?
3. Whether the order of the Commissioner is correct in making the appellant liable to pay compensation ?
4. Whether the insurer is liable to pay interest from the date of death of the deceased @ 12% per annum ?
5. To what relief ?
12. POINT No.1:
In order to decide the employer and employee relationship, the fact to be noticed is that the deceased L.Ershad Ahamad worked as a driver on lorry bearing No.KA 01 D 1249 under the employment of the 5th respondent herein and getting monthly wages of Rs.4,500/- and the same was noticed through the 5 evidence of A.W.2 by name S.Shafi, said to be cleaner of the lorry as on the date of the accident that on 20.10.2003 that himself and L.Ershad Ahamad (deceased) proceeding from Bangalore to Nagpur with load and on 24.10.2003, when the lorry reached near Nagpur, the deceased stopped the lorry and intimated him that he is suffering from chest pain, immediately he was shifted to Medical College Hospital, Nagpur and on 25.10.2003, the doctors intimated that he died due to continuous driving, tiredness and it is caused due to chest pain and cardiacarrest. As can be seen from Ex.A.1 Post Mortem Report, which is placed on record before the Commissioner for Workmen's Compensation, the deceased died due to cardiacarrest and the same is not disputed by the insurer/appellant.
13. Admittedly the deceased was working as driver and that he driven the lorry from Bangalore to Nagpur with a load and at the outskirts of Nagpur on 24.10.2003, the deceased stopped the said lorry and intimated to A.W.2 about his chest pain and immediately he got admitted the deceased in Medical College Hospital at Nagpur. No contra evidence was placed before the Commissioner 6 to say that the deceased was not under the employment of the 5 th respondent/insured. In view of not placing any rebuttal evidence regarding employer and employee relationship, the Commissioner for Workmen's Compensation found that there is employer and employee relationship and when the facts placed before the Commissioner under Workmen's Compensation, which are proved in accordance with law beyond doubt and burden on the appellant/insurer not discharged by disproving the evidence placed by the applicants before the Commissioner. Thereby, their plea that there is no employer and employee relationship is not proved. More so, the pleadings are supported by oral evidence along with legal notice placed before the authority i.e., the Commissioner for Workmen's Compensation. No iota of material is placed on record before this Court to discard the findings of the Commissioner.
14. Now coming to the other point that the order of the Commissioner is correct, in view of establishing fact of employer and employee relationship without any rebuttal evidence placed before the Commissioner, the findings given by the Commissioner cannot be disturbed while sitting in appeal. Thus, this appoint is 7 answered in favour of respondent Nos.1 to 4 and against the appellant herein.
15. POINT No.2:
So far as this aspect is concerned, the factum of filing of documents before the Commissioner by marking Post Mortem Examination Report, Death Extract, Death Certificate issued by Nagpur Medical College Hospital as Exs.A.2 to A.4 and the same are relating to the death of the deceased were produced before the Commissioner for Workmen's Compensation.
16. Regarding chest pain and death of the deceased is concerned, the facts stated by A.W.2 referred supra clearly goes to show that the chest pain as well death cannot be termed as expected or designed event inorder to say there was any contribution on the part of the deceased workmen. In the similar circumstances, in a case between Union of India, represented by Divisional Manager South Central Railway, Vijayawada and others v. S.Mariyamma1, wherein also the deceased workmen working as a Gateman in Railways, went to Rajahmundry to 1 2004 SCC Online AP 420 8 undergo training. He attended the training class on 18.04.2000 from 09.00 A.M. to 12.00 P.M. and again 02.00 P.M. to 05.00 P.M. and at about 10.00 P.M. while he was in the premises attached to the training school sustained severe chest pain due to stress and strain, where there was no boarding facility provided by the South Central Railway one cotrainee took the deceased to hospital, where he succumbed due to chest pain. In such circumstances, the South Central Railway refuted the claim, as the death is not during the course of employment, but this Court categorically found that the said incident is an accident as contemplated under Section 3 of the Workmen's Compensation Act. Even on that score also the death of the deceased can be taken as during the course of employment, as there is no evidence that the deceased was having earlier history of heart stroke or cardiac related issues placed on record by the insurance company. Thereby this Court found the order passed by the Commissioner is well articulated and reasoned in giving finding that the death was occurred during and in the course of employment. Thus, this appoint is answered in favour of respondent Nos.1 to 4/applicants and against the appellant herein. 9
17. POINT No.3:
The undisputed fact is that the lorry was validly insured with the insurance company/appellant. Therefore, the liability to pay compensation held by the Commissioner cannot be questioned. Besides that it is a settled law that the vehicle in question is insured with the insurance company and it is liable to pay compensation and the same is rendered by the High Court of Uttarakhand in between National Insurance Company v. Bhadi Devi2. Even otherwise as per Sections 94 and 95 of the Motor Vehicles Act, it is compulsory that all the vehicles should be insured. Thus, this appoint is answered in favour of respondent Nos.1 to 4/applicants and against the appellant herein.
18. POINT No.4:
So far as the interest is concerned, in a recent judgment of the Hon'ble Supreme Court between Sobhan and Ors. v. The Chairman, Vithalrao Shinde Sahakari Sakhar Karkhana Ltd., and Ors.3 at paragraph No.7 it was held that :
2 2007 SCC Online 80 3 2022 SCC Online 308 10 .......from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due can be ordered...........
19. In the present case, the Commissioner for Workmen's Compensation in his order held that the respondent No.5 and appellant herein are jointly and severally liable to deposit the amount of Rs.3,65,290/- as compensation with interest 12% per annum from the date of death i.e., 25.10.2013. Thus, there is no error committed by the Commissioner while passing the above order. Thereby this Court opines that nothing remains to interfere with the findings of the Commissioner for Workmen's Compensation. Thus, this appoint is answered in favour of respondent Nos.1 to 4/applicants and against the appellant herein.
20. POINT No.5:
In view of the findings on point Nos.1 to 4, this civil miscellaneous appeal is liable to be dismissed. 11
21. In the result, this Civil Miscellaneous Appeal is dismissed by confirming the order of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Dharmavaram in W.C.No.41 of 2005 dated 04.06.2009. The balance amount, if any, in deposit payable to the respondent Nos.1 to 4(applicants) herein shall be released by the Commissioner without insisting for any security. There shall be no order as to costs.
22. Interim orders granted earlier if any, stand vacated.
23. Miscellaneous petitions pending if any, stand closed.
___________________ VUTUKURU SRINIVAS, J Date: 31.10.2022 Krs/Pab 12 THE HON'BLE SRI JUSTICE VUTUKURU SRINIVAS CIVIL MISCELLANEOUS APPEAL No. 959 of 2009 DATE: 31.10.2022 Krs/Pab