M/S The Oriental Insurance Co. Ltd vs Kumari Kirthana
2022 Latest Caselaw 2315 Kant

                                                             R

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF FEBRUARY, 2022

                           BEFORE

       THE HON'BLE MR.JUSTICE P.KRISHNA BHAT

               M.F.A.No.4498 of 2009 (WC)

BETWEEN:

M/S THE ORIENTAL INSURANCE CO. LTD.,
NO.25, C, ARUNAGIRI COMPLEX,
3RD FLOOR, BY-PASS ROAD, HOSUR- 635109,
THROUGH REGIONAL OFFICE,
LEO SHOPPING COMPLEX, 44/45,
RESIDENCY ROAD, BANGALORE-25
REPRESENTED BY ITS, REGIONAL MANAGER
                                              ...APPELLANT
(By Sri.B S UMESH, ADV.)

AND:
1.     KUMARI KIRTHANA
       D/O LATE MANOHAR @ RAJENDRA,
       AGED ABOUT 12 YEARS
       SINCE MINOR REPRESENTED BY HER
       MOTHER AND NATURAL GUARDIAN RESP. NO. 2
       C/O SRI RAMA, CHIKKABASAVANAPURA,
       VIRGONAGAR, BANGALORE-560049.
2.     SMT. BHUVANA
       W/O LATE MANOHAR @ RAJENDRA,
       AGED ABOUT 31 YEARS
       C/O SRI RAMA, CHIKKABASAVANAPURA,
       VIRGONAGAR, BANGALORE560049.
3.     SRI K.V. SENTHIL
       S/O R. VELUMUDHLI, AGE MAJOR,
       EXACT NOT KNOWN, R/A NO. 15,
       BAR LANE, 1ST CROSS
       COTTONPET, BANGALORE-560053.
                                            ...RESPONDENTS
(By Sri : PRADEEP NAIK K FOR R1&2,
R1 IS MINOR REP.BY R2, -R-3 SERVED).
                               2



      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
ORDER DATED31/01/2009 PASSED IN WCA/FC/CR-30/2007 ON
THE FILE OF COMMISSIONER FOR WORKMEN'S COMPENSATION
SUB-DIVISION-6, BANGALORE, AWARDING A COMPENSATION
OF RS.3,80,280/- WITH INTEREST @ 12% P.A.

     THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This is an appeal at the instance of the insurance

company calling in question the legality and validity of the

award dated 13.01.2019 passed in WCA/FC/CR-30/2007 by

the Commissioner for Workmen's Compensation Sub-

Division-6, Karmika Bhavan, Bannerghatta Road,

Bengaluru.

2. It is the case of the claimants that one

Sri Manohar @ Rajendra (hereinafter referred to as the

deceased) was the father of claimant No.1 and husband of

claimant No.2 before the learned Commissioner. It is the

case of the claimants that the deceased was working as a

driver of the lorry bearing registration No.KA 01 AA 1477

owned by respondent No.1 - Sri K.V.Senthil and insured

with the appellant. It is the further case of the claimants

that on 20.01.2003 while the deceased was driving the

lorry from Krishnagiri to Bombay transporting Mangoes,

near Chitradurga, one Sri Yellappa the Manager of Sushil

Petrol Bunk stopped the lorry due to some disputes

between the said Sri Yellappa and respondent No.1 -

Sri K.V.Senthil regarding payment of money for the diesel

purchased and thereafter, the deceased was taken to

Naveen lodge in Chitradurga Town and he was brutally

assaulted and on account of the injuries suffered, he died

and since in this manner death had taken place on account

of the accident arising out of and in the course of the

employment, the claimants are entitled to compensation

under the Employees Compensation Act, 1923.

3. Both respondent No.1 - Sri K.V.Senthil and the

appellant insurance company entered appearance before

the learned Commissioner and filed their respective written

statements denying the material averments in the claim

petition.

4. Even though respondent No.1 - has filed

statement of objections, he has not chosen to examine

himself.

5. During the enquiry before the learned

Commissioner, one of the claimants examined herself as

PW.1 and father of the deceased was examined as PW.2

and one Sri Chandrashekar was examined as PW.3. Exs.P1

to P9 were marked and out of them, Ex.P3 was the

postmortem examination report and Ex.P7 was the inquest

report.

6. An official of the appellant - Insurance Company

was examined as RW.1 and Ex.R1, namely, the policy of the

insurance was marked.

7. After hearing the learned counsel on both sides

and on perusal of the records, learned Commissioner

allowed the claim petition in part and awarded a

compensation of Rs.3,80,280/- with interest thereon at

12% p.a.

