The Oriental Insurance Company ... vs Smt.Sultana Begum 4 Ors
2023 Latest Caselaw 429 Tel

             HONOURABLE SRI JUSTICE M.LAXMAN

       CIVIL MISCELLANEOUS APPEAL No.1343 of 2008

JUDGMENT:

1. The present civil miscellaneous appeal has been directed

against award dated 21.11.2007 in W.C.No.7 of 2006 on the file of

Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour-I at Hyderabad (hereinafter referred to as

'the Commissioner'), whereunder, the claim of respondent Nos.1 to

4 herein for grant of compensation for death of one Mr. Syed

Sabeer Hussain (hereinafter referred to as 'deceased'), was allowed

granting compensation of Rs.3,52,024/- including stamp fee and

advocate fee. Aggrieved by the same, the present civil

miscellaneous appeal is filed at the instance of opposite party No.2

therein i.e., insurance company.

2. The appellant herein is opposite party No.2/insurance

company, respondent Nos.1 to 4 herein are claimants/legal heirs of

deceased and respondent No.5 herein is opposite party No.1/owner

of the vehicle before the Commissioner.

3. The main grievance of the appellant-insurance company is

that there is no evidence on record to show that the death of the

deceased was during the course his employment with respondent

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No.5. It is their further contention that the cause of death was not

relating to employment of the deceased. Therefore, the appellant-

insurance company is not liable to pay compensation.

4. It is the case of respondent Nos.1 to 4 that deceased was

engaged by respondent No.5 as driver of vehicle bearing No.

AP02U6336. On 25.04.2005, the said vehicle left from Hyderabad

to Mumbai. After unloading, the vehicle was parked on road side

for cleaning, meanwhile, the driver i.e., deceased complained chest

pain. Immediately, he was taken to hospital where, while

undergoing treatment he died, as such, said death was during the

course of his employment. Further, heart stroke was on account of

hectic travelling of nearly 12 hours from Hyderabad to Mumbai,

which resulted strain, which in turn resulted into heart stroke.

Therefore, it is their contention that death was during the course of

employment and it is related to employment. Hence, they prayed to

dismiss the present appeal.

5. A close scrutiny of First Information Report (FIR) discloses

that the deceased was driver of the vehicle bearing No.AP02U6336.

It is also not seriously in dispute that the deceased left from

Hyderabad to Mumbai on 25.04.2005 and travelling distance was

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nearly 12 hours. It is not the case of the owner of the vehicle i.e.,

respondent No.5 that there was spare driver on the vehicle to

reduce the strain of travelling continuously for 12 hours. The

Commissioner while considering the case of death has taken into

account multiple decisions of various High Courts to the effect that

continuous driving is causative factor for aggravating cause of

cardiac failure, such a death is related to employment injury. Such

findings are based on evidence on record and the legal position laid

down by various High Courts. Such findings do not suffer from any

perversity.

6. The second contention put forth by learned counsel for the

respondent Nos.1 to 4 is that the appeal is liable for dismissal for

non-compliance of pre-deposit condition to file the appeal. It is

contended that while depositing the amount, the appellant-

insurance company which subrogated into the shoes of employer of

the deceased has not complied the order of appeal and filed the

present appeal without accompanying the memorandum of appeal

with a certificate issued by the Commissioner. Therefore, this

appeal is liable to be dismissed for non-complying the order of

appeal.

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7. In this regard, it is apt to refer to provisio under Section 30 of

Workmen's Compensation Act, 1923 (hereinafter referred to as "the

Act"), which reads as under:

"Section: 30 Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:--

(a) to (e)...

Provided...

Provided...

Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.

(2)...

(3)..."

8. A reading of the above provision clearly establishes that a

memorandum of appeal shall be accompanied with certificate

issued by the Commissioner to the effect that the amount payable

under the ordered appeal is deposited with him. The practice that

is being practiced in numbering the appeal is that the insurance

company or any other appellant, who files appeal under the Act,

gets endorsement of deposit from the Commissioner's office and

annex the same to the memorandum of grounds of appeal and

seeks for numbering of appeal.

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9. However, the appeal cannot be dismissed on the above

technical ground raised by the learned counsel for respondent

Nos.1 to 4, for the reason that there is mistake on the part of

Scrutiny Section in numbering the appeal. Had such objection

been raised when the appeal is numbered, the appellant would

have given an opportunity to comply the same. Hence, for the said

reasons this appeal cannot be dismissed on the above raised

technical ground at the fag-end of the proceedings.

10. It is most unfortunate that the Scrutiny Section of this Court

has failed to take notice of requirement of above referred provision

under Section 30 of the Act, which is mandatory in nature. The

pre-condition under the said provision is that the appellant must

produce certificate issued by the Commissioner that the amount

payable under ordered appeal has been fully complied with by way

of deposit with him. Instead of the said procedure, a new

procedure has been adopted to get the appeal numbered under the

Act, which is unknown to law. Therefore, the Registrar (Judicial)

shall see that all the appeals filed under the Act hereinafter shall be

numbered only, if they are accompanied with certificate issued by

the Commissioner to the effect that the amount payable under the

order of appeal has been fully deposited with him. Only, if such

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certificate is produced, the appeal shall be numbered. A copy of

this order shall be circulated to the Registrar (Judicial), so as to

enable him to issue necessary instructions to the Scrutiny Officers

to comply with the direction.

11. The appeal does not involve any substantial question of law

and the same is devoid of merits. Hence, the same is liable to be

dismissed.

12. In the result, the civil miscellaneous appeal is dismissed

confirming the order dated 21.11.2007 in W.C.No.7 of 2006 on the

file of Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour-I at Hyderabad. There shall be no order

as to costs. Miscellaneous petitions, if any, pending, shall stand

closed.

______________ M.LAXMAN, J Date: 30.01.2023 GVR