Andhra Pradesh High Court - Amravati
The New India Assurance Company Ltd. vs Smt. Kootam Venkateswaramma on 14 December, 2023
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
C.M.A.No.85 of 2022
JUDGMENT:
The Appellant herein filed this Appeal under Section 30 of
Workmen's Compensation Act, against the Order and Decree
dated 25.11.2021 passed in W.C.No.2 of 2019 by the Court of
the Commissioner for Workmen's Compensation and Assistant
Commissioner of Labour, Vijayawada, (in short 'learned
Tribunal') whereby the learned Tribunal has granted a total
compensation of Rs. 5,70,720/- for the death of the deceased/
driver during the course of his employment.
2. The appellant herein is the 2nd opposite party; 1st
respondent herein is the applicant, who is wife of deceased Mr.
Kootam Narasimha Rao and 2nd respondent herein is the 1st
opposite party before the learned Tribunal.
3. The 1st respondent/ applicant has filed a claim petition
before the tribunal alleging that the deceased workman as a
driver, stopped lorry to attend natural call at 4.00 a.m on
03.12.2018 at Amalapuram, as the driver did not turn up in
time, the cleaner went to enquire and found the driver fell on
the ground unconscious condition. The cleaner sprayed some
water with a bid to wake up, but in vain, suspecting the
condition cleaner made a call to 108 Ambulance and they came
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to spot and declared dead after check up. A case in Crime
No.154 of 2018 was registered by Allavaram Police Station.
Therefore, the 1st respondent approached the appellant/ 2nd
opposite party and 2nd respondent with a request to pay
compensation, but in vain. Hence the applicant/ 1st respondent
have approached the Tribunal.
4. The 1st respondent filed counter by admitting the
employment of the deceased workman and he used to pay Rs.
12,000/- per month towards salary and Rs. 200/- per day
towards batta. It is further stated that the deceased had valid
driving license and the insurance at the time of the accident.
5. The 2nd opposite party before the tribunal have filed
counter denying all material allegations made in the claim
petition and mainly contended that they denied the employment
and occurrence of the incident and the applicant has to show
the proof for the dependency on the deceased workman.
Therefore the claim is liable to be dismissed. Therefore this
appellant is not liable to indemnify the liability of the 2nd
respondent/ 1st opposite party and that the claim petition is
liable to be dismissed.
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6. Basing on the pleadings, the learned Tribunal has
framed the following issues viz.,
1) Whether the deceased Sri Kootam Narasimha Rao was a workman
U/s.2(1)(n) of the Workmen's Compensation Act at the time of his death
and whether the deceased had died during and out of the course of
employment?
2) Whether or not the 2nd opposite party is liable to pay compensation
amount as workman died with heart attack?
3) If so, what is the age and wage of the deceased at the time of his
death?
4) What is the amount of compensation and from which date the
compensation amount is due?
7. During the course of trial, the 1st respondent was
examined as AW-1 and got marked Ex.A1 to A9 and the
appellant / 2nd opposite party examined as RW-1 and no
documents were marked.
8. Learned Tribunal, after hearing on both sides passed
an order holding that the opposite parties 1 and 2 are jointly
and severally held liable to pay the compensation of Rs.
5,70,720/- to the applicant i.e 1st respondent. Assailing the
same, the present C.M.A came to be filed by the appellant/ 2nd
opposite party.
9. Heard Mr. Naresh Byrapaneni, learned Counsel for the
Appellant and none represented for the respondents.
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10. During hearing learned counsel for the appellant
would contend that the learned Tribunal ought to have saddled
the liability to pay compensation of Rs. 5,70,720/- to the 1st
respondent. The court below failed to appreciate that no legal
fiction can be raised that the deceased died while attending calls
of nature in the course of employment is attributable to the
stress and strain during the course of his employment. The 1st
respondent failed to establish that the death was caused by
reason of failure of heart and is because of the stress and strain
of the work. There is no medical evidence to prove the nature of
death of the deceased. But the learned tribunal without
considering these aspects and went wrong presumption that the
deceased died of heart attack due to stress and strain, during
the course of employment is not at all correct. Therefore, the
appellant is not liable to pay any compensation to the 1st
respondent and requested to allow the appeal.
11. Perused the record.
12. In the instant case, the deceased was died due to
heart attack during the course of employment as documents,
which are marked as Ex.A1 to A9. It is the contention of the 1st
respondent that the deceased attended his duties without any
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interruption and the deceased along with cleaner started from
Undrajavaram to Bodasakurru for load on 02.12.2018, the
deceased felt very stress and tidiness in the meantime he
suffered with heart attack due to stress and strain. As per issue
No.2, the worker's suffering from stress and strain, in unloading
the cement. Therefore learned tribunal came to a conclusion
that the deceased workman felt stress and strain of the work
during the course of employment and died.
13. During the course of hearing learned Standing
Counsel for the appellant placed on record the decision of
Hon'ble Apex Court in "Shakuntala Chandrakant Shreshti v.
