The New India Assurance Company Ltd vs Bhanumathy N
2024 Latest Caselaw 8627 Ker

Kerala High Court

The New India Assurance Company Ltd vs Bhanumathy N on 27 March, 2024

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
                  MFA (ECC) NO. 41 OF 2017
        ECC NO.503 OF 2014 OF EMPLOYEE'S COMPENSATION
                  COMMISSIONER, KOZHIKODE
APPELLANT/2ND OPPOSITE PARTY IN ECC 503/2014

          THE NEW INDIA ASSURANCE COMPANY LTD.
          DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G
          ROAD, KOZHIKODE, REPRESENTED BY ITS MANAGER,
          REGIONAL OFFICE, M.G ROAD, ERNAKULAM.
          BY ADVS.
          LAL GEORGE
          SEBASTIAN VARGHESE(K/141/2000)

RESPONDENTS/APPLICANTS/1ST RESPONDENT IN ECC 503/2014

    1     BHANUMATHY N.
          W/O LATE. HARINDRANATH, AGED 42 YEARS, NAMBILATH
          HOUSE, PO.CHULOOR, NIT,KOZHIKODE- 673601.
    2     ATHUL, S/O LATE HARINDRANATH, AGED 18
          YEARS,NAMBILATH HOUSE, P.O. CHULOOR,
          NIT,KOZHIKODE. 673601.
    3     RAHUL
          AGED 21 YEARS, S/O LATE. HARINDRANATH, NAMBILATH
          HOUSE, P.O. CHULOOR, NIT,KOZHIKODE 673601.
    4     THANKAMANI AMMA, AGED 72,
          M/O LATE HARINDRANATH, NAMBILATH
          HOUSE,P.O.CHULOOR,NIT, KOZHIKODE. 673601.
    5     MANAGING DIRECTOR
          KERALA STATE ROAD TRANSPORT COMPANY,
          COMPANY,THIRUVANANTHAPURAM.695023.
          BY ADVS.
          A.V.M.SALAHUDIN
          SRI.P.C.CHACKO, SC, KSRTC
          P.C.SASIDHARAN
          SHRI.T.P SAJAN

    THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON
21.03.2024, THE COURT ON 27.3.2024, DELIVERED THE
FOLLOWING:
 MFA(ECC).41/2017
                                      2


                       C.PRATHEEP KUMAR, J.
                      --------------------------------------
                          M.F.A (ECC) 41 of 2017
                          -----------------------------
                          Dated : 27th March, 2024

                                JUDGMENT

1. This is an appeal filed by M/s, New India Assurance Company Ltd.

Namely, the 2nd respondent in ECC.No.503 of 2014 on the file of the Industrial Tribunal and Compensation Commissioner, Kozhikode against the order dated 12.08.2016.

2. The applicants, who are the dependents of one Harindranath, who died while working as driver of a bus belonging to the 1 st respondent, namely the KSRTC. The deceased Harindranath was the driver of KSRTC Bus bearing Registration No.KL 15- 9602. On 12.10.2012, he had driven the said bus from Kozhikode to Banglore and reached Banglore in the morning of 13.10.2012. As per the schedule, he had to return from Banglore to Kozhikode during the night of 13.10.2012. At about 8 p.m., while he along with the conductor of the bus were cleaning the same for preparing to return from Banglore to Kozhikode, he sustained serious chest pain. Immediately he was taken to a nearby hospital and on the way, he died due to cardiac arrest.

3. The applicants, who are the wife, children and mother of the MFA(ECC).41/2017

deceased filed an application before the Commissioner, claiming a compensation of Rs.10 Lakhs on the ground that the monthly income of the deceased was Rs.15,000/-. The 1st respondent KSRTC admitted that the deceased was working as driver in the KSRTC Bus at the relevant time and further contended that the vehicle was insured with the appellant namely, M/s. New India Assurance Company Ltd.

4. The appellant appeared and admitted the insurance policy.

However, they denied the liability on the ground that the deceased died not due to any accident out of and in the course of employment. Rejecting the above contention of the appellant, the Employee's Compensation Commissioner awarded a compensation of Rs.6,25,880/- along with interest @ 12% per annum as well as a sum of Rs.5,000/- towards funeral expenses. Aggrieved by the above order, the Insurance Company preferred this appeal raising various contentions.

