Kalaburagi, in ECA no.41/2018, this appeal is filed.
2. Smt.Preeti Patil Melkundi, learned counsel submitted,
course of or out of employment. It was submitted, an
NEKRTC bus plying on route 26/27/26 i.e. Humnabad to Bidar,
Bidar to Hubballi and back to Humnabad. And at 22:15 hours,
chest pain and fell down on platform. He was immediately
was declared dead due to cardiac arrest. It was stated as on
monthly salary of Rs.26,926/-. Alleging loss of dependency due
to his untimely death, his wife filed claim.
3. It was submitted, on service of summons, NEKRTC
Maqdoomsab as driver and his deputation to Humnabad. It was
to full satisfaction of management. And that death due to
cardiac arrest was of natural cause and not due to employment.
Therefore, employer was not liable to pay compensation.
4. Based on pleadings, tribunal framed following:
3. Whether the petitioner is entitled for the
compensation? If so, how much and from whom?
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4. What order or award?"
5. Thereafter, claimant examined herself as PW.1 and
got marked Exs.P1 to P3. Employer examined Depot Manager
as RW.1 and got marked Attendance Book as Ex.R-1.
6. On consideration, Commissioner answered issues
no.1 and 2 in affirmative, issue no.3 partly in affirmative and
issue no.4 by allowing application and holding claimant entitled
for total compensation of Rs.6,03,700/- with interest at 12%
per annum from date of petition. Aggrieved, employer was in
appeal.
7. It was submitted, there were several contradictions
in self-serving statements of claimant with regard to incident in
question disentitling claim under provisions of EC Act. It was
contended, death due to heart attack would be of natural
causes and there was no nexus between death and
employment. Hence substantial question of law about finding
that death occurred in course of and out of employment being
perverse arose for consideration.
8. Claimant is served and unrepresented.
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9. Heard learned counsel, perused impugned judgment
and award and record.
10. From above, it is seen this appeal is by employer
challenging finding of Commissioner about occurrence of death
of workman in course of and out of employment. Sufferance of
cardiac arrest by Maqdoomsab on 13.11.2016 at platform,
Kalaburagi Bus Stand and he being taken to hospital for
treatment, declared dead due to cardiac arrest on same day,
are not in dispute.
11. Specific contention of employer is there was no
nexus between death and employment. It is settled law that
burden to establish said fact with specific pleading and evidence
would be on claimant. In claim application, it is asserted that
workman - Maqdoomsab was performing duty on route -
26/27/26 i.e. from Humnabad to Bidar, Bidar to Hubballi and
return from Hubballi to Bidar and Bidar to Humnabad along
with Sri Anilkumar - conductor, in bus no.F-865. It is further
stated that at 22:15 hours, Maqdoomsab got log-sheet entered
at Control Point in Kalaburagi Bus Stand, when he suffered
severe chest pain and was taken to hospital. It was also stated,
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Depot Manager arranged another driver to operate route and
complete schedule as mentioned in Log-sheet no.4403759.
Said assertions were reiterated in deposition and copies of
order passed by NEKRTC, Duty Certificate and Death Certificate
were got marked as Exs.P1 to P3.
12. In cross-examination, it is elicited that workman left
home at 5:00 a.m. to go to Hubballi from Bidar. Apart from
above, suggestions about workman not doing any heavy duty,
death due to natural cause, lack of nexus between death and
employment and claimant not being entitled for compensation
are made and denied.
13. On other hand objections filed by employer is one of
general denial with Depot Manager examined as RW.1 and
Attendance Book Extract marked as Ex.R1.
