United India Insurance Company ... vs Smt Jabin Taj
2021 Latest Caselaw 5438 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 04TH DAY OF DECEMBER, 2021

                             BEFORE

            THE HON'BLE MR. JUSTICE E.S.INDIRESH

 MISCELLANEOUS FIRST APPEAL No.3825 OF 2013 (WC)

BETWEEN:

United India Insurance Company Limited
Ballal Circle
Mysuru-570 001
Chamarajapuram
Rep. by its Manager
Sri K Chandrashekar.
                                               ... Appellant

(By Sri B C Seetharama Rao, Advocate)

AND:

       1. Smt. Jabin Taj
          W/o late Mohammed Aleem
          Aged about 47 years

       2. Mr. Mohammed Mubasir Ahamed
          S/o late Mohammed Aleem
          Major in age

       3. Mr. Mohammed Iliyas
          S/o late Mohammed Aleem
          Major in age

         R1 to R3 are residing at
         Bunnymantapa 'C' Layout
         Mysuru-570 001.
         Also residing at No.235/23
         30th 'B' Cross, Thilakanagar
         4th Block, Jayanagar
                                   2


         Bengaluru-560 011.

      4. Smt. Sajiya Bhanu
         Major
         D/o Mohammed Nayeem
         No.179, 4th Cross,
         Udayagiri
         Mysuru-570 001.
         (Owner of Mini Lorry No.
         KA-07/2900)
                                                     ... Respondents

(By Sri Chethan B, Advocate for R1 to 3;
Sri Jagadeesh H T, Advocate for R4)

      This Miscellaneous First Appeal is filed under Section 30(1)
of Workmen's Compensation Act, against the judgment dated
25th February, 2013 passed in WCA/FC/34/2008 on the file of
the   Labour    Officer   and     Commissioner     for   Workmen
Compensation,      Mysuru     District,  Mysuru,     awarding    a
compensation of Rs.2,99,340/- with interest @12% per annum
from 02nd August, 2008 till the date of deposit.

      In this appeal arguments being heard, judgment reserved,
coming on for "Pronouncement Of Orders" this day, the Court,
delivered the following:

                          JUDGMENT

This appeal is preferred by the Insurance Company

challenging the judgment and award dated 25th February, 2013,

in WCA/FC/34/2008 on the file of Labour Officer and Workmen's

Compensation Commissioner, Mysore District, Mysore, (for short,

hereinafter referred to as the 'Tribunal'), questioning the liability.

2. For the sake of convenience, parties in this appeal are

referred to with respect to their status before the Tribunal.

3. Facts in nutshell are that, husband of the claimant

No.1-Mohammed Aleem, was working as a driver with the first

respondent and on 02nd July, 2008, at the instance of the first

respondent, while returning to Mysore after unloading the

vegetables at Bengaluru Vegetable market, the said Mohammed

Aleem noticed that the head light of the lorry was not working

properly and as such, as per the direction of the respondent

No.1, took the vehicle for repair at Naeem Garage and while

crossing the Road near Swagat Theatre, Tilaknagar, a Yamaha

bike hit the husband of the claimant No.1 and immediately he

was taken to Jayanagar Orthopedic Centre and later was taken

to Sagar Appollo Hospital for regular treatment, however, he

died on 05th July, 2008. It is the case of the claimants that the

deceased was working with the first respondent for a

considerable period and was drawing Rs.5,000/- as salary and

due to the death of the bread earner in the family, the claimants

have approached the Tribunal, seeking compensation.

4. On service of notice, respondents entered appearance.

Respondent No.1 contended that the deceased was working as

driver in lorry bearing No.KA-07-2900 and further contended

that the respondent No.2 has to indemnify the claimants.

Respondent No.2 entered appearance and filed detailed written

statement denying the averments made in the claim petition.

The Tribunal, after considering the pleadings on record,

formulated issues for its consideration. In order to prove the

claim petition, claimant No.1 was examined as PW1 and

examined the Doctor as PW2 and produced sixteen documents

and same were marked as Exhibits P1 to P16. No oral or

documentary evidence adduced on behalf of the respondents.

The Tribunal, after considering the material on record, by its

judgment and award dated 25th February, 20-13, allowed the

claim in part and awarded compensation of Rs.2,99,340/- with

interest as per the impugned order. Being aggrieved by the

impugned judgment and award, respondent-Insurance Company

has preferred this appeal.

5. This Court, by its order dated 04th March, 2021 has

formulated following substantial questions of law:

"(1) Whether the Commissioner acted perversely in making in making the Insurance Company liable to indemnify the insured even though the risk as contemplated under Section 143 read with Sections 140 and 147 of the Motor Vehicles Act, had not occurred?

2. Whether the order/award of the Commissioner is otherwise opposed to law and material evidence on record?"

6. I have heard Sriyuts B.C. Seetharama Rao, learned

counsel appearing for the appellant; Chetan B., learned counsel

appearing for respondents 1 to 3; and Jagadeesh, learned

counsel for respondent No.4.

