Bombay High Court
Bajaj Allianz General Insurance ... vs Bashabee Abdul Shaikh And Ors on 31 January, 2018
Bench: M.S. Sonak
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ca376917.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL ST.NO.4635 OF 2017
01 Bajaj Allianz General Insurance Company
Limited, through its Authorized
Signatory/Branch Manager, Office at:
Kothari Complex, Shivaji Nagar,
District Nanded.
02 Bajaj Allianz General Insurance Company
Limited, through its Authorized
Signatory/Branch Manager, Office at:
Laaxmi Complex, 1st Floor,
Near Big Bazar, Chinchwad,
Pune-411 019.
Rajendra Bhavan, 1st floor, Near LIC
Office, Adalat Road,
Aurangabad-431 001. Appellants
Versus
01 Bashabee Abdul Shaikh,
age: 51 years, Occ: Household,
02 Abdul Imam Sab Shaikh,
age: 56 years, Occ: Nil,
Both R/o Pimpalgaon, Tq.Loha,
District Nanded.
03 Allied Resources Management
Services India Pvt.Ltd.,
through its Authorized Signatory,
Regd. Office at: 27, 36,
Sai Venkatesh Trade Center,
2nd Floor, Pune-Nashik Highway,
Bhosari, Pune-411 039.
04 Shahenaz Sattar Shaikh,
age: 20 years, Occ: Household,
for herself and for respondent no.5,
R/o Phool Kalas, Tq. Purna,
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District Parbhani.
05 Sahil Sattar Shaikh,
minor, U/g of real mother
respondent no.4, R/o Phool Kalas,
Tq. Purna, District Parbhani. Respondents
Mr.S.G.Chapalgaonkar, advocate for the appellant
Mr.M.S.Adate, advocate holding for Mr.N.L.Jadhav, advocate for
Respondents No.4 and 5.
Mr.S.S.Rathi, advocate holding for Mr.Girish Rane, advocate for
Respondent No.3.
CORAM : M.S.SONAK, J.
DATE : 31st January, 2018.
ORAL JUDGMENT :
1 Heard Mr.Chapalgaonkar, learned Counsel for the
appellant. He submits that in this case, the workman has
admittedly died of a heart attack which he suffered at his place of
employment. He submits that, however, there is absolutely no
evidence on record to suggest that there was any connection with
discharge of duties by the workman and the eventual death. He
submits that merely because the death by heart attack had taken
place at the place of employment, that, by itself, does not mean
that the death is out of any accident arising out of and in the
course of employment. He submits that in this case, there was
absolutely no medical evidence to suggest that the employment of
the workman had any connection with the workman suffering
heart attack. He submits that this raises a substantial question of
law as to whether the death, in the present case, can be said to
have taken place out of any accident arising out of and in the
course of employment of the workman.
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2 From perusal of the impugned judgment and order, it
is seen that the workman concerned died at the work site on
account of massive heart attack which he had suffered. The
workman was discharging the duties as a Fork Lift driver/operator.
He was functioning on a holiday. From the evidence on record, it is
disclosed that there was burden of work and, therefore, the
employees were requested to work on holiday. The Commissioner
has considered not only the evidence of the claimants but also
considered police papers and medical opinion produced on record
by the claimants. The Commissioner has applied the principles
laid down by the Hon'ble Supreme Court in the case of Regional
Director, ESI Corporation Vs. Francis D. Costa, 1996 (6) SCC 1.
In this case, the Supreme Court has held that there must be a
casual connection between the injury and the accident and the
accident and the work done in the course of employment. The
Supreme Court has also held that such matters are to be
considered on the basis of preponderance of probabilities.
3 In the facts of the present case, as have been
discussed by the Commissioner, it cannot be said that the finding
recorded by the Commissioner is vitiated by perversity or even
there was any error of law. In an appeal of this nature, it is not
appropriate to re-evaluate or re-assess the evidence because, the
Legislature has made it clear that the appeals under this
enactment are to be entertained only if there is substantial
question of law. The contentions raised are to have a re-look at the
evidence or to re-assess the evidence with a view to arrive at some
different finding. As noted earlier, this is not a case of 'no
evidence'. The circumstances surrounding the unfortunate demise
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of the employee have been assessed by the Commissioner. The
principles of law laid down by the Hon'ble Supreme Court in
Francis D. Costa (supra) have been adhered to. Accordingly, the
present appeal does not raise any substantial question of law.
4 The appeal is, therefore, dismissed. There shall be no
order as to costs. Pending C.A. No.3770/2017 does not survive
and stands disposed of. In view of dismissal of the appeal, Civil
Application No.1299/2018 taken out by the claimants for
withdrawal of compensation amount, is hereby allowed.
5 At this stage, learned Counsel for the appellants seeks
for a stay of execution of the judgment and order made by the
Commissioner, since, the appellants will take recourse to further
remedies available in law. Accordingly, Commissioner's order is
stayed for a period of six weeks from today.
(M.S.SONAK)
JUDGE
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ca376917.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.3769 OF 2017 IN
FIRST APPEAL ST.NO.4635 OF 2017
Bajaj Allianz General Insurance Company
Limited Applicant
Versus
Bashabee Abdul Shaikh & others Respondents
Mr.S.G.Chapalgaonkar, advocate for the applicant
Mr.M.S.Adate, advocate holding for Mr.N.L.Jadhav, advocate for
Respondents No.4 and 5.
Mr.S.S.Rathi, advocate holding for Mr.Girish Rane, advocate for
Respondent No.3.
CORAM : M.S.SONAK, J.
DATE : 31st January, 2018.
P.C. :
For the reasons set out in the application, delay of 10
days in instituting the appeal is condoned.
Civil Application is disposed of.
(M.S.SONAK)
JUDGE
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