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2005 DIGILAW 408 (HP)

NATIONAL INSURANCE COMPANY v. GURMEETO

2005-11-07

DEEPAK GUPTA

body2005
JUDGEMENT Deepak Gupta, J. (Oral).: This appeal under the Workmens Compensation Act (hereinafter referred to as the Act) is directed against the order of the Commissioner under the Workmens Compensation Act, Nalagarh (for short the Commissioner) in case No. 4/2000, decided on 31.1.2001, whereby the claimants have been held entitled to compensation of Rs.2,09,990/- and interest thereupon. In case of non deposit of amount the Insurance Company has been held liable to pay penalty at 10% of the total compensation. 2. The appeal was admitted on 29.10.2001 on the following substantial questions of law:- 1. Whether in the absence of any proximate nexus between the death and employment in which the deceased was engaged, claim petition filed by claimants is maintainable and the claimants are entitled to claim compensation under the provisions of Workmens Compensation Act and liability for payment of such compensation can be fixed upon the insurance company? 2. Whether the word "accident" appearing in Section 3 of the Workmens Compensation Act, 1923 with reference to legal liabilities, can notes any unintended and unexpected occurrence which produces hurt or loss and thus is a "mishap" not expected? 3. Whether the disease contradicted by the deceased which arose out of added peril as he drove the truck with a smashed wind-screen and suffered bad cold due to exposure and thereby, voluntarily and unnecessarily exposed himself to such added peril which did not arise out of and in the course of his employment, was covered under the provisions of the Workmens Compensation Act entitling the claimants to claim compensation? 3. The facts necessary for the decision of the case are that deceased Gurmail Singh was employed as a truck driver on truck No.HP-12-3847, owned by Sadhu Ram. This truck; was insured with the appellant-National Insurance Company. 4 The evidence on record shows that Gurmail Singh was driving this truck back from Guwahati to Chandigarh. This took was loaded with coal. As per the statement of Om Parkash PW-2, who was the cleaner of the truck, when the truck reached Patna some college students who were agitating threw stones on the truck and broke and wind screen of the truck. Thereafter the deceased-driver Gurmail Singh telephoned Sadhu Ram, owner of the truck at Nalagarh. Sadhu Ram asked him to bring the truck to Nalagarh in the same condition since it was loaded and it could not be left unattended. Thereafter the deceased-driver Gurmail Singh telephoned Sadhu Ram, owner of the truck at Nalagarh. Sadhu Ram asked him to bring the truck to Nalagarh in the same condition since it was loaded and it could not be left unattended. Thereafter the deceased drove the truck without the wind screen from Patna to Nalagarh and reached Nalagarh on 12.8.1999 at about 11.00 p.m. Due to exposure of wind and cold the driver was suffering from high fever and cold. He, unfortunately, died and next morning on 13.8.1999 at his residence. Sadhu Ram, the owner, has also supported this version. 5. The Commissioner came to the conclusion that the claimants were entitled to compensation. Mr. Ashwani Sharma, learned counsel appearing on behalf of the appellant, contends that the death of the deceased is not relatable to any injury and the disease of cold and fever has no connection with the nature of his job. Reference in this behalf is made to Section 3 of the Act which reads as follows:- "SECTION 3 Employers liability for compensation (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable:- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days: (b) in respect of any (injury, not resulting in death (or permanent total disablement), caused by an accident which is directly attributable to (i) the workman having been at the time, therefore, under the influence of drink of drugs; or (ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman, or (iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen. (2) If a workman employed in any employment, specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III, for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment; the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment: Provided that if it is proved:- (a) that a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment, and (b) that the disease has arisen out of and in the course of the employment, the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section: Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part in part B of Schedule 111 or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the occasion of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section. [(2A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was under more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.] (3) [That Central Government or the State Government], after giving, by notification in the Official Gazette, not less than three months, notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in schedule III, and shall specify in the case of employments so added the disease which shall be deemed for the purposes of this section to be occupational disease peculiar to those employments respectively, and thereupon the provisions of sub-section (2) shall apply in the case of a notification by the Central Government, within the territories to which this Act extends or, in case of a notification by the State Government, within the State as if such diseases had been declared by this Act to be occupational disease peculiar to those employments. (4) Save as provided by [sub-sections (2), (2A) and (3), no compensation shall be payable; to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment. (5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury;- (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) If an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act." 6. The contention raised in the three substantial questions of law, quoted hereinabove, are totally inter-linked and inter-connected and all of them are being considered together. The contention raised in the three substantial questions of law, quoted hereinabove, are totally inter-linked and inter-connected and all of them are being considered together. Section 3 provides that in case personal injury is caused to a workman then the employer is liable to pay compensation. Section 3(1) (b) provides that in case of death or permanent total disablement then even if the injury is directly attributable to the workman being under the influence of drugs or his having willfully disobeyed some directions given for the protection of workman or having willfully disregard? 