Karnataka High Court
The Divisional Manager vs Roshanbanu W/O Babajan Navalur on 4 July, 2024
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MFA No. 101853 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 101853 OF 2016 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.,
2ND FLOOR, SRINATH COMPLEX, NCM,
REPRESENTED BY MANAGAER,
NEW INDIA ASSURANCE CO.LTD.,
T.P.HUB, SRINATH COMPLEX,
II FLOOR, NEW COTTON MARKET,
HUBBALLI-580022.
...APPELLANT
(BY SRI. M K SOUDAGAR, ADVOCATE)
Digitally signed
by MANJANNA AND:
E
Location: HIGH
COURT OF
KARNATAKA 1. ROSHANBANU
W/O. BABAJAN NAVALUR,
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O: DYAVANUR PLOT, ANNIGERI,
TQ: NAVALGUND, DIST: DHARWAD.
2. KUMARI KHUSHI
D/O. BABAJAN NAVALUR,
AGE: 03 YEARS, OCC: NIL,
MINOR REPRESENTED BY NATURAL
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MFA No. 101853 of 2016
MOTHER PETITIONER NO.1
ROSHANBANU W/O. BABAJAN NAVALUR,
R/O: DYAVANUR PLOT, ANNIGERI,
TQ: NAVALGUND, DIST: DHARWAD.
3. PUJA SAGAR MARO,
AGE: MAJOR, OCC BUSINESS,
R/O: RAGHAVA ROAD,
LAYANCE HALYAL ROAD,
DANDELI (DECEASED).
4. MADHU S/O. MADANLAL MARO
AGE: MAJOR, OCC BUSINESS,
R/O: MADHU ROAD, LIONS,
CHANNAMMA CIRCLE,
HALYAL ROAD, DANDELI,
TQ: JOIDA, DIST: UK.
5. KUMARI. BASIRA
D/O. MADARSAB NAVALUR
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O: OLD DANDELI,
TQ: HALIYAL, DIST: U.K.
...RESPONDENTS
(BY SRI. NEEL P. PATEL, ADV. FOR
SRI. GOURISHANKAR H. MOT, ADV. FOR R1 & R2;
SMT. K. SHOBHARANI, ADV. FOR R3;
SRI. SOMASHEKAR B. ANCHATGERI, ADV. FOR R4;
NOTICE TO R5 DISPENSED WITH)
THIS MFA IS FILED U/SEC.30(1) OF THE EMPLOYEES
COMPENSATION ACT 1923, PRAYING TO CALL FOR RECORDS IN
CASE ECA NO.52/2014, ON THE FILE OF THE III ADDL. SENIOR
CIVIL JUDGE AND JMFC, HUBBALLI AND SET ASIDE THE JUDGMENT
AND ORDER DATED 06.04.2016 BY ALLOWING THIS APPEAL WITH
COST AND ETC.
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MFA No. 101853 of 2016
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the Insurance Company
challenging the judgment and award passed in E.C.A.
No.52/2014 dated 06.04.2016 on the file of the III
Additional Senior Civil Judge and JMFC, Hubballi, under
Employees Compensation Act (for short, 'the E.C.Act').
2. For the sake of convenience, the parties are
referred to as per their rank referred to in the claim
petition before the Tribunal.
3. The brief facts which are necessary for disposal
of the appeal are as under:
The claim petition was filed under the provisions of
the Workmen's Compensation Act, 1923 (hereinafter
referred to as "W.C. Act" for short) contending that one
Babajan was working as a driver in a lorry bearing
registration No.KA-31/4381. On 18.11.2011 at about 4.00
p.m. the driver Babajan took Lorry, which was loaded with
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papers from Karnataka West Coast Paper Mill, Dandeli to
Thane, Mumbai, he reached Thane, Mumbai, on the next
day, where he parked the Lorry and goods were unloaded.
However, Babajan suffered heart attack. Immediately, he
was shifted to Jupitar Hospital, and from there he was
taken to Civil Hospital, Thane and there he was declared
as dead.
4. It is contended that the deceased drove the
truck continuously viz., day and night from Dandeli to
Thane, Mumbai with heavy load of papers and undergone
much stress and strain. As a result of said stress, he
suffered massive heart attack. The death of the deceased
was due to stress and strain by continuous driving of
heavy goods and this was happened during the course and
out of the employment. Therefore, the claimants being the
dependants of the deceased, having lost their bread
winner, laid a claim awarding suitable compensation.
5. The commissioner raised necessary issues and
after deciding the oral and documentary evidence on
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record, allowed the claim petition in a sum of
Rs.6,34,760/- as compensation. Being aggrieved by the
same, the Insurance Company has preferred this appeal.
6. Sri.M.K.Soudhagar, learned counsel appearing
for the appellant - Insurance Company vehemently
contended that the Commissioner committed a grave error
in fastening the liability on the Insurance Company, as
there was no nexus between the death of the deceased-
Babajan and his employment. Further no vehicle is
involved and accident has not taken place, whereas, it was
a massive heart attack of the deceased for personal
reasons, particularly, as per Ex.P.3-Postmortem report,
the deceased Babajan died due to Tuberculosis decease
and not due to heart attack. Therefore, the Insurance
Company cannot be penalized for the death of deceased
on personal reasons. Hence, he prayed to allow the
appeal.
