Gujarat High Court
Group General Manager vs Nitaben Wd/Oashokbhai ... on 18 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2655 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting No Yes
No
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GROUP GENERAL MANAGER
Versus
NITABEN WD/OASHOKBHAI PANNALALJAIN(SINCE DECEASED
THRO' L/H. & ORS.
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Appearance:
MR AJAY R MEHTA(453) for the Appellant(s) No. 1
MR CHIRAG B PATEL(3679) for the Defendant(s) No. 1.1,1.2,1.3
MS RUPAL K THAKORE(6188) for the Defendant(s) No. 1.1,1.2,1.3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 18/06/2025
ORAL JUDGMENT
1. Present appeal is filed by the appellant under Section 30 of
the Workmen Compensation Act, 1923 (hereinafter be referred
to as "the Act") challenging the impugned judgment and award
dated 21.05.2010 passed by the learned Commissioner for the
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Workmen's Compensation, Labour Court, Bharuch in Workmen's
Compensation (Fatal) Case No. 4 of 2007 whereby the learned
Commissioner has allowed the claim petition filed by the legal
heir of deceased Ashokbhai Pannalal Jain - original claimant and
directed the appellant to pay the compensation to the tune of
Rs.2,99,340/- along with interest at the rate of 12% from the
date of accident and also directed to pay 50% penalty i.e.
Rs.1,49,670/-.
2. Brief facts of the present case are that one Ashokbhai
Pannalal Jain was working as assistant foreman (auto) in
Ankleshwar Project with the appellant. That the said Ashokbhai
waited for but on 10.10.2002 at about 8.00 a.m. along with other
co-workers at Ramvatika Bus Stand for going to the plant, where
he was suddenly fainted and then he was taken to the Civil
Hospital at Bharuch. That the doctor of Civil Hospital, Bharuch
has declared the said workman as died. The legal heir of the said
Ashokbhai has preferred the aforesaid application before the
learned Commissioner, which came to be allowed and awarded
compensation.
3. Being aggrieved and dissatisfied with the impugned
judgment and award, the appellant has preferred the present
appeal.
4. Mr.Ajay Mehta, learned counsel appearing for the appellant
has submitted the same facts which are narrated in the memo of
appeal and has submitted that one Ashokbhai Pannalal Jain was
working as assistant foreman (auto) in Ankleshwar Project with
the appellant. He has submitted that while the said Ashokbhai
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coming to the work place, he waited for bus on 10.10.2002 at
about 8.00 a.m. along with other co-workers at Ramvatika Bus
Stand, where he was fainted and then he was taken to the Civil
Hospital at Bharuch. He has submitted that the doctor of Civil
Hospital, Bharuch has declared said Ashokbhai as died and,
thereafter, the postmortem was performed of the said workman
and he was died because of cardio respiratory failure due to
myocardia infection. He has submitted that the respondent -
original applicant has failed to establish that there was any
nexus with the death as it was shown in the application that due
to heavy work pressure the deceased died. Mr.Mehta, learned
counsel has emphasized upon the provision of Section 3 of the
said Act, which reads as under:-
"3. Employer's liability for compensation.-- (1) If personal
injury is caused to [an employee] by accident arising out of
and in the course of his employment, his employer shall be
liable to pay compensation in accordance with the
provisions of this Chapter:
Provided that the employer shall not be so liable -
(a) in respect of any injury which does not result in the
total or partial disablement of the employee for a period
exceeding three days;
(b) in respect of any injury, not resulting in death or
permanent total disablement caused by an accident which
is directly attributable to -
(I) the employee having been at the time thereof under
the influence of drink or drugs, or
(ii) the wilful disobedience of the employee to an order
expressly given, or to a rule expressly framed, for the
purpose of securing the safety of employees, or
(iii) the wilful removal or disregard by the employee of
any safety guard or other device which he knew to have
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been provided for the purpose of securing the safety of
[employee],
[(2) If [an employee] employed in any employment
specified in Part A of Schedule III contracts any disease
specified therein as an occupational disease peculiar to
that employment, or if [an employee], whilst in the service
of an employer in whose service he has been employed for
a continuous period of not less than six months (which
period shall not include a period of service under any other
employer in the same kind of employment) in any
employment specified in Part B of Schedule III, contracts
any disease specified therein as an occupational disease
peculiar to that employment, or if [an employee] whilst in
the service of one or more employers in any employment
specified in Part C of Schedule III for such continuous
period as the Central Government may specify in respect of
each such employment, contracts any disease specified
therein as an occupational disease peculiar to that
employment, the contracting of the disease shall be
deemed to be an injury by accident within the meaning of
