The United India Insurance ... vs Kunireddy Vara Laxmi
2023 Latest Caselaw 5430 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

       CIVIL MISCELLANEOUS APPEAL No.208 of 2019

JUDGMENT:

The present Civil Miscellaneous Appeal is filed under

Section 30 of the Workmen‟s Compensation Act, 1923 (for

brevity "the Act") aggrieved by the order dated 13.12.2016

passed in W.C.No.06 of 2015 by the Commissioner of

Employees Compensation & Assistant Commissioner of

Labour, Circle-II, Visakhapatnam (for short "the

Commissioner").

2. The Appellant herein is the Respondent No.2/

Opposite Party No.2 and the respondents No.1 to 5 are the

applicants/claimants and respondent No.6 is the Opposite

No.1 in W.C No.06 of 2015. For sake of convenience, the

parties are hereinafter referred to, as they are arrayed before

the Commissioner.

3. The applicants have filed the impugned W.C.No.06 of

2015 before the Commissioner seeking for a direction to

Opposite Parties No.1 and 2 under Workmen‟s Compensation

Act, 1923 claiming compensation for Rs.8,00,000/-.

4. Brief facts of the case are that the deceased was

workman within the meaning of the Act employed as a Lorry

Driver by the Opposite No.1 on his Lorry bearing No.AP 26 TT

7529. On 26.05.2014 at about 7.00 p.m., the deceased was

received a phone call to attend for duty immediately then by

informing the same to the 1st applicant left the house.

Thereafter on the very next day i.e., on 27.05.2014 the 1st

applicant received a phone call from the unknown person that

he deceased was found dead in the Lorry bearing No.AP 26 TT

7529. Immediately, the 1st applicant made a complaint to the

SHO Gajuwaka Police Station and thereafter the deceased was

shifted to KGG, Visakhapatnam and conducted postmortem.

It is stated that on 26.5.2014 the deceased was on duty as a

driver on the said lorry for attending the work as instructed by

the employer i.e., Opposite Party No.1. The Gajuwaka police

has registered a case in Crime No.322 of 2014 under Section

174 Cr.P.C. It is stated that the accident occurred during the

course and out of employment of the Opposite Party No.1.

they stated that while discharging his duties on the said Lorry

the workman died in the tragic accident during the course of

his employment. The deceased workman was paid wages @

Rs.10,000/- per month and that he was aged about 35 years

at the time of accident and that the said Lorry was insured

with the Opposite Party No.2 who is appellant herein.

Therefore, the applicants have filed the impugned application

claiming compensation of Rs.8,00,000/- against the Opposite

Parties No.1 and 2.

5. Despite service of notice on the Opposite party No.1,

neither attended nor filed the counter and hence, he was set ex

parte before the Commissioner. The Opposite Party No.2 filed

counter and denied all the allegations made in the petition and

also denied that the workman sustained injuries during the

course and out of his employment and the wage claimed by the

applicants. It is contended that the deceased was died due to

injuries sustained in the accident, during the course of

employment of the Opposite Party No.1 and therefore, it is the

responsibility of the applicants to prove the same with strict

proof. Further, the applicants are fabricated the mysterious

death case which was registered under Section 174 of Cr.P.C

into an accident case which is due to the reasons mentioned in

Section 174 of Cr.P.C and trying to get an unlawful gain from

the Opposite Party No.2 under the colour of employment

Compensation Act 1923. Therefore, prayed to dismiss the

application against it.

6. During course of trial, on behalf of the applicants,

AW.1 was examined and Ex.A1 to Ex.A3 were marked.

7. The learned Commissioner, after hearing on both

sides passed an order holding that (i) both the Opposite Parties

are jointly and severally liable to pay compensation amount of

Rs.7,23,506/- to the applicants who are dependants of the

deceased. The Opposite Parties are further directed to deposit

the said amount by means of a DD drawn on any Nationalized

bank in favour of the Commissioner of Employees

Compensation and the Joint Commissioner of Labour,

Visakhapatnam District, within 30 days from the date of

receipt of the order, failing which, the applicants are entitled

for interest @ 12% p.a. on the amount of compensation from

the date of default of payment; (ii) In view of Section 4(A) of the

Employees Compensation Act, 1923 if the Ops fails to deposit

the amount, they shall be liable for 50% penalty on the above

compensation amount together with simple interest p.a. on the

amount of compensation and penalty. Aggrieved by the same,

the present civil miscellaneous appeal came to be filed.

8. Heard Sri Naresh Byrapaneni, learned Counsel

appearing for the appellant and Sri A. Bhargav, learned

counsel appearing for the respondents.