Prabhakar Maruti Garvali and Another"1 wherein it was held
as follows:
"Only because the cause of death was due to heart
attack, the same by itself may not be a ground to arrive at a
conclusion that an accident had occurred resulting in injury.
The nature of duty of the deceased was that of a
helper. Per se that the duties would not be such which could
cause stress or strain. If an additional duty were required to
be performed by him, the same was required to be clearly
stated.
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
Indian Kanoon-http://indiankanoon.org/doc/405550/ =
Appeal (Civil) No.4778 of 2006, dt.10.11.2006
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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 a
jurisdictional fact, reference to any precedent would not be
helpful as a little deviation from the fact of a decided case or
an additional fact may make a lot of difference by arriving at
a correct conclusion. For the said purpose, the statutory
authority is required to pose unto himself the right question.
Section 30 of the said Act postulates an appeal
directly to High Court if a substantial question of law is
involved in the appeal.
A jurisdictional question will involve a substantial
question of law. A finding of fact arrived at without there
being any evidence would also give rise to a substantial
question of law. From the order passed by the Commissioner,
it appears, he has not arrived at a finding that the job
involved any stress or strain. It was merely stated that he
was working as a Khalasi in a truck which was going to
Tavarewadi Village from Kolhapur to get the milk. The
autopsy was conducted at Chandgad District Hospital. The
driver Prashant Chandrakant Shreshti admittedly brought
him to hospital. He was his brother. The post mortem
examination commenced from 6.30 a.m. on 28.9.2002 and
ended at 7.30 a.m. on the same day. From the post mortem
report, it appears that in the accompanying report, it is
stated that the death was due to sudden heart attack. When
exactly the death took place is not known. It will bear
repetition to state that under what circumstances the death
took place is also not known. There was also no pleading in
this behalf. The Commissioner came to the conclusion that
the death took place during the course of the employment but
then no evidence has been brought on record to show that it
had a causal connection between accident and serious injury
so as to fulfill the requirements of the terms "out of
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employment". Indisputably, there has to be an proximate
nexus between cause of death and employment. A stray
statement made by Appellant that the deceased had died
while working in the vehicle and stress or strain of the work
did not appear to have any foundation. Admittedly she was
not present at the spot. She had also no personal knowledge.
All these facts she had admitted in cross-examination".
14. Learned counsel for the appellant vehemently argued
that in view of the ratio as laid down by the Hon'ble Apex Court
cited supra, the Insurance Company i.e appellant herein is not
liable to pay any compensation to the 1st respondent. So also,
argued that the compensation awarded by the learned Tribunal
is highly excessive and exorbitant.
15. Upon perusal of the impugned Award would show that
the learned tribunal has not applied properly the ratio while
assessing the compensation is within the parameters of the
Workmen's Compensation Act, 1923. Therefore the impugned
order is cryptic and warrants interference. The decision cited
supra is squarely applicable to the facts of the instant case.
Following the said decision, this Court is inclined to allow the
C.M.A.
16. Having regard to the facts and circumstances of the
case, upon perusal of the material available on record and
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considering the submissions of the both the counsel, the C.M.A
is allowed, while setting aside the impugned order and decree
dated 25.11.2021 passed by the learned Tribunal. The appellant
herein has deposited an amount of Rs. 5,70,720/- before the
learned Tribunal under protest before filing the Appeal as per
Memo dated 03.02.2022. The same shall be entitled to be
withdrawn by the appellant by filing proper application before
the learned tribunal. The amounts, if any, as withdrawn by the
respondent/ claimant, the same shall be recovered from the
owner of the vehicle i.e 2nd respondent/ 1st respondent by the
appellant by following due procedure. There shall be no order as
to costs.
As a sequel thereto, miscellaneous petitions, if any,
pending shall stand closed.
________________________________
Dr.JUSTICE K. MANMADHA RAO
Date 14.12.2023.
Note : L.R.Copy marked
B/o
KK
9 Dr.KMR, J
THE HON'BLE Dr.JUSTICE K. MANMADHA RAO
Date: 14.12.2023.
Note : L.R.Copy marked
B/o
KK
10 Dr.KMR, J
IN THE HIGH COURT OF ANDHRA PRADESH AT
AMARAVATI
% 14.12.2023
# The New India Assurance Company Ltd
represented by its Divisional Manager ,Vijayawada ... Appellant.
Vs.
$ Kootam Venkateswaramma and Another
... Respondents.
! Counsel for the Appellant : Mr.Naresh Byrapaneni
! Counsel for the Respondent : Nil
< Gist:
> Head Note:
? Cases referred:
Indian Kanoon-http://indiankanoon.org/doc/405550/ =
Appeal (Civil) No.4778 of 2006, dt.10.11.2006
DATE OF ORDER PRONOUNCED: 14.12.2023
* THE HON'BLE DR. JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers Yes
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes
Marked to Law Reporters/Journals.
3. Whether Their Ladyship/Lordship wish Yes
to see the fair copy of the Judgment?
___________________________
DR.K. MANMADHA RAO, J
11 Dr.KMR, J