this section and, unless the contrary is proved, the accident
shall be deemed to have arisen out of, and in the course of,
the employment:
Provided that if it is proved,-
(a) that [an employee] whilst in the service of one or
more employers in any employment specified in Part C of
Schedule III has contracted a disease specified therein as
an occupational disease peculiar to that employment
during a continuous period which is less than the period
specified under this sub-section for that employment; and
(b) that the disease has arisen out of and in the course of
the employment,the contracting of such disease shall be
deemed to be an injury by accident within the meaning of
this section:
Provided further that if it is proved that an employee who
having served under any employer in any employment
specified in Part B of Schedule III or who having served
under one or more employers in any employment specified
in Part C of that Schedule, for a continuous period specified
under this sub-section for that employment and he has
after the cessation of such service contracted any disease
specified in the said Part B or the said Part C, as the case
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may be, as an occupational disease peculiar to the
employment and that such disease arose out of the
employment, the contracting of the disease shall be
deemed to be an injury by accident within the meaning of
this section.
[(2A) If [an employee] employed in any employment
specified in Part C of Schedule III contracts any
occupational disease peculiar to that employment, the
contracting whereof is deemed to be an injury by accident
within the meaning of this section, and such employment
was under more than one employer, all such employers
shall be liable for the payment of the compensation in such
proportion as the Commissioner may, in the circumstances,
deem just.]
[(3)] [The Central Government or the State Government,
after giving, by notification in the Official Gazette, not less
than three months' notice of its intention so to do, may, by
a like notification, add any description of employment to
the employments specified in Schedule III and shall specify
in the case of employments so added the diseases which
shall be deemed for the purposes of this section to be
occupational diseases peculiar to those employments
respectively, and thereupon the provisions of sub-section
(2) shall apply , in the case of a notification by the Central
Government, within the territories to which this Act
extends or, in case of a notification by the State
Government, within the State] as if such diseases had been
declared by this Act to be occupational diseases peculiar to
those employments.]
(4) Save as provided by sub-sections (2), (2A) and (3) no
compensation shall be payable to an employee in respect
of any disease unless the disease is directly attributable to
a specific injury by accident arising out of and in the course
of his employment.
(5) Nothing herein contained shall be deemed to confer
any right to compensation on an employee in respect of
any injury if he has instituted in a Civil Court a suit for
damages in respect of the injury against the employer or
any other person; and no suit for damages shall be
maintainable by an employee in any Court of law in respect
of any injury -
(a) if he has instituted a claim to compensation in respect
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of the injury before a Commissioner; or
(b) if an agreement has been come to between the
employee and his employer providing for the payment of
compensation in respect of the injury in accordance with
the provisions of this Act."
4.1 Mr.Mehta, learned counsel has submitted that there was no
casual connection between the incident and the employment
which could be established and, therefore, the learned
Commissioner has committed grave error in allowing the
application and in awarding the compensation along with the
interest and penalty. He has submitted that unless and until, the
liability to pay the compensation is established against the
employer till that moment there was no question of paying any
penalty or interest. He has submitted that in the present case,
prima facie respondent herein has failed to prove the direct
nexus with the incident of death to the work pressure and,
therefore, the impugned award deserves to be quashed and set
aside. Mr.Mehta, learned counsel has relied upon the decisions of
the Hon'ble Supreme Court in the case of Shakuntala
Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and
another reported in (2007) 11 SCC 668 wherein the Hon'ble
Supreme Court has held and observed in paras 19 and 24 as
under:-
19. Sufferance of heart disease amongst young persons is
not unknown. A disease of heart may remain undetected. A
person may suffer mild heart attack but he may not feel
any pain. There must, thus, be some evidence that the
employment contributed to the death of the deceased. It is
required to be established that the death occurred during
the course of employment.
24. There is a crucial link between the causal connections
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of employment with death. Such a link with evidence
cannot be a matter of surmise or conjecture. If a finding is
arrived at without pleading or legal evidence the statutory
authority will commit a jurisdictional error while exercising
jurisdiction."