9. During hearing, learned counsel for the appellant

submits that the order of the Commissioner is contrary to law,

weight of evidence and probabilities of the case. He submits

that the Commissioner grossly erred in making the appellant

liable to pay compensation though the death of the deceased

driver was not out of and in course of employment. He further

submits that the Commissioner failed to note that the

deceased was found dead near Sheelanagar Bus Stop and the

cause of death was not known as per Ex.A1 the FIR given by

the 1st respondent and erred in making the appellant liable to

pay compensation. He further submits that the Commissioner

grossly erred in not looking into the judgment of Apex Court

reported in 1969 ACJ Page 422 where a principle was laid

down that there should be an accident, the accident must be

out of and in course of employment and the workmen must be

performing his duties which he was supposed to discharge at

the time of accident.

10. To support his contentions, learned counsel for the

appellant placed reliance on the decision of Hon‟ble Supreme

court reported in Mackinnon Mackenzic & Co. Pvt.Ltd., v.

Ibrahim Mahmmod Issak1, wherein the Apex Court held that:

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 conditions, its obligations and its incidents. If by reason of any of these factors the workman is brought within the scene 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. In Lancashire and Yorkshire Railway Co. v. Highley(1) Lord Sumner laid down the following test for determining whether an accident "arose out of the employment":

11. Per contra, learned counsel for the respondents

while denying the allegations made in the petition, submits

that the Commissioner has rightly allowed the application and

he opposed for allowing the appeal. To support his

contentions, learned counsel for the respondents has placed

reliance on the judgment of High Court of Jammu and

Kashmir at Jammu reported in United India Insurance Co.

Ltd., vs. Inderjeet Kour and others2, wherein it was held that

:

1969 ACJ 422

MANU/JK/0650/2018

6. In the case cited by the learned counsel for the appellant, the deceased had die while discharging his duties. The autopsy was conducted wherein the cause of death was opined as cardiac arrest due to rupture of aortic aneurysm.

Apart from the aforesaid medical evidence, there was no evidence brought on record by the claimants to establish that the cardiac arrest was due to the strain of the work. In the context of the foresaid fact situation, the Supreme Court held that only because a person had died due to heart attack, the same would not give rise to automatic presumption that the same was way of accident. A person may be suffering from heart disease although he may not aware of the same. Medical opinion will be of relevance providing guidance in this half. On the side lines, the Supreme Court also went on to hold that the onus to prove that it was the work related strain which had attributed or aggravated the injury is -on the claimant. From a careful perusal of the aforesaid judgment it would transpire at in the aforesaid case, there was no dispute with regard to cause of death. It was e to heart attack and in that context, the Hon'ble Supreme Court observed that it was the claimant to show that the heart attack was due to the work related stress and pain. I fail to understand how the judgment rendered by the Supreme Court in the said case is applicable to the fact situation of this case where, admittedly, the se of death is not known and it is fairly established that the deceased was on a trip m Jammu to Poonch and back and when he was coming back, he was found dead in cabin of the Truck near Akhnoor. In such situation, the doctrine of "Res ipsa loqitur" would be attracted.

Literal meaning of "Res ipsa loquitur" is that "thing speaks for itself". The umstances in which the deceased met with untoward death speak for themselves and e should be no manner of doubt that the death of the deceased was nothing but as a t of stress and strain of driving in the hilly terrain from Jammu to Poonch and back. he view I have taken, I am supported by the judgment of the Supreme Court ered in the case of Mst. Parampal Singh Vs. M/s. National Insurance Company and er; MANU/SC/1113/2012: (2013) 3 SCC 409 decided on 14.12.2012. The facts of case of Param Pal Singh (supra) are identical to the facts of the case in hand. In the mentioned case, the deceased was employed as truck driver. On 17.07.2002, he driving a Truck in connection with commercial transport operation from Delhi to Nimiaghat. When the truck reached near about of Nimiaghat, the deceased felt giddy therefore, parked the vehicle on the roadside near a hotel and soon thereafter, he d. The deceased was removed to a nearby hospital, where the doctors declared him brought dead. The claim petition was filed by the claimants before the Commissioner alleging that the death of the deceased was due to stress and strain of continuous driving in the course of his employment with the employer. In the backdrop aforesaid facts situation, the question that arose for determination before the me Court was whether the death of the deceased was in an accident arisen out of the course of his employment with the employer. The Hon'ble Supreme Court king note of case law on the subject including the English law, came to the on that there was causal connection to the death of the deceased with that of -employment as Truck driver. What was held by the Supreme Court in the aforesaid in paragraph 29 is as under:-

