New India Assurance Co. Ltd vs Shobhabai Bajirao Shelar And Ors
2009 Latest Caselaw 44 Bom

                               (1)


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY,




                                                                  
                       BENCH AT AURANGABAD




                                          
                  FIRST APPEAL NO. 1228 OF 2007




                                         
    New India Assurance Co. Ltd.,
    Branch Manager, Nandurbar,
    through its Authorised Signatory
    Mr. Suhas s/o Purushottam Puranik,
    Deputy Manager, New India Assurance




                              
    Co. Ltd., R/o Aurangabad.                                APPELLANT

             VERSUS
                      
    1.   Shobhabai wd/o Bajirao Shelar
                     
    2.   Shivaji s/o Bajirao Shelar,
         Both r/o Nagsen Nagar, Near
         Naik High School, Shahada, Tq.
         Shahada, Dist. Nandurbar. 
    3.   Mahendra Lakhamichand Agrawal,
      


         R/o Khetiya Road, Shahada, Tq.
   



         Shahada, Dist. Nandurbar.                           RESPONDENTS

         .....

Mr. Dhananjay Deshpande, advocate for the appellant. Mr. J.R. Shah, advocate for the respondent No. 3.

.....

WITH

FIRST APPEAL NO. 735 OF 2009

New India Assurance Co. Ltd., Branch Manager, Nandurbar, through its Authorised Signatory Mr. Vishwas s/o Bansi Gaikwad, Sr. Divisional Manager, New India Assurance Co. Ltd., R/o Aurangabad. APPELLANT

VERSUS

1. Shobhabai wd/o Bajirao Shelar

2. Shivaji s/o Bajirao Shelar

Both r/o Nagsen Nagar, Near Naik High School, Shahada, Tq. Shahada, Dist. Nandurbar.

3. Mahendra Lakhamichand Agrawal,

R/o Khetiya Road, Shahada, Tq.

Shahada, Dist. Nandurbar. RESPONDENTS

.....

Mr. Dhananjay Deshpande, advocate for the appellant.

Mr. Hemant Surve, advocate for respondents No. 1 and 2. Mr. J.R. Shah, advocate for respondent No. 3.

.....

[CORAM : V.R. KINGAONKAR, J.] [DATE : 8th December, 2009]

ORAL JUDGEMENT :

1. These appeals are being decided together in as

much as they arise out of same set of facts and the

proceedings under section 4 read with Schedule-IV of the

Workmen's Compensation Act, 1923.

2. The respondents are original claimants. They

filed application under section 4 read with Schedule-IV

of the Workmen's Compensation Act for compensation of

Rs. 3,22,297/- on account of death of Bajirao, who was

driver of a dumper vehicle bearing registration No.

MH-18/E7190, alleging that his death occurred during

course of the employment with original respondent No.1.

They also filed application for interim compensation in

the said proceedings.

3. Since the interim compensation was awarded by

the Workmen's Compensation Commissioner/Civil Judge

(S.D.), the Insurance Company has preferred First Appeal

No. 735/2009 which came to be registered after

condonation of the delay. The original application was

finally adjudicated and compensation of Rs. 86,260/-

alongwith future interest at rate of 9 per cent P.A. was

awarded to the respondents by allowing their application

under section 4 read with Schedule-IV of the Workmen's

Compensation Act. Feeling aggrieved, First Appeal No.

1228/2007 is preferred by the Insurance Company.

4. It is undisputed that deceased Bajirao was

employed as driver on the dumper vehicle, bearing

registration No. MH-18/E7190 owned by original

respondent No. 1 Mahendra Agrawal. it is undisputed

that the dumper vehicle was insured with the appellant

at the relevant time. There is also no dispute about the

fact that deceased Bajirao suffered massive heart-attack

while he was driving the dumper vehicle on 04-06-2005 at

about 8.30 a.m. during return journey from Shahada. He

was shifted to a hospital without loss of much time. He

died at around 10 a.m. whilst under the medical

treatment in the hospital. The police station at

Shahada was informed regarding death of Bajirao. An

inquest panchanama was drawn. The dead-body of Bajirao

was subjected to post mortem examination.