7. Sri B.C. Seetharama Rao, learned counsel appearing for

the appellant contended that the claim made by the

respondent/claimants is nothing but a false claim and as such

disputed the occurrence of the accident itself. He further

contended that the appellant is not liable to indemnify the fourth

respondent as per Section 143 read with Section 140 and 147 of

the Motor Vehicles Act and therefore, he contended that the

impugned judgment and award passed by the Tribunal requires

to be set aside in this appeal.

8. Per contra, Sri Chetan B., learned counsel appearing for

the claimants submitted that the Tribunal, after considering the

material on record, arrived at the conclusion that the death of

husband of the claimant No.1 was due to negligence on the part

of the rider of the motorcycle and at that time, the husband of

claimant No.1 was working at the instance of the respondent

No.1 (respondent No.4 herein) and therefore, he placed reliance

on the judgment of the Hon'ble Apex Court in the case of PARAM

PAL SINGH v. NATIONAL INSURANCE COMPANY AND ANOTHER

reported in (2013)3 SCC 409; and in the case of NATIONAL

INSURANCE CO. LTD. V. RENUKAMMA reported in LAWS(KAR)-

2018-12-83 and accordingly sought for dismissal of the appeal.

Perusal of the record would indicate that the husband of claimant

No.1 met with an accident on 02nd July, 2008. In the wound

certificate at Exhibit P7, the cause of injury is shown as follows:

"RTA (place: near Swagath theatre road) hit by two-wheeler while crossing the road by walk".

9. Exhibit P5-Death Certificate issued by Sagar Apollo

hospital reveals that the husband of the claimant No.1 died on

05th July, 2008 due to IHD-Acute coronary syndrome. Claimants

have also produced the complaint and other police records to

substantiate the happening of the accident. Undisputably, the

respondents have not adduced any evidence before the Tribunal

to disprove the accident. In that view of the matter, taking into

account the records made available by the claimants, learned

Commissioner, after appreciating the entire material on record,

rightly answered issues 1 to 4 in favour of the claimants. In this

regard, it is relevant to refer to the dictum of the Hon'ble

Supreme Court in the judgment referred to by the respondents 1

to 3 in PARAM PAL SINGH (supra), wherein at paragraph 25 to

28 of the judgment, it is observed thus:

"25. In a recent decision of this Court in Shakuntala Chandrakant Shreshti (supra), the factors to be established to prove that an accident has taken place have been culled out and stated as under in paragraph 28: "28. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:

1. stress and strain arising during the course of employment

2. nature of employment

3. injury aggravated due to stress and strain"

26. In Mallikarjuna G. Hiremath V. Branch Manager, Oriental Insurance Co. Ltd. and another reported in AIR 2009 SC 2019 the principles to attract Section 3 of the Workmen's Compensation Act have been stated as under in paragraph 13:

"13... '22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn's case (supra) in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:

1) There must be a casual connection between the injury and the accident and the accident and the work done in the course of employment.

2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case."

27. The Madhya Pradesh High Court in Smt. Sundarbai V. The General Manager, Ordnance Factory, Khamaria, Jabalpur reported in 1976 Lab I.C. 1163 in paragraph 10 the principles have been culled out as under:

"10. On a review of the authorities, the principles insofar as relevant for our purposes may be stated as follows:

(A) Accident means an untoward mishap which is not expected or designed by the workman. "Injury" means physiological injury.

(B) "Accident" and "injury" are distinct in cases where accident is an event happening externally to a man; e.g. when a workman falls from a ladder and suffers injury. But accident may be an event happening internally to a man and in such cases "accident" and "injury" coincide. Such cases are illustrated by bursting of an aneurism, failure of heart and the like while the workman is doing his normal work.

(C) Physiological injury suffered by a workman due mainly to the progress of disease unconnected with employment, may amount to an injury arising out of and in the course of employment if the work which the workman was doing at the time of the

occurrence of the injury contributed to its occurrence.

(D) The connection between the injury and employment may be furnished by ordinary strain of ordinary work if the strain did in fact contribute to or accelerate or hasten the injury.

(E) The burden to prove the connection of employment with the injury is on the applicant, but he is entitled to succeed if on a balance of probabilities a reasonable man might hold that the more probable conclusion is that there was a connection."

26. Again in yet another celebrated decision of this Court in Ibrahim Mahmmod Issak (supra) this Court has set down the principles applied in such cases as under in paragraph 5:

"5. 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 casual 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 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. In Lancashire and Yorkshire Railway Co. v. Highley, Lord summer laid down the following test for determining whether an accident "arose out of the employment."

10. Applying the various principles laid down by the

Hon'ble Supreme Court in the above case to the facts of the case

on hand, there is casual connection to the death of the deceased

with that of his employment as a driver of the vehicle in

question.