...... Applying the various principles laid down in the above decisions to the death of this case, we can validly conclude that there was CAUSAL CONNECTION death of the deceased with that of his employment as a truck driver. We cannot lose sight of the fact that a 45 years old driver meets with his unexpected death, may be due to heart failure while driving the vehicle from Delhi to a distant unexpected death, may be due to heart failure while driving the vehicle from Delhi to a distant place called Nimiaghat near Jharkhand which is about 1152 KMs, away from Delhi, would have definitely undergone grave strain and stress due to such long distance driving. The deceased being a professional heavy vehicle driver when undertake the job of such driving as his regular avocation it can be safely held that such constant driving of heavy vehicle, being dependant solely upon his physical and mental resources & endurance, there was every reason to assume that the vocation of driving was a material contributory factor if not the sole cause that accelerated his unexpected death to occur which in all fairness should be held to be an untoward mishap in his lifespan. Such an „untoward mishap‟ cn therefore be reasonably described as an accident as having

been caused solely attributable to the nature of employment indulged in with his employer which was in the course of such employer‟s trade or business...."

12. In another case reported in Assistant Divisional

Officer, Kerala Fire and Rescue Services and Ors., Vs.

Vijayalakshmi and Ors.3 , wherein the High Court of Kerala

held that :

Before I proceed further, the judgment cited by Smt. M.Manju is also of great relevance. In P.V.Sheeja (supra), a learned Division Bench of this Court, relying upon an earlier judgment, opined in paragraph 8 thereof as under:

"S.3 of the Act, in essence, provides for liability with the employer on the existence of the following indispensable elements:

There must be a personal injury caused; it should be to an employee by accident and it should arise out of and in the course of his employment. If these conditions are satisfied, the employer would become liable to pay compensation. The word 'accident has been considered by this court in Shah v. Rajankutty, MANU/KE/0314/2005: 2005 KHC 1193:2005 (3) KLT 1014: ILR 2005 (3) Ker. 843: 2005 (3) KLJ 192. Therein, the Court held as follows:

Accident is not defined in the Workmen's Compensation Act, 1923. Therefore, the word 'accident' should be understood in the popular and ordinary sense as denoting 'an unlooked for mishap or an untoward event which is not expected or designed'. A death due to a natural disease (other than an Occupational disease) is not an accident. Death of a workman by disease is not synonymous with accident. It is a natural death and not accident. But, the sudden death from the point of view of workman, who dies unexpectedly during the course of employment, without any disease is an 'accident'. Selfi inflicted injuries and suicide are not accidents. Here, the workman fell down with head load, collapsed and died due to heart failure.

Thereafter, the Court also observed as follows, in regard to the question as to the connection required between the employment and death;

'It is true that even if the 'death' is an accident on claimant's point of view, to get compensation, it must be in the course of employment and arising out of employment. Here, there is no dispute that the death was during the course of employment. Question is whether it is arising out-of employment. The accident which resulted in the injury or death, must be connected with the employment and must arise out of it; there must be casual connection or association between the employment and the accidental injury. Only a casual connection or nexus is necessary. It is an admitted case that while carrying cashew bags, he fell down and, consequently, he died, even though ultimately his heart failed. Falling down while carrying cashew bags is an accident and that is the immediate cause which has accelerated the death of the workman. Therefore, he died due to personal injuries caused in an accident arising out of and in the course of employment."

21. Though in this case no medical evidence had been lead by either side to show that late Sri. Kanakadasan was not suffering from a pre-existing coronary disease, the fact that he was appointed as a Home Guard on 30.08.2011, after undergoing rigorous physical eligibility test as mentioned above and the fact that

MANU/KE/2465/2020

he was found to be a man of normal health-without any latent or patent medical concerns-would clearly establish that he was not suffering from any disease, let alone coronary disease. Had it been otherwise and had he been suffering from any indisposition, it would have been easily exposed at the time he went through the physical endurance exercises; and Consequently, the observations of this Court in P.V. Sheeja (supra) becomes absolutely ital. As has been decided therein, the factum of an abrupt heart attack (with-out history of an earlier disease) during employment construes the character of an accident under the Act and that the claimants are, resultantly, entitled to seek compensation under its provisions.

13. On a perusal of the entire material available on

record, this Court observed that on 26.5.2014 the deceased

was on duty as a Driver on the Lorry bearing No.AP 26 TT

7529 for attending the work as instructed by the employer i.e.,

Opposite Party No.1. The Gajuwaka police have registered a

case in Crime No.322 of 2014 under Section 174 of Cr.P.C.