8. Learned counsel for the appellant - Insurance

Company strenuously contended that the claimants have

not at all established that the death of the deceased had

taken place during the course of employment, inasmuch as,

the postmortem examination report clearly shows that the

death was due to acute respiratory failure, as a result of

extensive bilateral fibro cavitatory tuberculosis (Pulmonary

koch's). He also submitted that it is not even the case of

the claimants that the death was on account of the accident

occurring during the course of employment, but it was on

account of the brutal assault on him by the Manager of the

Petrol Bunk namely one Sri Yellappa. He further submitted

that the learned Commissioner has based his finding on

speculation and not on evidence and therefore, the finding

recorded against the respondents before him is illegal and

liable to be set aside and the appellant is not liable to pay

any compensation and the appeal is entitled to be allowed.

9. I have carefully perused the records and given

my anxious consideration to the submissions made before

me.

10. It is no doubt true that the claim petition states

that while the deceased was driving the truck in question

near Chidradurga Town, the lorry was stopped by the

Manager of the Petrol Bunk by name Sri Yellappa and on

account of a dispute between the said Sri Yellappa and the

owner of the lorry (respondent No.1 - Sri K.V.Senthil)

regarding money due to the said Sri Yellappa for purchase

of purchase of diesel, he took the deceased (driver) and the

lorry to Naveen lodge in Chitradurga Town and thereafter

assaulted him, due to which, he died on 20.01.2003.

11. Perusal of Ex.P7, which is the inquest

panchanama shows that claimant No.2 namely the widow of

deceased was not informed about the death of the

deceased and neither she nor any blood relative was

present at the inquest. The inquest panchanama was drawn

up by the Police and statements were recorded from the

witnesses, who were present at that time. Statements

recorded during Ex.P7 clearly show that there were some

disputes regarding money for diesel purchase in the petrol

bunk of Sri Yellappa and the deceased had taken the lorry

in question to Naveen lodge and he was standing near the

counter for making a call to his employer namely

Sri K.V.Senthil. At that time, he suddenly developed

stomach pain and discomfort and collapsed and from there,

he was shifted to the District Hospital, Chitradurga where

he died. The postmortem conducted at Ex.P3 in the hospital

shows that the deceased has died due to acute respiratory

failure as a result of extensive bilateral fibro cavitatory

tuberculosis (Pulmonary koch's). Neither Ex.P3 nor Ex.P7

show any external injuries on the dead body. As already

noticed, the claimants or any other blood relatives were not

present at the time of the incident and this also discloses

that the incident was obviously based on some information

received through a third person. On the other hand, Ex.P7

clearly shows that those who were present at the last

moment with the deceased had given clear details of what

had happened to the deceased and this clearly shows that

at the time of the incident, deceased was in charge of the

truck in question belonging to respondent No.1 -Sri

K.V.Senthil and insured with the appellant and he had died

due to respiratory failure of an aggravated form of

tuberculosis. Though the primary cause of death is the

aggravated form of tuberculosis, it is apparent that the

entrustment of the lorry to him for the purpose of driving

with cargo on a long drive from a place in Tamilnadu to

Bombay would certainly have caused significant stress on

him on account of driving the lorry on a highway at that

point of time.

12. Learned counsel for the appellant has submitted

that the claimants themselves have asserted that the death

was on account of assault on him by one

Sri Yellappa and Exs.P3 (PM Report) and P7 (Inquest)

completely falsify the same, inasmuch as they do not show

any external injury on the body of the deceased. He also

placed reliance on a decision of the Hon'ble Supreme Court

in case of Shakuntala Chandrakant Shreshti V.

Prabhakar Maruti Garvali & another reported in (2007)

11 SCC 668.

13. As already noticed by me, the claimants were

not eye witnesses to the incident nor they were having

access to information about the death of the deceased, and

they were not present even at the time of the inquest

proceedings. It is entirely possible that the claimants have

pleaded the exact cause of death on a false premise or on

an exaggerated premise; but the documents produced,

more particularly Ex.P7 shows the exact manner of

occurrence of death of the deceased and more importantly,

the fact that he was in charge of the vehicle in question

owned by respondent No.1 - Sri.K.V.Senthil insured with

the appellant at the time of his death cannot be ruled-out.

Any prudent owner would not have entrusted a vehicle to a

person who was having such aggravated form of

tuberculosis, especially on a long route, which inevitably

would have aggravated the pre-existing decease even to

the extent of causing the death of such a driver.