11. Insofar as the arguments advanced by Sri B.C.

Seetharama Rao, relating to the applicability of Section 143 of

the Motor Vehicles Act is concerned, it is useful to refer to the

law laid down by the Hon'ble Supreme Court in the case of DAYA

KISHAN JOSHI AND ANOTHER v. DYNEMECH SYSTEMS PVT. LTD.

reported in (2018)11 SCC 642, wherein at paragraph 7 of the

judgment, the Hon'ble Supreme Court has observed thus:

"7. When a workman is on the public road or public place or on public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. In other words, there must be a causal relationship between the accident and the employment. The expression 'out of employment'

is 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. The words "arising out of employment" are understood to mean that during the course of employment, the injury has resulted from some risk incidental to the duties. Unless engaged in the duty owed to the employer, it is reasonable to believe that the workman would not otherwise have suffered.

There cannot be any dispute that the question as to when an employment begins and when it ceases, depends upon the facts of each case. There is a notional extension at both entry and exit by time and space. There may be some reasonable extension in both time and space and a workman may be regarded as in the course of his employment even though he has not reached or has left employer's premises. In India, the courts have recognized the principle of notional extension of time and space for over 60-70 years while determining whether the injury has been caused out of or in the course of the employment of the workman. The Courts have held consistently that the employment does not necessarily end, when the tool down signal is given and when the workman actually leaves his place of work."

12. At this juncture, it is relevant to follow the judgment

of this Court in the case of ORIENTAL INSURANCE COMPANY

LIMITED v. SRI NITIN AND ANOTHER made in Miscellaneous

First Appeal No.4135 of 2008 and connected appeal, decided on

19th February, 2013, wherein it is held that Workmen's

Compensation Act and the Motor Vehicles Act being beneficial

legislations to protect the interest of the victims of the accident

either in the course of employment or on account of use of

motor vehicle and the same shall not defeat the very purpose of

the Act. The observation made at paragraph 17 of the judgment

is extracted hereunder:

"17. In Tippeswamy's case the facts were that the claimant was working as a cleaner in the passenger bus and on 14.06.2000 in the course of his employment as a cleaner, he got down from the bus and was regulating the movement of the people in front of the bus. At that time driver of the bus suddenly moved resulting in running of the front wheel of the bus over the right feet of the claimant. The claim petition was preferred under Section 166 of the MV Act, 1988. The Tribunal held that the accident was on account of rash and negligent driving of the driver of the bus in which the claimant had sustained injuries and therefore, the claimant had established actionable negligence and was entitled to compensation. Aggrieved by the said award of the Tribunal, the Insurance Company preferred an appeal before this Court. This Court in the said appeal framed the following point for its consideration:

"Whether an employee, like a cleaner, whose risk is not statutorily covered under proviso (ii) sub-section (1) of Section 147 of the Motor

Vehicles Act, 1988, is entitled to compensation, as a third party, if at that time of the accident he was outside the vehicle?"

While answering the said point at para-16 it is held as follows:

"16. From the aforesaid judgments it is clear, if the injured is an employee and in the course of his employment if he is injured, whether he is inside the bus or outside the bus, under the provisions of the Workmen's Compensation Act he is entitled to compensation. Thus, to be entitled to compensation what has to be established is that the injured was an employee of the insured, he was injured in the course of employment and then he is entitled to compensation. But that is not the position in respect of cases arising out of Motor Vehicles Act of 1988. For being entitled to compensation under the Act, the claim for compensation should arise in respect of accidents involving the death of or bodily injury to persons arising out of the user of the motor vehicles. The relationship of master and servant is not necessary. If such a relationship exists it enures to the benefit of an employee to a limited extent as provided under proviso (ii) to sub-section (1) of Section 147 i.e., if the insured had taken a policy covering only third party risk, even then the driver of the vehicle which is insured and if it is a public service vehicle the employee engaged as a conductor of the vehicle or employee employed in examining the tickets on the vehicle and if it is goods carriage employee being carried in the vehicle are also entitled to compensation to the extent it is provided under the provisions of Workmen's Compensation Act even though the insured had not paid any additional premium. However, the said benefit is not available to other categories of employees of the insured. But if other categories of employees at the time of accident though in the course of employment are outside the vehilce, then they would become 'third party' under the Act, notwithstanding the fact that such a person is also an employee of the insured.

Such an employee has the option of either claiming compensation under the provisions of Motor Vehicles Act as a third party or as an employee of the insured under the provisions of Workmen's Compensation Act. If the claim is under the provisions of Workmen's Compensation Act, the liability of the insurance company will be only to that extent as provided under the Workmen's Compensation Act. If the claim is under the provisions of Motor Vehicles Act as a third party, then the liability would be unlimited as provided under Section 147(2) of the Act. It is to be remembered that both the Workmen's Compensation Act and the Motor Vehicles Act are beneficial legislation which are enacted to protect the interest of victims to the accident either in the course of employment or on account of use of motor vehicle. Any interpretation to be placed on these provisions should be in consonance with the object with which these enactments are enacted. Any other view would defeat the very purpose of the Act. If the victim of an accident is entitled to compensation under both the aforesaid enactments, then that enactment which is more beneficial to him is to be adopted."

13. Considering the factual aspects on record and

applying the principles referred to above, I am of the view that

the appeal deserves to be dismissed answering substantial

questions of law framed above in favour of the claimants.

Appeal accordingly, dismissed.

Sd/-

JUDGE

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