5. Briefly stated, case of the claimants was that

deceased Bajirao was assigned work to transport coolies

from village Lonkheda to the place of work. He was

discharging the duty assigned by the Master. He

received the heart-attack during course of employment

when the dumper vehicle reached near village Maloni. He

used to earn salary of Rs. 1750/- p.m. He was aged

about 40 years at the relevant time. Consequently, the

claimants, who are widow and son of deceased Bajirao,

sought compensation of Rs. 3,22,297/- by applying the

relevant factor i.e. 184.17.

6. The application was resisted by original

respondent No. 1 (owner) and the appellant. They denied

truth into the material averments made by the claimants.

They categorically denied that Bajirao died during

course of the employment. They submitted that death of

Bajirao was due to the reasons which had no nexus with

the nature of employment. The appellant further

asserted that the owner of the vehicle committed breach

of the terms of the Insurance Policy and as such, there

was no legal liability to indemnify the claims.

Consequently, the appellant sought dismissal of the

applications.

7. The learned Workmen's Compensation

Commissioner/Civil Judge (S.D.) held that deceased

Bajirao died during course of employment with original

respondent No.1. The Commissioner further held that

deceased Bajirao was earning Rs. 1000/- p.m. and died of

heart-attack while he was discharging the duty assigned

by the employer. Hence, initially, the interim

application was granted and compensation of Rs. 50,000/-

as provided under section 140 read with section 143 of

the Motor Vehicles Act, 1988, was awarded. On merits of

the matter, when the final adjudication was rendered,

the learned Commissioner awarded Rs. 86,260/- with

future interest at rate of 9 per cent P.A. in favour of

the claimants, as stated earlier, taking view that the

death occurred during course of the employment.

8. Heard learned counsel for the parties.

9. Question of significance is :

"Whether death of Bajirao had any casual

connection with the nature of his employment as

such and, therefore, the appellant and owner of

the vehicle could be fastened with liability of

the compensation under section 4 read with

Schedule-IV of the Workmen's Compensation Act,

and/or the interim compensation as awarded ?"

10. The pleadings of the claimants do not show any

reference to stress and strain which was result of the

nature of work assigned to deceased Bajirao. The

claimants simply alleged that his death occurred during

course of the employment. It is worthy to be noted that

the pleadings of the claimants do not show as to how

there was any casual connection between death of Bajirao

and the nature of his work as a driver of the dumper

vehicle. It is nobody's case that Bajirao was being

required to drive the dumper vehicle No. MH-18/E7190

under odd circumstances. No medical opinion was sought

in order to prove nexus between the work of driving the

dumper vehicle and the heart-attack suffered by Bajirao

during the transit. In other words, the claimants did

not plead the facts pertaining to cause and effect. The

fall-out of peculiar nature of work given tot he

workman, if can be considered as cause of his death,

then the interconnection between his death and the

nature of work may be identified. In the peculiar facts

of the present case, there is nothing in the pleadings

of the claimants to show that due to nature of the work,

deceased Bajirao suffered the heart-attack during the

transit in the relevant morning.

11. Coming to oral evidence of the claimants, it

may be gathered that PW1 Shobhabai was unable to locate

as to how Bajirao suffered the heart-attack. She admits

that Bajirao suffered heart-attack in the hospital and

died at about 11.00/11.30 a.m. in the morning of 4th

June, 2005. It is conspicuous from cross-examination of

PW2 Shivaji that Bajirao had suffered mild heart-attack

on one/two occasions in the past. He admits,

unequivocally, that Bajirao was obtaining treatment from

medical practitioner due to the heart trouble. He

further admits that Bajirao used to work as driver on

daily wages. So, it is explicit that Bajirao had

suffered one/two mild heart-attacks prior to the date of

the incident. It is also clear that he was not employed

on monthly salary basis but engaged on daily wages by

the owner of the dumper vehicle. Beyond the above two

oral witnesses, there is no material on record to infer

that Bajirao died during course of the employment. What

appears from the record is that he was already suffering

from heart-disease and was taking medical treatment

before the date of the incident. There is absolutely

nothing on record to show that original respondent No. 1

(owner of the vehicle) was aware about the prior health

problem of Bajirao. It has come on the record that

Bajirao was working with some other persons prior to his

employment wit the owner of the dumper vehicle.