1 any safety guard or safety devices, the employer shall still be liable. Section 3(2) relates to disease and it provides that if an employee contracts any of the diseases specified in the schedule then the employer is liable to pay compensation. Section 3(2) (b) provides that if the disease arises out of and in the course of employment the contraction of such disease shall be deemed to be an injury by accident within the meaning of this section. 7 Mr. Ashwani Sharma, Advocate, has relied upon the judgments of the Calcutta High Court in Gouri Kinkar Bhakat Vs. Messrs. Radha Kissen Cottaon Mills AIR 1933 Calcutta 220 and Devidayal Ralyaram Vs. Secretary of State AIR 1937 Sind 288 to urge that the deceased by driving the truck not having a wind screen himself invited trouble, and added to the peril faced by him and as such the insurance Company is not liable. These judgments are very old and were given under the unamended provisions of the Act. As per the Act, now amended, the employer is liable even when the workman is himself negligent or disobeys some specific instructions and safeguards issued in regard to their safety. In fact a reading of Section 3, aforesaid, makes it absolutely clear that in case of death or permanent disablement even if the workman totally disregards the safety guidelines then also the employer cannot escape liability. Therefore, the contention of workman not being entitled to compensation because of added peril has to be rejected. 8. Another important factor is that in the present case both, PW-2 and PW-3, the cleaner and owner have stated that after the wind shield broke the driver asked the owner what he should do. The driver may not have had the money to get the truck repaired at Patna. 8. Another important factor is that in the present case both, PW-2 and PW-3, the cleaner and owner have stated that after the wind shield broke the driver asked the owner what he should do. The driver may not have had the money to get the truck repaired at Patna. He could no have left the loaded truck at Patna. His employer asked him to bring the truck to Nalagarh. Therefore, even if the employee had to face additional peril this was because his employer asked him to do so. 9. It is next argued that the deceased had not died because of any injury, but died due to a disease and, therefore, unless the disease is one of those mentioned in the schedule and is relatable to the employment mentioned in the schedule the Insurance Company cannot be held liable. Reliance in this behalf was placed on a judgment of this court reported in Leela Devi and another Vs. Ram Lal Rahu and another 1990 (1) Sim. L.C. 1ST wherein when the deceased who was a watchman died due to cold during July duty hours a learned Single Judge of this Court held that the disease was not relatable to an injury and cannot be considered to by physical injury of occupations! injury under Section 3 of the Act and Schedule III thereof. It was held that the word injury and accident imply the existence of some external factor to cause death apart from internal ailment of the body. The learned Single Judge was of the view that some casual connection between the employment and the death independently of the bodily ailment must be shown, to invoke section 3 of the Act. It was further held that mere death in ordinary course by some bodily ailment or even in the course of employment cannot attract the liability of the employer under Section 3. The learned Single Judge considered a number of decisions of various courts including the Apex Court judgment in Mackinnon Mackenzie and Co. Private Ltd. Vs. Ibrahim Mohammad Issak AIR 1970 S.C. 1906. Reliance was also placed on the judgment of the Patna High Court in Superintendent of Mines Vs. Lalo Devi 1985 ACJ 850. Unfortunately, it appears that the notice of the learned Single Judge was, not drawn to the judgment of the Apex Court in Lalo Devi Vs. Private Ltd. Vs. Ibrahim Mohammad Issak AIR 1970 S.C. 1906. Reliance was also placed on the judgment of the Patna High Court in Superintendent of Mines Vs. Lalo Devi 1985 ACJ 850. Unfortunately, it appears that the notice of the learned Single Judge was, not drawn to the judgment of the Apex Court in Lalo Devi Vs. Superintendent of Mines 1988 ACJ 886 wherein the judgment of the Patna High Court had been reversed. In fact the learned Single Judge relied upon a judgment of the High Court which had been over-ruled by the Supreme Court. 10. The attention of this court has been drawn to the judgment of the Apex Court in Messrs. Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Ritta Farnandes 1969 ACJ 419 wherein it held as follows:- "It is well established that under section 3 of the Workmens Compensation Act there must be some casual connection between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering of while suffering from a particular disease he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or his death was due not only to the disease but the disease coupled with the employment then it could be said that the death arose out of the employment and the employer would be liable. Even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accident, his death results from injury by accident: 11. In Mackinnon Mackenzie and Co. Private Ltd. Vs. Ibrahim Mohammad Issak AIR 1970 S.C. 1906, the Apex Court held as follows;- "To come within the Act the injury by accident must arise both out of and in the course of employment. In Mackinnon Mackenzie and Co. Private Ltd. Vs. Ibrahim Mohammad Issak AIR 1970 S.C. 1906, the Apex Court held as follows;- "To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean “in the course of the work which the workman is employed to do and which is incidental to it." The words "arising out of employment" are understand to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the matter, it is reasonable to believe the workman would not otherwise have suffered" There must be a causal relationship between the accident and the employment. If the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act." 12. In Divisional Personnel Officer, Southern Railway Vs. Karthiayani 1987 ACJ 719 the workman drank water from a drum kept for the purpose in the employers premises. He developed acute gastro-enteritis and died. A Division Bench of the Kerela High Court at Ernakulam held that the death had arisen out of and in the course of employment. 