Gujarat High Court
Zaverbhai Alubhai Rathwa vs Samirkumar Hasmukhlal Shah on 9 July, 2025
NEUTRAL CITATION
C/FA/269/2020 ORDER DATED: 09/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 269 of 2020
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ZAVERBHAI ALUBHAI RATHWA & ANR.
Versus
SAMIRKUMAR HASMUKHLAL SHAH
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Appearance:
MR K R MISHRA(6312) for the Appellant(s) No. 1,2
PRABHATSINH J PARMAR(7996) for the Appellant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 09/07/2025
ORAL ORDER
1. The present appeal has been preferred by appellant-original claimants against the judgment and order dated 22.05.2019 passed by learned Commissioner (J.D.), Workman Compensation Act, Labour Court No. 2, Godhara in Workmen Compensation (Fatal) Application No.1 of 2024 (original Workmen Compensation Application no.56 of 1997), whereby learned Commissioner had dismissed Page 1 of 12 Uploaded by MS.PARUL DUTTA(HCD0073) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:26:43 IST 2025 NEUTRAL CITATION C/FA/269/2020 ORDER DATED: 09/07/2025 undefined the claim application.
2. Heard learned advocate Mr. K. R. Mishra for the appellants. Though served, none appeared for and on behalf of respondent.
Brief facts of the case are as under:
1. Deceased, Baijiben Zaverbhai Rathwa, was working as a labourer at the construction site owned by the respondent-trust. The nature of the work of deceased was that of a daily wager. On 23.3.1995 at around 11 am while shifting the iron rods from the terrace, the iron rod came in contect with a live electric wire and because of the electric shock, deceased got burns. She was shifted to Halol Referral Hospital for treatment and on 28.03.1995 she passed away. The claim application came to be filed by the legal heirs of deceased for claiming compensation Page 2 of 12 Uploaded by MS.PARUL DUTTA(HCD0073) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:26:43 IST 2025 NEUTRAL CITATION C/FA/269/2020 ORDER DATED: 09/07/2025 undefined under the Act. Upon service of notice opponent-
present respondent appeared and filed written statement at Exh-54 and contested the claim application. The claimant no.1, husband of deceased filed examination-in-chief at Exh-20 and 48 respectively, copy of complaint of janvajog entry at Exh-21 and copy of PM report at Exh-22 were produced by claimants in support of claim application. The claimants also produced other documentary evidences in support of their contentions. Opponent examined at Exh-55 and produced vouchers of payment. After considering the evidence on record, the learned Commissioner rejected the claim application.
Being aggrieved and dissatisfied with the impugned judgment and order, claimants-appellants have preferred this first appeal.
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2. Learned advocate for the appellant-claimant submitted that the respondent is a registered trust running B.M. English-Gujarati medium school. For the construction of the school building, deceased was employed as a labourer at the construction site. Deceased was required to bring bricks and cements at the construction site and on 23.3.1995, at around 11 am in the morning when deceased was instructed to remove iron rods lying on the terrace of the construction site, iron rods came into contect with the live electric wire lying on the terrace which resulted into a spark and the deceased got burns. On 28.3.1995 during the treatment, deceased succumbed because of the burn injuries.
3. It is contended that the janvajog entry was registered on 25.3.1995 with Halol Police Station by Page 4 of 12 Uploaded by MS.PARUL DUTTA(HCD0073) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:26:43 IST 2025 NEUTRAL CITATION C/FA/269/2020 ORDER DATED: 09/07/2025 undefined one of the teachers of the school wherein it was mentioned that complainant was informed that deceased was holding an iron rod for striking tamarind tree to get tamarind fruits. The learned commissioner weighed this statement of complainant in the janvajog entry and held that the accident has not occurred during and in the course of employment and therefore the claim application came to be rejected.
4. It is contended that the oral evidence of claimant recorded at Exh-20 and 48 respectively, has gone unchallenged as no cross-examination was done on a factual aspect which has been stated by claimant no.1 in his examination-in-chief. The secretary of the opponent no.1 has been examined at Exh-77 and there is no case made out by the Page 5 of 12 Uploaded by MS.PARUL DUTTA(HCD0073) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:26:43 IST 2025 NEUTRAL CITATION C/FA/269/2020 ORDER DATED: 09/07/2025 undefined opponent in the examination-in-chief that the deceased was holding an iron rod for striking tamarind tree to get tamarind fruits. The post- mortem report which is placed on record at Exh-22 also narrates the cause of death. The cause of death is electrical burns. Learned advocate for the appellant has relied upon a decision in the case of United India Insurance Company Limited versus Madhuben, widow of Rameshbhai Ishwarbhai Patel, reported in 2009 (2) GLH 738. It is submitted that in order to succeed in a compensation application filed under Section 3 of the act, the claimant has to establish that there must be an injury, the injury should be caused in an accident and it should be caused in the course of employment. In the present case, as per the submission of learned advocate for the appellant, all the three aforesaid basic mandatory requirements Page 6 of 12 Uploaded by MS.PARUL DUTTA(HCD0073) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:26:43 IST 2025 NEUTRAL CITATION C/FA/269/2020 ORDER DATED: 09/07/2025 undefined have been established by claimants and there is no contrary evidence to rebut the factors which are proved by the claimants.
5. It appears from the record that though the notice of the appeal has been served upon respondent, no one has remained present to contest the appeal on behalf of respondent.