4.2 Mr.Mehta, learned counsel has submitted that an accident
may lead to death but an accident had taken place must be
proved. He has submitted that in the present case, there was no
any cogent and relevant material come on record that due to
stress and strain arising during the course of employment
because he was working as a foreman in auto section and,
therefore, nature of employment is not directly or indirectly
caused any stress and strain and as it was not proved before the
concerned Court, the learned Commissioner, without considering
the prima facie aspects, has committed an error of facts and law
in passing the impugned judgment and award and exceeded
jurisdiction vested with him. He has submitted that unless
evidence is brought on record to elaborate that the death of
cardiac arrest has occurred because of stress or strain, the
learned Commissioner would not have jurisdiction to grant
damages. In fact the burden to prove prima facie case and these
jurisdictional facts, the claimant was bound to prove
jurisdictional fact before the Commissioner and unless those
jurisdictional facts are found, the Commissioner will have no
jurisdiction to pass an order of awarding any damages or
compensation. He has submitted that it is now well-settled that
for arriving at a conclusion of a jurisdictional fact to prove the
case, 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.
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He has submitted that for the said purpose, the statutory
authority is required to pose unto himself the right question and,
therefore, the learned Commissioner has completely ignored
such aspects while arriving at conclusion and awarding the
amount of compensation in favour of the respondents. According
to Mr.Mehta, learned counsel, unless and until the liability is
decided there is no question to pay any penalty and therefore
50% penalty as awarded is irrational, illegal and unjust and the
same deserves to be quashed and set aside. So far as the
interest awarded by the learned Commissioner from the date of
accident instead of date of award is concerned, Mr.Mehta,
learned counsel has referred to and relied upon the decision of
the Hon'ble Supreme Court in the case of U.P.S.R.T.C. Now
Uttarakhand Transport Corporation Vs. Satnam Singh
reported in (2011) 14 SCC 758 wherein the Hon'ble Supreme
Court has considered the said issue that the compensation falls
due on the date on which claim is adjudicated and, therefore, the
direction given to the appellant to pay interest from the date of
accident is absolutely illegal and unjust. He has urged to allow
the present appeal and to quash and set aside the impugned
judgment and award passed by the learned Commissioner.
5. Per contra, Mr.Chirag Patel, learned counsel appearing for
the respondent - claimant has submitted that the impugned
judgment and award passed by the learned Commissioner is just
and proper. He has submitted that the deceased was working
with the appellant for more than 25 years and it is in
continuation of process and because of the work pressure and
strain the deceased was died because of cardiac respiratory
failure due to myocardia infection, which is due to nature of work
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and stress during the course of his employment and died at the
age of 52 years. He has submitted that the deceased was sole
breadwinner of his family and since he was proceeded to attend
his work and reached at the bus stand and while he was standing
along with other coworkers waiting for the staff bus he suffered
this cardiac arrest and when he was taken to the civil hospital
where he declared died so he was not survived for treatment and
died on the spot. He has submitted that it is psychological impact
arrived at to person to person that stress level and strain is
suffered by the workmen dependent upon their nature of
psychological impact sustained the stress and strain and,
therefore, it cannot be said that there was no nexus and the
appellant has not proved the case and, therefore, the appeal
being meritless deserves to be dismissed.
6. Having heard learned counsel appearing for the respective
parties and considered the facts and circumstances of the case
and material placed on record as well as perused the impugned
judgment and award, it transpires that the issue involved in the
present appeal is that the respondents herein have lost their
breadwinner of the family, who expired because of the severe
cardiac arrest. There is no different opinion than the conclusion
arrived at by the Hon'ble Supreme Court in the case of
Shakuntala Chandrakant Shreshti (supra) and this Court is
abide by the said decision. In the present case, except the
medical evidence, no further evidence on record which leads this
Court to take different view that the death of the deceased was
not occurred due to stress and strain arising during the course of
employment because the deceased was going for attending the
work, who was standing at the bus stand for staff bus with other
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co-workers and except this there is no further evidence.
6.1 So far as the contention with regard to implication of
Section 3 of the Act is concerned, on perusal of the impugned
judgment and award, I am unable agree with the contention of
Mr.Mehta, learned counsel with regard to the incident / accident
in question is concerned.