13. All these judgments and many other judgment were considered by a Division Bench of this court in FAO No. 50 of 1990, H.R.T.C. and another Vs. Rajinder Kumar and others. The facts of the said case were that the workman was posted as a driver with H.R.T.C. He was on night duty as a driver with the bus which was plying between Solan and Mahlog. After he reached Mahlog the driver developed cardial infarction and died. The employer contested the claim on the ground that the deceased had died due to a heart attack and not due to any injury and as such it was not liable. The decision of the learned Single Judge in Leela Devis case supra was relied upon by the counsel appearing for the employer. The employer contested the claim on the ground that the deceased had died due to a heart attack and not due to any injury and as such it was not liable. The decision of the learned Single Judge in Leela Devis case supra was relied upon by the counsel appearing for the employer. The Division Bench dealing with the said decision held as follows:- "We are afraid we cannot agree with the decision arrived at in the said case, which appears to be more on the facts of the case found there is and not the relevant and correct principles to be applied. The learned Single Judge in our view has applied too narrow a construction on the scope of Section 3 of the Act." 14. After considering the entire law and the provisions of the Act the Division Bench held as follows:- "The line of interpretation commended by these and several other decisions of Courts is one of liberal construction having regard to the proclaimed object of a social welfare legislation of the kind under our consideration. It is in pursuit of such approach the theory of national or extended liability came to be propounded and if the employees unexplained or apparently natural death has occurred during the course of employment also indicating even any casual connection between the nature of employment and the cause of the death as also when the employment was an attributable cause or such employment operated to accelerate the death notwithstanding that even the death was not only due to the disease from which the workman was suffering but also on account of the factors which have a bearing upon or which are coupled with the employed etc, and such or similar factors were shown to present in a given case the employer cannot avoid his liability and it can be well said that the death occurred as a consequence of and it the course of employment. 15. 15. Viewed in the background of the principles laid down in the above pronouncements, we are of the view that the conclusion to be arrived at on the facts and circumstances of the case does not pose any problem or room for doubt that the death of Kewal Ram, the driver in question was on account of any injury caused by an accident arising out or and in the course of his employment due to the stress and strain of the driving of the bus by the victim The conclusion of ours becomes not only inevitable and inescapable on the facts found particularly, in view of the fact that the Doctor was specific about the cause of the death being massive myocardial infarction and the further fact that the victim never had such ailment before and that he suffered such attack as a result of which Me died while resting after bringing the Bus to the terminal destination and during the course of his resting in the bus itself that night before he had to recommence his return journey and next morning. 16. Following the aforesaid decision, I have no hesitation in holding that the death of the deceased was on account of injury as interpreted in the various judgments and as contemplated in Section 3(2) (b) of the Act. The driver contracted the disease during the course of employment. Since he had to drive a truck without a wind screen he had to face the vagaries of weather. On this account he suffered from extreme cold and high fever. He died as a result thereof. There is not only a causal connection but in fact a direct next between the employment and the disease. It was on account of employment that the driver contracted the illness. Therefore, the employer was liable to pay compensation and since the truck was insured the appellant-Insurance Company is liable to pay the compensation. 17. I am further fortified by the judgment of the Apex Court in State of Rajasthan Vs. Ram Prasad and another 2001 ACJ 647 where in a case where the employee was struck by lightening the Apex Court held that this is also an accident arising out of and in the course of employment. 18. 17. I am further fortified by the judgment of the Apex Court in State of Rajasthan Vs. Ram Prasad and another 2001 ACJ 647 where in a case where the employee was struck by lightening the Apex Court held that this is also an accident arising out of and in the course of employment. 18. However, the contention of the Insurance Company that it could not have been directed to pay 10% penalty in case of default or deposit of the amount is correct. It is well settled law that the Insurance Company cannot be held liable to pay penalty. Therefore, this direction of the Commissioner is set is aside. 19. In view of the above discussion appeal is partly allowed and the direction of the Commissioner that the Insurance Company shall be liable to pay penalty at the rate of the 10% of the total amount is set aside. However, the rest of the order is upheld and it is ordered that the Insurance Company is liable to pay the amount of Rs.2,09,920/- alongwith interest, as awarded by the Commissioner. No costs.