6. I have considered the submission of learned advocate for the appellant and also perused original Record and Proceedings. The fact surfaces on record is that on 23.03.1995 while removing iron rods from the terrace, where construction activity was going on, live electric wire lying on the terrace got touched with the iron rod which resulted into spark. Due to the burn injuries, deceased expired on 28.3.1995 during treatment. While rejecting the claim Page 7 of 12 Uploaded by MS.PARUL DUTTA(HCD0073) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:26:43 IST 2025 NEUTRAL CITATION C/FA/269/2020 ORDER DATED: 09/07/2025 undefined application, learned Commissioner has given undue weightage on a janvajog entry produced at Exh-21 dated 25.3.1995 wherein the teacher of the respondent school on a hearsay version reported that the deceased was striking tamarind tree with iron rod to get tamarind fruit and deceased got burnt due to electric current pass through iron rod. The said complainant, Hiteshkumar Mafatlal Bhavsar has not been examined by the respondent. There is no eyewitness to the happening of the accident. The secretary of the respondent in his cross-examination recorded at Exh-77 has also admitted the fact that he has not seen the deceased striking tamarind tree with iron rod and such statement is made on the say of someone else. It is also a specific case made out by the claimant in the claim application as well as in the examination-in-chief that the contents of the Page 8 of 12 Uploaded by MS.PARUL DUTTA(HCD0073) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:26:43 IST 2025 NEUTRAL CITATION C/FA/269/2020 ORDER DATED: 09/07/2025 undefined janvajog entry are not admitted and the happening of the incident which has been narrated in janvajog entry, are false. The janvajog entry is registered on 25.3.1995. The evidence of claimant has remained unchallenged in absence of any rebuttal evidence with regard to the happening of the accident, the oral evidence of the claimants and the statement made in the claim application are to be believed.
7. The claim application under Workmen's Compensation Act are benevolent legislation and merely because opponent could not establish their assertion of defense, the claimants cannot be non- suited. The post-mortem report produced at Exh-22 also indicates that the cause of death is due to burn injuries. Therefore, there is no reason to disbelieve the fact that the employee did not die during the Page 9 of 12 Uploaded by MS.PARUL DUTTA(HCD0073) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:26:43 IST 2025 NEUTRAL CITATION C/FA/269/2020 ORDER DATED: 09/07/2025 undefined course of employment. In the case of United India Insurance Company Limited (supra), the Coordinate Bench of this Court in para 9 has referred the decision of Makinan Makinji and Company Limited versus Ibrahim Mahammad Isaq, reported in AIR 1970 SC 1906= 1970 Lab.I.C. 1413:
"The Commissioner has rightly considered aforesaid decision of this Court that driver died because of one girl had come against his bus and all of sudden, he had to apply break and therefore, due to high blood pressure, he died. In the present case, deceased received burns injuries and therefore, he received cardiac arrest which consider to be an accident and it was held that claimants are entitled compensation. The Commissioner has also considered one decision of Apex Court in case of Makinan Makinji and company limited v. Ibrahim Mahmmad Isaq reported in AIR 1970 SC 1906 = 1970 Lab.I.C. 1413. The relevant observation is quoted as under : "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 Page 10 of 12 Uploaded by MS.PARUL DUTTA(HCD0073) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:26:43 IST 2025 NEUTRAL CITATION C/FA/269/2020 ORDER DATED: 09/07/2025 undefined conditions, its obligation and its incidents. If by reason of any 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."
The Commissioner has also considered one more decision reported in 1992 Lab.I.C. 1182 in case of Hindustan Steel Construction Ltd. v. Nuresha Matun, where, Patna High Court has held that in accident, it is not always require injury on outside part of body, but, it can be considered to be an internal injury like heart attack and therefore, if heart attack received by employee during employment, then, it could consider to be an accident and it cannot be considered to be a natural death under the provisions of Section 3 of the Workmen's Compensation Act. Therefore, in the present case, considering the evidence on record and as per postmortem report also, there was burns injury on body. As per Serial No.11 of postmortem report, it has been specifically made clear by Doctor that Rameshbhai was died while working in electric department during recess period due to electric shock having internal injury of cardiac arrest and postmortem report suggests that his entire body was fridge and having burns injury upto 15% - 17% and also having some injuries on head as per Serial No.19(3) and Serial No.20('G') and20('T') suggests a condition of body of Rameshbhai. After death narrated in postmortem report suggests that aforesaid congestion mentioned in postmortem report as referred above, it cannot consider to be a natural death, but, he died because of receiving electric shock during recess period and his skin was also damaged due to electric shock. At the time when he died, he was alive and received electric shock and due to that internal injury which considered as cardiac arrest, therefore, employee Rameshbhai died while falling down on pipe which received burns injury on back side."
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8. In the wake of above discussion and considering the facts of the present case, in my opinion, learned Commissioner has committed an error by giving undue weightage on janvajog entry given by a person who has not seen the accident occurred and wrongly held that the accident has not occurred during the course of employment. Therefore, this First Appeal is allowed. The judgment and order dated 22.05.2019 passed by learned Commissioner is hereby quashed and set aside. The application of the claimants is hereby allowed.
9. Record and proceedings, if any, be sent back to the concerned Tribunal/Court, Forthwith.
(D. M. DESAI,J) PD Page 12 of 12 Uploaded by MS.PARUL DUTTA(HCD0073) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:26:43 IST 2025