7. Sri.Neel P. Patel, learned counsel for the
claimants/respondents contended that the Commissioner
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for Employee's compensation after considering the oral
and documentary evidence on record, held that the
incident was occurred during the course of the
employment under the owner of the lorry - respondent
No.1. It is further contended that the deceased-Babajan
during the course of the employment under the
respondent No.1 died due to stress and strain and as the
offending lorry was duly insured with the
appellant/Insurance Company, it is liable to pay the
compensation. Hence, he prayed to dismiss the appeal
filed by the appellant - Insurance Company.
8. The counsel for the claimants relied upon the
following decisions:
"i. Divisional Manager National Insurance
Company Limited Vs. Smt.Jasvindar Kaur W/o
Ramalal Rana and others1;
ii. The Branch Manager United India Insurance
Co. Ltd. Vs. Jeteppa S/o Shivappa Hatti and
others2;
MFA No.13448/2007 D.D. 21.07.2016
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iii. Divisional Manager National Insurance
Company Limited Vs. Ramesh S/o Maruti
Kalal and others3.
iv. Divisional Manager National Insurance
Company Limited Vs. Smt. Pramilabai and
others4.
9. In view of the submissions made by the counsel
for appellant and respondents, the following points that
would arise for Court's consideration are as follows:
"i. Whether the employees
compensation Commissioner is justified in
holding that the Babajan was an employee of
respondent No.3 and his death was arisen out of
employment and during the course of
employment on the insured lorry?
ii. Whether the employees compensation
Commissioner is justified in holding that death is
due to stress?
iii. Whether the Commissioner acted
perversely and contrary to law in ignoring the
defence of appellant/insurance Company that the
death of deceased due to heart attack/
MFA No.30945/2010 D.D.No.29.02.2016
MFA No.31780/2012 D.D.28.06.2016
MFA No.3132/2010 D.D. 02.03.2016
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Tuberculosis decease which has not resulted out
of employment?"
10. In the light of the points raised by this Court,
this Court re-appreciated the contents putforth by the
learned counsel for the parties.
11. In the instant case, deceased-Babajan lost his
breath, on account of death while he was in Thane,
Mumbai. It is not in dispute that deceased-Babajan was
employed under insured and who transported the paper
goods in lorry bearing registration No.KA-31/4381 from
Dandeli to Thane, Mumbai.
12. As per the contents of Ex.P.1-Comlaint and
Ex.P.4-Charge sheet, the deceased-Babajan drove the
vehicle continuously and inconsistently and stopped the
vehicle at Thane, Mumbai and unloaded the paper and on
the following day he suffered massive heart attack. On
that circumstance, the driver of deceased-Babajan meets
his unexpected death, may be due to heart failure or due
to Tuberculosis decease however, death was during the
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course of his employment as mentioned in Ex.P.3-
Postmortum examination report.
13. The deceased being a professional heavy
vehicle driver, when undertakes the job of such driving as
his regular avocation, it can be safely held that such
constant driving of heavy vehicle, being dependant solely
upon his physical and mental resources and endurance,
there was every reason to assume that the avocation of
driving was a material contributory factor, if not, the sole
clause that accelerated his unexpected death to occur
which in all fairness should be held to be an untoward
mishap in his life span. Such an untoward mishap can
therefore be reasonably described as an accident as
having been caused solely attributable nature of
employment indulged in with his employer which was in
the course of such employer's trade or business.
14. This similar view was expressed by the Hon'ble
Apex Court in the cases of North East Karnataka Road
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Transport Corporation vs. Sujatha5; Ved Prakash
Garg vs. Premi Devi and others6; and in the case of
National Insurance Co. Ltd., vs. Prembai Patel and
others7, the Hon'ble Apex Court has held that whether the
Insurance Company is liable to meet the award of the
Commissioner imposing penalty and interest against the
insured employer. This is not an issue under consideration
in the case on hand.
15. From perusal of oral evidence of P.W.1,
contents of Ex.P.3-Postmortm report and oral evidence of
RW.1 and 2 and the ratio laid down in the decision cited
supra, the driver Babajan died during the course of
employment.
16. The Hon'ble Apex Court in case of Rita Devi
and Other Vs. New India Assuance Company limited
and another8. The Coordinate Bench of this Court in MFA
22953/2010 date of disposal 27.09.2021, considered the
(2009) 11 SCC 514
(1997) 8 SCC 1
(2005) 6 SCC 172
(2000) 5 SCC 113
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murder of employee was during the course of employment
and out of employment.
17. Looking into the any angle death of driver-
Babajan was during course of employment and therefore,
Insurance Company has to be indemnify the owner and
therefore, appellant is liable to pay the compensation.
18. Sri.M.K.Soudhagar, learned counsel for the
appellant fairly submitted, by virtue order of Court, the
appellant/Insurance Company deposited entire
compensation amount on 02.09.2016 before ECA
Commissioner. Hence, the amount deposited by Insurance
Company has been invested in fixed deposit. Hence, no
interest is to be levied on Insurance Company.
19. The submission is placed on record.
20. Hence, there are no merits in the appeal. The
appeal is dismissed being devoid of merits.
21. It is made clear that the appellant/Insurance
Company deposited entire compensation amount before
the ECA Commissioner. Therefore, the appellant/Insurance
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Company is liable to pay interest for 30 days from the date
of accident till the date of deposit at the rate of 12% per
annum and not thereafter.
22. ECA Commissioner/Trial Court is directed to
disburse 50% of the compensation amount in favour of the
respondent No.1 on proper identification.
23. Insofar as share of minor is concerned it shall
be invested in fixed deposit in any of the nationalized bank
for a period of 3 years renewable by every three years.
Sd/-
JUDGE
AC/ct-an
