Gujarat High Court

Zaverbhai Alubhai Rathwa vs Samirkumar Hasmukhlal Shah on 9 July, 2025

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                                C/FA/269/2020                                      ORDER DATED: 09/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                  R/FIRST APPEAL NO. 269 of 2020

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                                                ZAVERBHAI ALUBHAI RATHWA & ANR.
                                                              Versus
                                                  SAMIRKUMAR HASMUKHLAL SHAH
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                       Appearance:
                       MR K R MISHRA(6312) for the Appellant(s) No. 1,2
                       PRABHATSINH J PARMAR(7996) for the Appellant(s) No. 1,2
                       RULE SERVED for the Defendant(s) No. 1
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                          CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                          Date : 09/07/2025

                                                            ORAL ORDER

1. The present appeal has been preferred by

appellant-original claimants against the judgment and

order dated 22.05.2019 passed by learned

Commissioner (J.D.), Workman Compensation Act,

Labour Court No. 2, Godhara in Workmen

Compensation (Fatal) Application No.1 of 2024

(original Workmen Compensation Application no.56 of

1997), whereby learned Commissioner had dismissed

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the claim application.

2. Heard learned advocate Mr. K. R. Mishra for the

appellants. Though served, none appeared for and on

behalf of respondent.

Brief facts of the case are as under:

1. Deceased, Baijiben Zaverbhai Rathwa, was

working as a labourer at the construction site owned

by the respondent-trust. The nature of the work of

deceased was that of a daily wager. On 23.3.1995 at

around 11 am while shifting the iron rods from the

terrace, the iron rod came in contect with a live

electric wire and because of the electric shock,

deceased got burns. She was shifted to Halol Referral

Hospital for treatment and on 28.03.1995 she passed

away. The claim application came to be filed by the

legal heirs of deceased for claiming compensation

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under the Act. Upon service of notice opponent-

present respondent appeared and filed written

statement at Exh-54 and contested the claim

application. The claimant no.1, husband of deceased

filed examination-in-chief at Exh-20 and 48

respectively, copy of complaint of janvajog entry at

Exh-21 and copy of PM report at Exh-22 were

produced by claimants in support of claim

application. The claimants also produced other

documentary evidences in support of their

contentions. Opponent examined at Exh-55 and

produced vouchers of payment. After considering the

evidence on record, the learned Commissioner

rejected the claim application.

Being aggrieved and dissatisfied with the

impugned judgment and order, claimants-appellants

have preferred this first appeal.

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2. Learned advocate for the appellant-claimant

submitted that the respondent is a registered trust

running B.M. English-Gujarati medium school. For the

construction of the school building, deceased was

employed as a labourer at the construction site.

Deceased was required to bring bricks and cements at

the construction site and on 23.3.1995, at around 11

am in the morning when deceased was instructed to

remove iron rods lying on the terrace of the

construction site, iron rods came into contect with

the live electric wire lying on the terrace which

resulted into a spark and the deceased got burns. On

28.3.1995 during the treatment, deceased succumbed

because of the burn injuries.

3. It is contended that the janvajog entry was

registered on 25.3.1995 with Halol Police Station by

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one of the teachers of the school wherein it was

mentioned that complainant was informed that

deceased was holding an iron rod for striking

tamarind tree to get tamarind fruits. The learned

commissioner weighed this statement of complainant

in the janvajog entry and held that the accident has

not occurred during and in the course of employment

and therefore the claim application came to be

rejected.

4. It is contended that the oral evidence of

claimant recorded at Exh-20 and 48 respectively, has

gone unchallenged as no cross-examination was done

on a factual aspect which has been stated by

claimant no.1 in his examination-in-chief. The

secretary of the opponent no.1 has been examined at

Exh-77 and there is no case made out by the

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opponent in the examination-in-chief that the

deceased was holding an iron rod for striking

tamarind tree to get tamarind fruits. The post-

mortem report which is placed on record at Exh-22

also narrates the cause of death. The cause of death

is electrical burns. Learned advocate for the appellant

has relied upon a decision in the case of United India

Insurance Company Limited versus Madhuben, widow

of Rameshbhai Ishwarbhai Patel, reported in 2009 (2)

GLH 738. It is submitted that in order to succeed in

a compensation application filed under Section 3 of

the act, the claimant has to establish that there must

be an injury, the injury should be caused in an

accident and it should be caused in the course of

employment. In the present case, as per the

submission of learned advocate for the appellant, all

the three aforesaid basic mandatory requirements

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have been established by claimants and there is no

contrary evidence to rebut the factors which are

proved by the claimants.