14. Issue whether death of workman due to heart attack
can be held to be during course of and out of employment, has
been subject matter in various decisions. Hon'ble Supreme
Court in Jyothi Ademma v. Plant Engineer, Nellore and
Another, reported in (2006) 5 SCC 513, observed, where
deceased - workman an employee at Nellore Thermal Station,
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died due to heart attack at work spot, petitioner alleged that
death was due to stress and strain linked with employment,
while Employer opposed it on ground that death did not occur
during course of and out of employment and it was for natural
reasons. Apex Court was of view that mere occurrence of death
during course of employment was not sufficient to hold
employer liable to pay compensation, unless, it is established
that there was some causal connection between death of
workman and his employment. It denied claim in said case, as
job of deceased was only to operate a switch - on and off,
which could not be held causing stress or strain in his duties.
15. In Shankuntala Chandrakant Shreshti v.
Prabhakara Maruti Garvali and Anr. reported in (2007) 11
SCC 668, a cleaner in a lorry suffering chest pain in transit and
died. It was clarified, though deceased may have suffered heart
attack while on job, same by itself would not support
presumption that it was suffered due to strain and stress of job
and it was necessary to establish that such circumstances as
would cause stress and strain for heart attack, existed. Without
such evidence, there would be no jurisdiction to award
compensation.
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16. In Mallikarjuna G. Hiremath v. Branch Manager,
OICL and Anr., reported in (2009) 13 SCC 405, death of a
driver of a lorry had occurred when driver slipped and fell into a
pond and drowned. It was held that such death would not be
"arising out of and in course of employment", as it lacked
causal connection between employment and death. Referring to
Jyothi Ademma's case (supra) and ESI Corpn. v. Francis De
Costa reported in (1996) 6 SCC 1, it has held that merely
because death occurred during employment would not mean it
was in course of employment.
17. In Poonam Devi & Ors. v. Oriental Insurance
Company Ltd., reported in (2020) 4 SCC 55, while
considering case of a driver drowning in Yamuna Canal, where
he had gone to fetch water and to have bath while in transit,
Hon'ble Supreme Court took judicial note of fact that incident
had occurred in summer when due to heat, driver was under
compulsion to take bath, stay fresh and alert not only to
protect truck, but also himself for safe journey and held:
".......... Every action of a driver of truck to
ensure the safety of the truck belonging to
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the employer and to ensure his own safety
by a safe journey for himself has to be
considered as incidental to the employment
by extension of the notional employment
theory......."
18. This Court in National Insurance Co., Ltd. v.
Smt.Renukamma and Ors. reported in 2019 (1) KLJ 458,
referring to earlier decision in National Insurance Co., Ltd. v.
Zaheeda Banu and Ors. reported in ILR 2010 KAR 4321,
have held driving as a stressful job and there cannot be
presumption where driver dies during course of employment
that it was not due to strain and stress of driving. Similar views
are expressed in United India Insurance Company Ltd. v.
Smt.Varija and Ors. reported in ILR 2011 KAR 3915 and
MFA no.201567/2017 disposed of on 23.12.2020. Insurer is
held liable even when death due to cardiac arrest was while
workman was resting in course of employment.
19. Admittedly, workman suffered chest pain while he
was on platform in Bus Stand and had got his log sheet
entered. Therefore, there is material to establish that incident
occurred in course of employment.
- 10 -
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20. Insofar as whether it was out of employment, it has
to be noted that total driving distance on route 26/27/26 (i.e.
from Humnabad to Bidar, Bidar to Hubballi and back) is about
1000 Kms., claimant stated that workman had left home at
5:00 a.m. on date of incident. He was at Kalaburagi Bus Stand
at 22:15 hours (apparently on return journey having driven
more than 800 Kms on that day). Same would sufficiently
justify assertion about Cardiac arrest being caused due to
stress and strain of driving. In light of above, finding of
Commissioner about death being out of employment cannot be
stated to be without basis or without reasons. Hence, no
substantial question of law would arise for consideration.
21. In view of above appeal is dismissed. Amount if any
deposited before this Court be transmitted to tribunal for
dispersal.
Sd/-
(RAVI V HOSMANI)
JUDGE
Psg*