The accident occurred during the course and out of

employment of the Opposite Party No.1. The contention of the

applicants/respondents that on the instructions of the

Opposite Party No.1 while discharging his duties on the said

Lorry the workman died in the tragic accident during the

course of his employment. They stated that the deceased

workman was paid wages @ Rs.10,000/- per month.

14. As seen from the impugned judgment, this Court

observed that, in the cross examination of Opposite Party No.2

accepted that he was not filed any documentary evidence that

he was working as opting cleaner in the vehicle bearing No.AP

26 TT 7529. He accepted that he don‟t know the driver was

died even though he was on duty by that time along with the

deceased. He accepted that he was not filed any complaint in

the police station but he informed to one of his friend. He

accepted that he was not informed where the vehicle to go for

loading and unloading. He denied the suggestion that he is

deposing false to help the applicant‟s due to the acquaintance

with the deceased and the deceased was not in the

employment of Opposite Party No.1 and he was not died during

the course of employment.

15. This Court further observed that from the impugned

judgment that, there is no doubt that the phrase 'arising out

of and in the course of employment' has been the subject

matter for interpretation in numerous cases and various

Courts have given their views as to the meaning of the phrase.

The words "arising out of and in the course of employment"

comprise two different phrases. The phrase in the course of

employment' suggests the point of time i.e., the injury must be

caused during the currency of the employment, whereas, the

expression 'out of employment' conveys the idea that there

must be some sort of connection between the employment and

the injury caused to a workman as a result of accident. The

expression 'arising out of employment' means that during the

course of employment injury has resulted some risk incidental

to the duties of the service which, unless engaged in the duty

owing to the employer, it was reasonable to believe that the

workman would not otherwise have suffered. The words 'in the

course of employment' mean, in the Course of work which the

workman is employed to do and which is incidental to it. It is

significant to note that the section uses the term "arising out of

and in the course of his employment". It does not say 'arising

out of and in the course of his work. It is obvious that the term

'employment' has been given

16. It is pertinent to mention here that, in Section 3,

words 'out of and in the course of employment' are used

conjunctively and not dis-conjunctively. The words „out of

point to the origin or cause of accident‟, while the words in the

course of to the time, place and circumstances under which

accident took place. The expression „arising out of employment‟

means that during course of employment injury has resulted

from some risk incidental to the duties of service, which,

unless engaged in the duty owing to the employer, it is

reasonable to believe that the workman would not otherwise

have suffered. The expression „in the course of employment'‟

means in course of work which the workman is employed to do

and which is incidental to it. An accident arises out of

employment if it is due to a danger to which the workman is

exposed by reason of nature, conditions, obligations or

incidents of employment.

17. As seen from the evidence of AW.1 and AW.2

besides other documentary evidence from Ex.A1-FIR copy in

Cr.No.322 of 2014 registered by the Gajuwaka Police Station,

Ex.A2-Post Mortem certificate issued by the Department of

Forensic Medicine, Andhra Medical College dated 28.5.2014

shows that the deceased was died due to head injury and that

the death was happened due to injuries. Further, the Opposite

Party No.2 failed to prove with any documentary evidence that

the deceased was not working with the Opposite Party No.1.

Whereas, the AW.2 in his examination stated that the deceased

was attended the duties on the instructions of Opposite Party

No.1 and waiting unloading early in the morning they sleep in

the vehicle itself and later was found that the deceased was

dead.

18. The Employees Compensation Act 1923 is a

beneficent legislation and must, therefore, be given a liberal

construction. Rights of Workman deserves to be generously

treated in a welfare state and legislative measures like the Act

should be considered in more liberal sense and, as far as

possible, in favour of workman so that deserving workmen get

full and speedy benefit and advantage of its beneficial

purposes. Such liberal interpretation would accomplish the

humane and beneficial purposes of this economic needs

recognized by our society and the Constitution. The Act being

welfare legislation, its provisions should receive liberal

interpretation so as to advance the object and purpose of the

Act.

19. Having regard to the facts and circumstances of the

case, this Court observed that the findings of the case of

Mackinnon Mackenzic (Supra 1) filed by the appellant are

applicable to the case of the respondents herein.

20. Therefore, this Court found no illegality in the order

passed by the Commissioner and warrants no inference by this

Court. Finding no merit in the instant civil miscellaneous

appeal and devoid of merits and the same is liable to be

dismissed.

21. Accordingly, the Civil Miscellaneous Appeal is

dismissed. There shall be no order as to costs.

22. As a sequel, all the pending miscellaneous applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :    10 -11-2023
Gvl





      HON'BLE DR. JUSTICE K. MANMADHA RAO




      CIVIL MISCELLANEOUS APPEAL No.208 of 2019


                 Date :   10.11.2023




Gvl