5. It appears from the record that though the

notice of the appeal has been served upon

respondent, no one has remained present to contest

the appeal on behalf of respondent.

6. I have considered the submission of learned

advocate for the appellant and also perused original

Record and Proceedings. The fact surfaces on record

is that on 23.03.1995 while removing iron rods from

the terrace, where construction activity was going on,

live electric wire lying on the terrace got touched

with the iron rod which resulted into spark. Due to

the burn injuries, deceased expired on 28.3.1995

during treatment. While rejecting the claim

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application, learned Commissioner has given undue

weightage on a janvajog entry produced at Exh-21

dated 25.3.1995 wherein the teacher of the

respondent school on a hearsay version reported that

the deceased was striking tamarind tree with iron rod

to get tamarind fruit and deceased got burnt due to

electric current pass through iron rod. The said

complainant, Hiteshkumar Mafatlal Bhavsar has not

been examined by the respondent. There is no

eyewitness to the happening of the accident. The

secretary of the respondent in his cross-examination

recorded at Exh-77 has also admitted the fact that he

has not seen the deceased striking tamarind tree with

iron rod and such statement is made on the say of

someone else. It is also a specific case made out by

the claimant in the claim application as well as in

the examination-in-chief that the contents of the

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janvajog entry are not admitted and the happening of

the incident which has been narrated in janvajog

entry, are false. The janvajog entry is registered on

25.3.1995. The evidence of claimant has remained

unchallenged in absence of any rebuttal evidence with

regard to the happening of the accident, the oral

evidence of the claimants and the statement made in

the claim application are to be believed.

7. The claim application under Workmen's

Compensation Act are benevolent legislation and

merely because opponent could not establish their

assertion of defense, the claimants cannot be non-

suited. The post-mortem report produced at Exh-22

also indicates that the cause of death is due to burn

injuries. Therefore, there is no reason to disbelieve

the fact that the employee did not die during the

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course of employment. In the case of United India

Insurance Company Limited (supra), the Coordinate

Bench of this Court in para 9 has referred the

decision of Makinan Makinji and Company Limited

versus Ibrahim Mahammad Isaq, reported in AIR 1970

SC 1906= 1970 Lab.I.C. 1413:

"The Commissioner has rightly considered aforesaid decision of this Court that driver died because of one girl had come against his bus and all of sudden, he had to apply break and therefore, due to high blood pressure, he died. In the present case, deceased received burns injuries and therefore, he received cardiac arrest which consider to be an accident and it was held that claimants are entitled compensation. The Commissioner has also considered one decision of Apex Court in case of Makinan Makinji and company limited v. Ibrahim Mahmmad Isaq reported in AIR 1970 SC 1906 = 1970 Lab.I.C. 1413. The relevant observation is quoted as under : "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

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conditions, its obligation and its incidents. If by reason of any those factors the workman is brought within the zone 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."

The Commissioner has also considered one more decision reported in 1992 Lab.I.C. 1182 in case of Hindustan Steel Construction Ltd. v. Nuresha Matun, where, Patna High Court has held that in accident, it is not always require injury on outside part of body, but, it can be considered to be an internal injury like heart attack and therefore, if heart attack received by employee during employment, then, it could consider to be an accident and it cannot be considered to be a natural death under the provisions of Section 3 of the Workmen's Compensation Act. Therefore, in the present case, considering the evidence on record and as per postmortem report also, there was burns injury on body. As per Serial No.11 of postmortem report, it has been specifically made clear by Doctor that Rameshbhai was died while working in electric department during recess period due to electric shock having internal injury of cardiac arrest and postmortem report suggests that his entire body was fridge and having burns injury upto 15% - 17% and also having some injuries on head as per Serial No.19(3) and Serial No.20('G') and20('T') suggests a condition of body of Rameshbhai. After death narrated in postmortem report suggests that aforesaid congestion mentioned in postmortem report as referred above, it cannot consider to be a natural death, but, he died because of receiving electric shock during recess period and his skin was also damaged due to electric shock. At the time when he died, he was alive and received electric shock and due to that internal injury which considered as cardiac arrest, therefore, employee Rameshbhai died while falling down on pipe which received burns injury on back side."

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8. In the wake of above discussion and considering

the facts of the present case, in my opinion, learned

Commissioner has committed an error by giving

undue weightage on janvajog entry given by a person

who has not seen the accident occurred and wrongly

held that the accident has not occurred during the

course of employment. Therefore, this First Appeal is

allowed. The judgment and order dated 22.05.2019

passed by learned Commissioner is hereby quashed