Bajaj Allianz General Insurance ... vs Smt. Sabhajeet Sharma And 2 Others
2021 Latest Caselaw 4223 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 1
 

 
Case :- FIRST APPEAL FROM ORDER No. - 297 of 2021
 

 
Appellant :- Bajaj Allianz General Insurance Co. Ltd.
 
Respondent :- Smt. Sabhajeet Sharma And 2 Others
 
Counsel for Appellant :- Rahul Sahai
 

 
Hon'ble Vivek Agarwal,J.

Sri Rahul Sahai, learned counsel for the appellant.

The present appeal has been filed by the claimant-Bajaj Allianz General Insurance Co. Ltd. being aggrieved of award dated 28.11.2020 passed by learned Commissioner under Employees Compensation Act and Deputy Labour Commissioner, Azamgarh Division Azamgarh, whereby learned Tribunal has compensated the claimants upon the death of their son, who was admittedly employed with respondent no.2 as a Driver and while driving the trailor, on which he was assigned duties, died in between Bombay and Agra at District Guna.

Learned counsel for the appellant submits that claimants have failed to discharge the onus that there was any casual connection between the injury and the accident and secondly they have also failed to show that it was the work and the resulting strain which contributed to or aggravated the injury. Reliance is placed on the judgment of Hon'ble Supreme Court in case of Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali & Anr., AIR 2007 SC 248.

Exhaustively reading paragraph nos. 24, 25 26 and 27, it is submitted that since claimants have failed to prove any casual connection between the death and the nature of work, Tribunal has erred in awarding compensation in favour of the claimants.

After hearing learned counsel for the appellant and going through the available material, it is evident that Hon'ble Supreme Court in the case of Shakuntala Chandrakant Shreshti (supra) has laid down certain principles in paragraph no.24, which reads as under:-

"The principles are :

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

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

(3) If the evidence brought on records 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 fact of each case."

It has also held that an accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place, in course of employment, will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. In case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:

(i) stress and strain arising during the course of the employment.

(ii) nature of employment.

(iii) injury aggravated due to stress and strain.

In para 39, it has been held that unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well settled that for arriving at a finding of jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or a additional fact may make a lot of difference in arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose on to itself the right question. Thereafter in paragraph no.44, it has been observed as under:-

"We are not oblivious of the proposition of law as was stated by Frankfurter, J. in J.J.O' Leary, Dy. Commnr., Fourteenth Compensation Distt. v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that the court will not disturb a finding of an Administrative Tribunal when two views are possible and only because the appellate court can take a contrary view. But in the instant case, the Commissioner did not go into the jurisdictional facts not arrived at any finding based on any legal evidence in regard to the causal connection between the employment and the death."

Perusal of the aforesaid judgment and its examination in the light of facts of the present case reveals that it is an admitted fact both by the claimant as well as owner of the vehicle that deceased was employed on Trailor No. GJ 27U 65 6572. It is also admitted that trailor was moving on Bombay Agra Highway when said incident took place and the deceased died in the cabin of the trailer at about 5:30 am. Claimants had filed copy of report under Section 174 Cr.P.C., post mortem report, spot panchayatnama etc. It is also true that the Insurance Company though disputed the fact of employment so also the fact that death took place in the cabin of the Trailer. They claimed that no proof has been filed by the claimants in support of the cause of death of the deceased. However the fact of the matter is that post mortem report was brought on record. It is also true that Insurance Company failed in discharging its duty of examining or calling the doctor who had conducted the post mortem had given the report or to dispute the report of post mortem by leading any other cogent medical evidence to substantiate that the cause of death mentioned in the post mortem report is incorrect. They could not even dispute the Naksha Panchayatnama showing recovery and correlation of other material facts like death of the deceased in the cabin of the truck etc. They even did not brought any material on record to show that truck was not moving on the fateful day between Agra and Bombay on National Highway when this incident took place at Binaganj at Tehsil Chachoda District Guna which is on way to Agra when one starts travelling from Bombay. Thus, Insurance Company except for raising a pointing finger did not discharge any burden to rebut any of the factual aspect of the case and in its usual manner just denied the death, place of death, employment and the cause of death.

In my opinion, in terms of law laid down in case of Shakuntala Chandrakant Shreshti (supra), claimant had discharged their burden by proving that deceased was in employment of respondent no.2 before the Tribual, secondly, that death was due to the strain undertaken by the driver on such long journeys. Interestingly, Insurance Company, which is equipped with a battery of lawyers and expert assistance did not produce any empirical study on the subject to substantiate that a 30 year old man cannot die of heart attack caused by driving strain specially when it is known fact that in country like India, drivers are required to drive for long distances without adequate rest and other bodily needs so to keep them equipped with requirements of maintaining good health.

In absence of any such material or empirical study, the material which was produced by the claimant, namely, post mortem report, factum of employment as a driver on a long route truck and the Naksha Panchayatnama, in my opinion, are sufficient documents to correlate the cause of death to the occupation on which the deceased was engaged. The ratio of the judgment in case of Shakuntala Chandrakant Shreshti (supra) as specifically mentioned in paragraph no.24 is not a one way traffic. The meaning and import of the principles laid down in paragraph no.24 is that there cannot be any automatic blanket presumption in favour of a detah taking place on a highway as to be treated to be an accident. The ratio is that claimants are requited to substantially discharge their burden. This as a natural corollary means that once claimants put forward certain documents in support of their claim like what has been done in the present case in the form of post mortem report, onus shift on the insurer to deny those documents through some cogent expert evidence and not merely at the whims and fancies of the Insurance Company.

I will be failing in my duty in not making an observation, which is pertinent and relevant to the facts and circumstances of the case that insurers are usually are taking their work in a very casual and light manner by simply putting a blanket denial without understanding their social obligation and responsibility that they are in the business of insurance to not only blanketly deny the claims but to settle the claims which are rightful and just and proper. This observation flows from experience and I am embolden to say this that Insurance Companies by and large fail in even settling the just and proper claims at the first instance. Therefore, after having failed to discharge their burden, Insurance Company, which is better equipped both in terms of resources and paraphernalia cannot file appeals in a casual manner taking technical pleas without substantiating any of their pleas through any expert evidence. Therefore, in my opinion, Insurance Company has failed to make out a case that there was no casual connection between cause of death and the occupation on which deceased was engaged and, therefore, appeal needs to fail and is dismissed.

If any amount is deposited by the Insurance Company, in compliance of the provisions contained in Section 173 of the Motor Vehicles Act, it be remitted to the Claims Tribunal to be adjusted from the claim amount.

Order Date :- 22.3.2021

Ravi/-