5. It was argued on behalf of the appellant that the deceased, at the time of incident was not actually working as driver. It was contended that the deceased sustained chest pain after his onward journey to Banglore was completed and before the return journey commenced. Therefore, it was argued that the death was not due to any accident which arose out of and in the course of employment. Therefore, the learned counsel for the appellant prayed for allowing the appeal and to set aside the impugned order as against the appellant. MFA(ECC).41/2017

6. On the other hand, the learned counsel for the respondents would argue that the duty of the deceased commenced in the morning on 12.10.2012 and he was supposed to return back by driving the bus to Kozhikode on 13.10.2012, during night, when the untoward incident occurred. Therefore, the respondents would argue that the deceased was on duty at the time of incident and the award passed by the Employee's Compensation Commissioner is perfectly valid and hence they prayed for dismissing the appeal.

7. As I have already noted above, the 2 nd respondent KSRTC would admit that the deceased was working as driver of the KSRTC bus at the time of incident. It is also admitted that at the time of the incident, the deceased was on duty in the said bus. The above fact was not disputed by the appellant also. Now the question to be considered is whether the above death was an accident which arose out of and in the course of the employment.

8. The widow of the deceased as AW1 has adduced evidence before the Employees Compensation Commissioner to the effect that on 12.10.2012, the deceased was on duty in the KSRTC Bus in the route Kozhikodoe - Banglore and on 13.10.2012, while he was preparing to return back to Kozhikode, he sustained chest pain. He was immediately taken to a nearby hospital and he died due to cardiac arrest. According to her, the deceased happened to die due to the stress and strain arose out of the pressure of work. MFA(ECC).41/2017

9. In the report filed by the conductor it is stated that at the time of the incident, they were cleaning the bus for the purpose of returning from Banglore to Kozhikode. In the postmortem report (Exhibit A3), the reason for the death shown is cardiac arrest. It is true that at the relevant time, the deceased was not actually driving the bus. At the same time, he was actually on duty and was present inside the bus. He along with the conductor were cleaning the bus, as preparation for return journey to Kozhikode.

10. In paragraph 6 of the decision in Jyothi Ademma v. Plant Engineer, Nellore, 2006 (3) KLT 426 [SC], relied upon by the learned counsel for the appellant, the Hon'ble Supreme Court held that :-

"Under S.3(1) it has to be established that there was some

casual connection between the death of the workman and his

employment. If the workman dies a natural result of the

disease which he was suffering or while suffering from a

particular disease he dies of that disease as a result of wear

and tear, of the employment no liability would be fixed upon

the employer. But if the employment is a contributory cause

or has accelerated the death, or if the death was due not only

to the disease but also the disease coupled with the

employment, then it can be said that the death arose out of the MFA(ECC).41/2017

employment and the employer would be liable."

11. Relying upon the decision in Dredging Corporation of India Limited v. P.K.Bhattacherjee, (2013) 10 SCC 224, the learned counsel for the appellant would further argue that it is the duty of the respondents to prove that the deceased died due to cardiac arrest as a consequence of any stress or strain of his employment.

12. On the other hand, the learned counsel for respondents 1 to 4 relied upon the decision in National Insurance Co. Ltd v. Munni and Others, 2017 KHC 7484. In the above decision, the deceased was working as a driver of the bus belonging to the 5 th respondent. As per the instructions of the owner of the bus, the deceased proceeded from Sandur, stayed on that night at Ramapur and on the next morning at about 5.00 am while he was proceeding towards Sandur, suddenly he developed chest pain and collapsed on the steering. When he was taken to hospital, he was declared dead. In the above factual background, the Karnataka High Court held that the Insurance Company is liable to pay compensation.

13. In the decision New India Assurance Co.Ltd v. Vijay Bapu Kamble and Others, 2022, KHC 2003, the deceased was a driver employed with a College. During the course of employment he took the students and teachers to a resort for picnic. After parking the vehicle at resort, while going for shaving, he was dashed by an unknown vehicle resulting in his death. The contention of the appellant was that there was no causal connection between the MFA(ECC).41/2017

incident and the work of the deceased, for which he was engaged. However, rejecting the above contention of the appellant, the Karnataka High Court held that the accident arose out of and in the course of employment.

14. In the decision in Jyothi Devi and Others v. Himachal Road Transport Corporation and Another, 2021, KHC 2988, the deceased was employed as a driver in the respondent Corporation. After parking the bus at termination point, he was going to his residence on scooter, when a wild cow dashed against the scooter and he sustained fatal injury resulting in his death. Employer/Corporation admitted that the deceased was supposed to resume his duty after the overnight's stay. There was no evidence that any accommodation was provided to the deceased at the termination point. In the above factual scenario the High Court held that the accident arose out of and in the course of employment and dependents are entitled to get compensation.

15. In this context it is also to be noted that merely because of the fact that the employee dies by heart attack, it cannot be automatically presumed that the same was by way of accident. In the decision in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and Ors. [AIR 2007 SC 248, the Apex Court held that :-

"Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart MFA(ECC).41/2017

disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefor can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefore."