Undeniably, driving a heavy goods vehicle on a long trip on

a highway is a strenuous job. In that view of the matter, it

is relevant at this stage to refer to the observation of the

Hon'ble Supreme Court in Shakuntala's case (Supra),

wherein the meaning of the expression "accident" has been

delineated at Para No.21 of the judgment which is relevant

for the present purpose and it reads as follows:

"21. We are not oblivious that an accident may cause an internal injury as was held in Fenton (Pauper) v. J. Thorley & Co. Ltd. by the Court of Appeal:

"I come, therefore, to the conclusion that expression 'accident' is used in the popular and ordinary sense of the word as denoting an

unlooked-for mishap or an untoward event which is not expected or designed."

Lord Lindley opined:

"The word 'accident' is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word 'accident' is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events."

14. Further, the essential test for the purpose of

deciding whether the ingredients under Section 3 of the

Employees Compensation Act, 1923 are attracted or not

has been stated at Para No.22 and it reads as follows:

"22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn. 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 causal 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."

15. It is also relevant to refer to the observation of

the Hon'ble Supreme Court at Para No.25, it is as follows:

"25. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred."

16. From what is stated and explained by the

Hon'ble Supreme Court, it is apt to notice that the deceased

had a pre-existing condition as on the date of the

"accident", namely he was suffering from an aggravated

form of tuberculosis. Even though records disclose that he

was hardly 37 years of age, the fact that driving a heavy

goods vehicle like a truck on a long trip, particularly, on a

highway, would have caused him considerable stress and

strain is a matter of no great complexity requiring the

intelligence of an Euclid and it does not require any expert

evidence to establish the same. The unimpeachable

material placed, namely, the inquest report clearly shows

that prior to his death, the deceased was driving the lorry

belonging to the insured - Sri K.V.Senthil and while he was

about to make a telephonic call to his employer from the

hotel, he had collapsed and within a short while, he had

passed away due to acute respiratory failure as a result of

extensive bilateral fibro cavitatory tuberculosis (Pulmonary

koch's). Significantly Ex.P3 and Ex.P7 show that there were

no external injuries on the deceased. They clearly show as

a matter of fact that the death of the deceased was on

account of stress and strain caused due to driving of heavy

goods vehicle and even if it was not due to any accident as

a primary cause, but, it had at any rate accelerated his

death on account of a pre-existing condition like

tuberculosis primarily on account of his being put in charge

of driving of a heavy goods vehicle. It is therefore,

irrelevant in a litigation of this nature as to what is the

immediate cause for the death, so long as the evidence

clearly establish the factors which accelerated the

immediate cause for the death and further, evidence shows

that the claimants had no access to information as to what

happened immediately preceding the death of the driver.

17. Learned counsel for the appellant has

vehemently contended that Ex.P3 and Ex.P4 should not be

looked into in view of the pleadings and evidence of

claimants suggesting that death of deceased was due to

assault by Sri Yellappa. Firstly, it cannot be disputed that

claimants or other relatives of claimants were not present

at the time of the accident or at the time of inquest.

Secondly, they are semi-literates belonging to lower strata

of society. Thirdly, much importance cannot be attached to

the aspect of their conduct when Ex.P3 and Ex.P7 do not

show any external injuries on the dead body. There is a

tendency among the poor people to back up a good case by

exaggerating or offering even false evidence.

18. Sir John Edge speaking for the Privy Council

observed in the case of BANKIM BIHARI MAITI V.

SHRIMATI MATANGINI DASI reported in A.I.R. 1919

Privy Council 157, which reads thus;

"......Their Lordships must now consider the evidence so far as it is necessary to do so, and in considering whether the evidence entitled Bankim Bihari Haiti to a grant of probate of the will they must bear in mind that in Indian litigation it is not safe to assume that a case must be a false case if some of the evidence in support of it appears to be doubtful or is clearly untrue. There is on some occasions a tendency amongst litigants in India, as elsewhere, to back up a good case by false or exaggerated evidence. ......

....... No doubt there are grave suspicions as to the preparation of the draft, but as already observed a good case in India is sometimes backed up by false evidence; and the suspicious character of this story does not in their Lordships' opinion destroy the evidence as to the execution of the Will."

Therefore, I do not find any merit in the contentions of the

learned counsel for the appellant. On the other hand, on an

appraisal of the materials available on record, I am satisfied

that the finding of the learned Commissioner is correct.

19. Further, since the deceased was shown to be

aged about 37 years, the income of the deceased having

been taken at Rs.4,000/- p.m. by the learned

Commissioner in the background that he was a driver of a

heavy goods vehicle on a long trip cannot be said to be on

the higher side. Therefore, there is no good reason to

interfere with the quantum of compensation. For the reason

aforestated, I do not find any good ground to interfere with

the award impugned herein and I affirm the same. Hence,

the following:

ORDER

i) The appeal is dismissed.

       ii)     The        amount   in-deposit     shall     be
               transmitted to the learned Court below
               along with the records forthwith.




                                                 Sd/-
                                                JUDGE

ssb