Andhra Pradesh High Court - Amravati

United India Insurance Company ... vs L.Basha Sab 6 Ors on 31 October, 2022

          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

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.

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.

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

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

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

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

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.

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

.......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