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Madhya Pradesh High Court · body

2007 DIGILAW 775 (MP)

ORIENTAL INSURANCE CO LTD v. SHANTI DEVI PANDEY

2007-07-23

U.C.MAHESHWARI

body2007
Judgment ( 1. ) THIS appeal is directed by the appellant insurer under section 30 of the Workmens Compensation act, 1923 (hereinafter referred to as the act) being aggrieved by the order dated 14. 8. 1998 passed by the Commissioner of labour Court (constituted under the Act) in case No. 25 of 1997 W. C. Act (F) awarding the claim of respondent Nos. 1 to 3 regarding death of their predecessor Raj kumar Pandey alias Pappu for Rs. 1,32,822 with penalty of 25 per cent on such sum and also interest at the rate of 12 per cent per annum. ( 2. ) THE facts giving rise to this appeal in short are that deceased Raj Kumar alias pappu, aged 22 years, the husband of respondent No. 1, father of respondent No. 2 and son of respondent No. 3, was working under the employment of respondent No. 4 as driver on her truck bearing registration no. MP 19-A 5030. On dated 3. 11. 1996 at about 9. 10 in the morning, the aforesaid truck was being repaired in the auto garage of Raju alias Anwar Khan at Birla Road, satna and the deceased, being driver and on duty, was looking after such truck. The other companion drivers were also present there. At the aforesaid time, Mahendra kumar Jain, husband of respondent No. 4 and his brother Narendra Kumar Jain accompanied with one Chunni Lal, came there and badly beat the deceased. Result-antly, deceased sustained injuries and was admitted in the Birla Vikas Hospital for treatment, where he succumbed to such injuries. The salary of the deceased was rs. 1,200 p. m. Besides this, he was also getting Rs. 25 per day as allowance. He had a valid and effective driving licence. The vehicle was registered in the name of respondent No. 4 and insured with the appellant. The risk of driver and cleaner of the truck was also covered under the certificate of insurance. Due to untimely death of the predecessor of the respondents they have been deprived of the sole breadwinner of the family and also sustained mental pain and agony. With these pleadings, respondent Nos. 1 to 3 preferred their claim for the compensation of Rs. 3,24,000 with penalty and interest at the rate of 12 per cent per annum. ( 3. Due to untimely death of the predecessor of the respondents they have been deprived of the sole breadwinner of the family and also sustained mental pain and agony. With these pleadings, respondent Nos. 1 to 3 preferred their claim for the compensation of Rs. 3,24,000 with penalty and interest at the rate of 12 per cent per annum. ( 3. ) IN reply of the respondent No. 4, the death of said Raj Kumar Pandey during the course of discharging the duty as an employee of respondent No. 4 was admitted while the averments regarding his murder are denied. She also admitted the ownership of such truck. She contended that such truck was being repaired in the auto garage of one Raju alias Anwar and the deceased being under her employment as driver, was looking after such repairing. As per further averments in the course of repairing of such truck, the deceased fell down from the truck and sustained the injuries. He was not beaten by above named persons. The salary of the deceased Rs. 1,200 per month and allowance of Rs. 25 per day are also admitted. The criminal case against her husband has falsely been registered. Deceased was not the regular employee of the respondent No. 4. In any case, on holding the liability, respondent No. 4 is not responsible to indemnify the claim and the same be saddled against the appellant insurer as the truck was insured with it. ( 4. ) IN reply of the appellant insurer, the averments made in the claim petition are denied. The deceased did not die during the course of discharging his duty on such truck as an employee of respondent No. 4. He did not possess the valid and effective driving licence to drive such vehicle. The quantum of salary and allowance are also denied. Within the prescribed time, no intimation regarding the incident was given to it. In special pleadings, it was pleaded that the death of Raj Kumar was not the cause and consequence of any vehicular accident but in fact he was murdered by the husband of respondent No. 4 and some other per-sons. Thus, the appellant insurer is not liable to indemnify any claim of respondent nos. 1 to 3 and prayed for dismissal of the claim against it. ( 5. Thus, the appellant insurer is not liable to indemnify any claim of respondent nos. 1 to 3 and prayed for dismissal of the claim against it. ( 5. ) AFTER framing the issues, evidence was recorded and on appreciation of it, the labour Court awarded the claim of respondent Nos. 1 to 3 for the aforementioned sum along with penalty and interest by holding that deceased Raj Kumar Pandey died while discharging his duty as an employee (driver) of respondent No. 4 on the aforesaid truck. The liability to indemnify such claim has been saddled jointly and severally against the appellant and the respondent No. 4. The same is challenged by the appellant insurer in this appeal. ( 6. ) VIDE the order dated 7. 12. 1998, this appeal was admitted for final hearing. As per averments of the appeal memo, this appeal has been preferred on the following substantial questions of law: (a) Whether in the facts and circumstances of the case the appellant insurance company can be fastened with the liability to pay compensation? (b) Whether in the facts and circumstances of the case can it be held that the death of the deceased Raj Kumar pandey took place in connection with the affairs of his employment? (c) Whether in the facts and circumstances of the case, the findings of the learned Commissioner are perverse and contrary to law? it appears that the appeal was admitted on the aforesaid substantial questions of law, hence, the court has to answer the aforesaid questions in this appeal. ( 7. ) MR. B. D. Jain, learned counsel for the appellant insurer while advancing his arguments said that in view of the available evidence and in the facts and circumstances of the case, the death of Raj Kumar Pandey could not be inferred while discharging his duty as driver on the aforesaid truck under the employment of the respondent no. 4. As such, he was badly beaten by the husband of respondent No. 4 and his associates. Resultantly, he sustained injuries and ultimately he succumbed to such injuries. In respect of such murder, a criminal case was also registered against such persons. Under such circumstances, the liability to indemnify the claim could