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2006 DIGILAW 395 (UTT)

UNITED INDIA INSURANCE CO. LTD. v. NEEMA BHANDARI

2006-07-31

C.S.RAWAT, RAJEEV GUPTA

body2006
RAJEEV GUPTA, C. J. ( 1 ) THIS is insurer's appeal under section 30 of the Workmen's compensation Act, 1923 against the award dated 8. 10. 2004 passed by Commissioner for Workmen's Compensation/assistant labour Commissioner, Haldwani, District nainital in Case No. WCA 63 of 2002, whereby the appellant insurance company was directed to pay a sum of Rs. 5,45,140 (rupees five lakh forty-five thousand one hundred and forty) as compensation and interest to the claimant. ( 2 ) NEEMA Bhandari, the respondent No. 1, filed an application before the Commissioner for Workmen's Compensation claiming compensation for the death of her husband Laxman Singh Bhandari, who died during the course of his employment with respondent No. 2 on 8. 7. 2002, when he suffered heart attack while boarding a bus at Bus Station, Pithoragarh for going to his workplace, Chirdila. ( 3 ) THE employer of deceased Laxman singh Bhandari and the appellant insurance company contested the claim on the plea that the death of Laxman Singh Bhandari did not occur during the course of his employment and as such, the claimant was not entitled to any compensation under the workmen's Compensation Act. ( 4 ) THE Commissioner for Workmen's compensation, on the evidence led by the parties, found that Laxman Singh Bhandari suffered heart attack while boarding bus at bus Station, Pithoragarh for going to his workplace, Chirdila. Following the decision of Karnataka High Court in the case of Assistant Executive Engineer, Bijapur v. Shantavva, 2003 ACJ 79 (Karnataka), it was held that the death of Laxman Singh bhandari was during the course of his employment. Considering the income of the deceased and his age, the Commissioner assessed the compensation at Rs. 3,68,340. A further sum of Rs. 1,76,800 was awarded as interest at the rate of 12 per cent per annum for the period between 8. 7. 2002 and 8. 7. 2004 (there is an apparent mistake in the computation of the amount of interest, as the correct amount of interest at the rate of 12 per cent per annum on the compensation amount of Rs. 3,68,340 for a period of two years from 8. 7. 2002 to 8. 7. 2004 would be Rs. 88,400 and not rs. 1,76,800 as assessed by the Commissioner in the impugned award ). ( 5 ) MR. 3,68,340 for a period of two years from 8. 7. 2002 to 8. 7. 2004 would be Rs. 88,400 and not rs. 1,76,800 as assessed by the Commissioner in the impugned award ). ( 5 ) MR. D. S. Patni, learned counsel for the appellant insurance company submitted that the Commissioner for Workmen's compensation has erred in holding that the death of Laxman Singh Bhandari was during the course of his employment. Learned counsel for the appellant, placing reliance on the dictum of the Apex Court in the case of Jyothi Ademma v. Plant Engineer, nellore Thermal Station, 2006 ACJ 2165 (SC), contended that as the deceased died on account of heart attack, suffered by him while boarding a bus at Bus Station, pithoragarh, which is situated at a distance of about 120 km from his workplace at chirdila, the claimant has miserably failed in establishing that the death of deceased laxman Singh Bhandari was during the course of his employment as a dumper driver with respondent No. 2. ( 6 ) MR. Gopal Narain, learned counsel for claimant Neema Bhandari, respondent no. 1, on the other hand, supported the award and submitted that the Commissioner has rightly held that the death of laxman Singh Bhandari was during the course of his employment. ( 7 ) DECEASED Laxman Singh Bhandari was in the employment of respondent No. 2 as a dumper driver. He suffered heart attack on 8. 7. 2002 while boarding a bus at bus Station, Pithoragarh. There is not even an iota of evidence to establish that the deceased Laxman Singh Bhandari suffered heart attack on account of any stress or strain of his employment. ( 8 ) TRUE, Workmen's Compensation Act, 1923 is a beneficial legislation and as such, ambiguity, if any, in the provisions of the act has to be resolved in such a manner that the same advances the object sought to be achieved by enacting this Act. Now, we will examine the provisions of section 3 of the Act with a view to ascertain as to whether the claimant is entitled to get compensation under the provisions of the act for the death of her husband Laxman singh Bhandar. Section 3 of the Workmen's Compensation Act, 1923 reads as follows: "3. Now, we will examine the provisions of section 3 of the Act with a view to ascertain as to whether the claimant is entitled to get compensation under the provisions of the act for the death of her husband Laxman singh Bhandar. Section 3 of the Workmen's Compensation Act, 1923 reads as follows: "3. Employer's 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 thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful 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 the 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 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 C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation 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 the 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) The Central Government or the state Government, by notification in the official Gazette, after giving 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 diseases which shall be deemed for the purposes of this section to be occupational diseases 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 occupational diseases 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. " ( 9 ) THE Supreme Court, in the case of jyothi Ademma v. Plant Engineer, Nellore thermal Station, 2006 ACJ 2165 (SC), while considering the entitlement of the claimant to get compensation under the workmen's Compensation Act, 1923 in a case where the workman died on account of the heart attack suffered by him at his workplace, observed in paras 6 to 8: " (6) Under section 3 (1) it has to be established that there was some causal 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 not due only to the disease but also the disease coupled with the employment, then it can be said that death arose out of the employment and the employer would be liable. (7) The expression 'accident' means an untoward mishap which is not expected or designed. 'injury' means physiological injury. In Fenton v. Thorley and Co. Ltd. , (1903) AC 448, it was observed that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A. C. in trim Joint District, School Board of management v. Kelly, (1914) AC 676, as follows: 'i think that the context shows that in using the word "designed", Lord Macnaghten was referring to designed by the sufferer. ' (8) But in the present case, it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded, the High Court's judgment does not suffer from any infirmity. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded, the High Court's judgment does not suffer from any infirmity. " ( 10 ) REVERTING to the present case, there is no evidence that Laxman Singh Bhandari suffered heart attack on account of any stress or strain of his employment. Bus station at Pithoragarh, where Laxman singh Bhandari suffered heart attack while boarding the bus, is situated at a distance of about 120 km from his workplace at chirdila. On these facts and in view of the above-quoted dictum of Apex Court, it cannot be held that Laxman Singh Bhandari died during the course of his employment. The claimant, therefore, is not entitled to get any compensation under Workmen's compensation Act, 1923. ( 11 ) FOR the foregoing reasons, the appeal filed by the appellant insurance company under section 30 of the Workmen's Compensation act is allowed and the impugned award dated 8. 10. 2004 passed in Case No. WCA 63 of 2002 is hereby set aside. ( 12 ) WHILE admitting the appeal for hearing vide order dated 7. 12. 2004, respondent no. 1 was permitted to withdraw 50 percent of the amount deposited by appellant insurance company. The balance amount of 50 per cent is still lying with the Commissioner for Workmen's Compensation. The appellant insurance company shall be entitled to withdraw the said amount. So far as the balance 50 per cent of the amount, which was permitted to be withdrawn by the claimant and has been withdrawn is concerned, we leave it open to the appellant insurance company to either write off or recover the same from the claimant. ( 13 ) NO order as to costs. Appeal allowed. --- *** --- .