Needless to say, it can not be assumed that due to

hectic schedule of work assigned to him by the owner of

the dumper vehicle, heart-disease was aggravated.

12. The claimants failed to establish that Bajirao

received massive heart-attack during the course of his

employment. As stated before, medical expert was not

examined to prove that Bajirao could have suffered

stress and strain as a result of the hectic schedule of

heavy motor vehicle driving. Moreover, when the

evidence shows that he had already suffered 1/2 heart-

attacks prior to the date of incident, it cannot be said

that driving of the dumper vehicle in the relevant

morning was a contributory factor which resulted into

the massive heart-attack and consequently, death of

Bajirao.

( 10 )

13. The Apex Court in "Shakuntala Chandrakant

Shreshti v. Prabhakar Maruti Garvali and another" (AIR

2007 S.C. 248), held :

"Circumstances must exist to establish that

death was caused by reason of failure of heart

was because of stress and strain of work.

Stress and strain resulting in a sudden heart

failure in a case of the present nature would

not be presumed. No legal fiction therefor

can be raised. As a person suffering from a

heart disease may not be aware thereof,

medical opinion therefore would be of

relevance. Each case, therefore, has to be

considered on its own fact and no hard and

fast rule can be laid down therefor."

14. In "Jyothi Ademma v. Plant Engineer, Nellore

and another" (AIR 2006 S.C. 2830), the Apex Court, in

somewhat similar situation, held that death of the

workman could not be said to have been caused by any

( 11 )

accident arising out of and in course of his employment.

The workman had died due to heart-attack at the working

place. However, his job was only to switch on or off

and there was no scope for any stress or strain in his

duties. The mere fact that death did occur while

discharging the duty cannot be termed as an accident

arising out of and in course of his employment. The

interpretation of section 3 (1) of the Workmen's

Compensation Act needs to be done in consonance with the

language used in sub-clause (1). The expression "by

accident arising out of and in the course of employment"

as used in sub-section (1) of section 3 would make it

amply clear that the nature of the work ought to be

shown as cause of the death, directly or indirectly, and

there must be some inter-connection between them.

Obviously, without legal proof regarding contribution of

the death of Bajirao due to nature of his work given by

the employer, it cannot be said that the employer and

the insurer are liable to indemnify the claims. For the

same reasons, they were not liable to pay the interim

compensation awarded by the learned Workmen's

Compensation Commissioner to the claimants. This Court

( 12 )

in "New India Assurance Co. Ltd. v. Nirmalabai w/o

Rajaram Gosavi and others" 2008 (6) Mh.L.J. 587, held

that no interim order can be passed by the Commissioner

directing the opponents to pay interim or ad hoc

compensation when the accident did not arise due to use

of the motor vehicle. In other words, when the

provisions of "no fault liability" under section 140 of

the Motor Vehicles Act cannot be invoked, in the

peculiar circumstances of the present case, the interim

compensation could not be awarded by the learned

Workmen's Compensation Commissioner.

15. For the reasons aforestated, I am of the

opinion that the learned Workmen's Compensation

Commissioner committed patent error while allowing the

application for interim compensation as well as the main

application filed by the claimants. Hence, both the

appeals are allowed. The impugned judgements and orders

are set aside. The statutory deposit amount or any

other amount deposited by the appellant be refunded to

it. No costs.

( 13 )

16. In view of disposal of first appeals, civil

application No. 7273/2007 (in First Appeal No.

1228/2007) does not survive and hence, stands disposed

of accordingly.

                        ig                       [ V.R. KINGAONKAR ]
                                                        JUDGE  

    NPJ/fa1228-07-735-09