not be saddled against the appellant and prayed for answering the aforesaid questions in favour of the appellant by allowing this appeal. ( 8. Resultantly, he sustained injuries and ultimately he succumbed to such injuries. In respect of such murder, a criminal case was also registered against such persons. Under such circumstances, the liability to indemnify the claim could not be saddled against the appellant and prayed for answering the aforesaid questions in favour of the appellant by allowing this appeal. ( 8. ) NO one has appeared on behalf of any of the respondents to respond to the aforesaid arguments. ( 9. ) HAVING heard the learned counsel, I have carefully examined the record and also perused the impugned order. As per reply of respondent No. 4, it is admitted fact that deceased was working as driver under the employment of respondent No. 4, the registered owner of the truck and at the time of accident, said truck was being repaired in some auto garage, where the deceased was looking after such repairing work on behalf of respondent No. 4 in discharging his duty. At the same time, either he fell down from said truck and sustained the injuries or was badly beaten by the aforenamed persons or some other persons by which he sustained the injuries and succumbed to such injuries. In any case, in view of the admission of respondent No. 4 and as per other evidence available on the record, deceased sustained such injuries while discharging his duty as driver under the employment of respondent No. ( 10. ) THE provision of compensation under the Act has been enacted by keeping in view the social justice for the victim employee like the deceased and his dependent legal representatives. Thus, if any accident takes place during the course of discharging duty by an employee then the employer is liable to indemnify the liabilities arising out of such accident. Besides this, as per the terms and conditions of the insurance policy, the concerned insurer is also liable to indemnify such liabilities. In the aforesaid circumstances, respondent No. 4 and the appellant cannot escape to indemnify the claim of respondent Nos. 1 to 3. Under such premises, the Labour Court has not committed any error in saddling the liability to indemnify the claim against the respondent No. 4 and the appellant jointly and severally. ( 11. ) MY aforesaid view is fully fortified by the decision of the Apex Court in the matter of Mackinnon Mackenzie and Co. 1 to 3. Under such premises, the Labour Court has not committed any error in saddling the liability to indemnify the claim against the respondent No. 4 and the appellant jointly and severally. ( 11. ) MY aforesaid view is fully fortified by the decision of the Apex Court in the matter of Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak, 1969 acj 422 (SC), in which it was held as under: " (5) 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 work which the workman is employed to do and which is incidental to it. The words arising out of employment are understood 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 master, 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. . . " Relying on the aforesaid decision of the supreme Court, this court in the matter of united India Insurance Co. Ltd. v. Heerabai, 1987 ACJ 949 (MP), held as under: " (10) In the present case, on evaluation of evidence on record the learned Commissioner has reached a definite conclusion that the deceased Omprakash Singh while employed as a driver of the respondent No. 2 had to take the bus to the Railway Station, Sagar and when he was stabbed by one Munnalal he was on duty. From the evidence and the finding recorded by the learned Commissioner it is clear that the deceased Omprakash singh was required to take the bus to the railway station at a particular time. This was a circumstance attending his employment because at that time and place omprakash Singh had to take the bus at railway station where he was stabbed by one Munnalal in consequence of which he died. This was a circumstance attending his employment because at that time and place omprakash Singh had to take the bus at railway station where he was stabbed by one Munnalal in consequence of which he died. The deceased had to take the bus to the railway station as part of his duty where he was given a fatal blow. The incident of inflicting knife injury at the time and place when the deceased was on duty was a proximate cause. The injury had resulted to the deceased from the risk incidental to the duties of his service and unless he was engaged in the duty owing to his employer, in all probability the workman, that is, the deceased Omprakash Singh would not have otherwise suffered the injury. In those circumstances, it can well be said that a causal connection was established between the accident and the employment and the accident had occurred on account of the risk which was an incident of the employment. There is neither any pleading nor any suggestion that the deceased by his own act added to the said incident or the same was brought about by himself. . . " Besides the above, such question is also answered by this court in the matter of oriental Fire and General Ins. Co. Ltd. v. Sirpat, 1986 ACJ 388 (MP), in which it was held as under: " (5) Since the deceased, who was a cleaner, was an employee of the insured, the proviso to section 95 (1) extends the scope of insurance risk to another category of persons, namely, to those who are employees of the insured and in respect of whom the insured is under a liability to pay compensation under the workmens Compensation Act. " ( 12. ) IN view of the aforesaid discussion, the afore-quoted substantial questions of law are answered against the appellant and it is held that the deceased Raj Kumar pandey, the predecessor of respondent Nos. 1 to 3 had died during discharging the duty as driver on the aforesaid truck under the employment of the respondent No. 4. In pursuance of it, it is also held that the commissioner of Labour Court has not committed any error, perversity or infirmity in saddling the liability to indemnify the claim against the appellant along with respondent No. 4 jointly and severally. ( 13. In pursuance of it, it is also held that the commissioner of Labour Court has not committed any error, perversity or infirmity in saddling the liability to indemnify the claim against the appellant along with respondent No. 4 jointly and severally. ( 13. ) RESULTANTLY, the appeal being devoid of any merit, deserves to be and is hereby dismissed. There shall be no order as to costs. Appeal dismissed.