6.2 So far as the liability of the employer to pay the
compensation is concerned, I am in complete agreement with
the ratio laid down by the Hon'ble Supreme Court considering
the fact that the incident occurred on 10.10.2003 and almost 23
years have been passed. In view of the aforesaid fact, I am of the
opinion that the amount of compensation awarded by the
learned Commissioner is to be paid to the claimants No.1/1 to
1/3.
6.3 So far as contention with regard to the penalty is
concerned, I am of the opinion that the same is required to be
considered and, therefore, the amount towards the penalty is not
to be paid to the claimants.
6.4 So far as the contention with regard to the interest is
concerned, now it is well settled that the amount of interest is
not to be paid from the date of accident, but it is to be paid from
the date of award till the its realization and as per the decision of
the Hon'ble Supreme Court in the case of U.P.S.R.T.C. Now
Uttarakhand Transport Corporation (supra), the interest at
the rate of 12% awarded by the learned Commissioner is to be
paid from the date of award and not from the date of accident.
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6.5 In the present case, there was no material on record that
the deceased was having pre-existence of the cardiac ailment.
Even the same was also not the case that the deceased was
suffering ailment prior to the date of death of similar kind or any
heart ailment and there was no evidence on record and,
therefore, except the medical opinion, there was no other
relevant or cogent evidence providing any guidelines to the
Court in this behalf. In fact, the circumstances must be exceeded
to establish direct nexus that the death was caused by stress or
strain of work which result in sudden heart failure. Even the
nature of the duty of the deceased was of a helper; per say that
the duty could not be as such would cause stress or strain as
stated by the claimants. If the additional duty was required to be
performed by the deceased, which was required to be stated,
however, the same was not stated or there was no evidence on
record, under such circumstances, the contention raised by
Mr.Mehta, learned counsel is having some force. But looking to
the peculiar facts of the case, this Court is not interfered with the
amount of compensation.
7. So far as the penalty and the interest are concerned, I am
in complete agreement with the contention raised by Mr.Mehta,
learned counsel and, therefore, the present appeal is only qua
the penalty and interest and the same is modified to the extent
that except the amount of compensation with 12% interest from
the date of award, the amount of interest from the date of
accident till the date of award, the respondents are not entitled
to the same and the difference of amount, if any, is to be
refunded to the present appellant. So far as the applicability of
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Section 30 of the Act qua maintainability is concerned, the
jurisdictional question will involve a substantial question of law
and the finding of fact arrived at by the learned Commissioner
without there being any evidence would also give rise to
substantial question of law from the date of award passed by the
learned Commissioner. It appears that there was no any cogent
evidence while arriving at the correct findings that the job is any
of stress or strain where it was merely stated that the deceased
was working as foreman in auto section and due to work
pressure the deceased suffered the cardiac arrest and the
postmortem report is concerned, the cause of death was
mentioned by the doctor is that due to cardiac respiratory failure
meaning thereby that there is specific ailment prior to the date
of occurrence, which fact is established and though this fact was
not considered by the learned Commissioner, itself a substantial
question of law.
8. Considering the facts and circumstances of the case, I am
of the opinion that the appeal is required to be entertained for
the reasons and finding recorded is on the basis of material
availability before the Court.
9. In the result the appeal is allowed in part. The impugned
judgment and award passed by the learned Commissioner is
modified to the extent that the amount of compensation remains
as it is. So far as the liability to pay the penalty is concerned, the
same is hereby quashed and set aside. So far as the entitlement
of the interest by the claimants from the date of accident /
incident is concerned, the same is modified to the extent that
the interest is paid to the claimants from the date of award till its
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realization. The amount deposited by the appellant before the
learned Commissioner towards compensation shall be paid to the
claimants forthwith after verifying their bank details through
RTGS. So far as the amount towards penalty is concerned, if it is
kept in Fixed Deposit, the same shall be refunded to the
appellant with accrued interest thereon. The amount of interest
shall be calculated from the date of award till its realization and
not from the date of accident. Registry is directed to transmit
back the record and proceedings of the case to the concerned
Court forthwith. Direct service is permitted.
Pending civil application/s, if any, shall stand disposed of
accordingly. Interim relief, if any, granted earlier stands disposed
of.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