16. In the above decision, the deceased was working as a cleaner in a vehicle. While he was travelling in the vehicle in the night, he suddenly developed chest pain. When he was taken to the hospital the doctor declared him death. It was in the above context, the Hon'ble Supreme Court held that in every case a person dies of heart attack, it does not give rise to an automatic presumption that the same was by way of accident.

17. In the decision in Leela and Another v. M.K.Sukumaran and Another [MFA (ECC).No.136 of 2018 decided on 28.10.2023], a learned Single Judge of this Court, had occasion to consider whether death of a truck driver during the course of his employment due to heart attack would amount to accident arising out of and in the course of his employment. The learned Single Judge relying upon the MFA(ECC).41/2017

decision of the Hon'ble Supreme Court in Param Pal Singh v. National Insurance Co.Ltd and another [2013 ACJ 526] held that :

"The view taken by the Apex Court is that the employer was liable to compensate even if the deceased was not actually driving the truck. When in the course of his driving, he felt discomfort and later, in the hospital, he died due to heart disease, he being a driver for long years subjected to its stress and strain, the death would amount to an accident arising out of and in the course of his employment. The position here is more in favour of the appellants. Following discomfort, the deceased collapsed on the driver's seat and the accident ensued, resulting in his death. In the light of the law laid down by the Apex Court, it can only be held that the death of Sri.Vasu was in the accident arising out of and in the course of his employment with the 1st respondent."

18. In Param Pal Singh (supra), a 45 year old driver while driving the vehicle from Delhi to a distant place about 1152 Kms away from Delhi and while driving the truck, suffered a health set-back and therefore, he parked the vehicle on the road side. Immediately he was taken to a nearby hospital where the doctors declared him brought dead. In the above factual scenario, the Hon'ble Apex Court, after analyzing various decisions, held that :

"Applying the various principles laid down in the above MFA(ECC).41/2017

decisions to the facts of this case, we can validly conclude that there was CAUSAL CONNECTION to the death of the deceased with that of his employment as a truck driver. We cannot lose sight of the fact that a 45 years old driver meets with his unexpected death, may be due to heart failure while driving the vehicle from Delhi to a distant place called Nimiaghat near Jharkhand which is about 1152 kms. away from Delhi, would have definitely undergone grave strain and stress due to such long distance driving. 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 dependent solely upon his physical and mental resources & endurance, there was every reason to assume that the vocation of driving was a material contributory factor if not the sole cause 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 to the nature of employment indulged in with his employer which was in the course of such employer's trade or business."

19. On a perusal of the above decision, it can be concluded that in order to make an employer liable under Section 3 of the Employees Compensation Act, there should be a causal connection to the death MFA(ECC).41/2017

with the employment. The evidence available in this case is to be analyzed in the light of the above principle. As per the duty assigned to the deceased as driver of the KSRTC bus, he had to continuously work on two nights namely on 12.10.2012 and 13.10.2012. On 12.10.2012 night he had driven the bus from Kozhikode and reached Bangalore in the early morning on 13.12.2012. Thereafter, on the same day in the evening he had to start his return journey back to Kozhikode. The distance between Kozhikode and Bangalore by road is more than 360 k.m. It means that the deceased had to do the heavy work of the driver of a KSRTC bus during two nights continuously. It was in the meantime he sustained chest pain and died due to cardiac arrest. It is common knowledge that the job of the driver of a KSRTC bus especially running in such long distance routes during two successive nights is very tedious and as such cause much physical and mental stress and strain.

20. After the onward journey, he was taking rest inside the bus and thereafter, while he was preparing for the return journey, he developed chest pain followed by cardiac arrest. Therefore, it can be safely concluded that the tedious work as driver of stage carriage during the whole night in between 12.10.2012 and 13.10.2012 had aggravated his illness which resulted in his death. Therefore, it can be safely presumed that in this case there is causal connection between the employment of the deceased and the ailment which resulted in his death. In the above circumstance, the finding of the Employee's Compensation Commissioner that the deceased died due to the stress MFA(ECC).41/2017

and strain in connection with and during the course of his employment is in order and as such it is liable to be sustained.

21. With regard to the compensation assessed and awarded by the Employees Compensation Commissioner, there is no dispute. Therefore, I do not find any valid grounds to interfere with the finding in the impugned order passed by the Employees Compensation Commissioner and as such, this Appeal is liable to be dismissed.

In the result, this Appeal is dismissed, confirming the findings of the Compensation Commissioner.

Sd/-

C.Pratheep Kumar, Judge

sou/Mrcs/22.3.2024