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2009 DIGILAW 444 (PNJ)

Sharbati Devi v. Haryana Roadways

2009-03-05

RAKESH KUMAR JAIN

body2009
Judgment Rakesh Kumar Jain, J. 1. Challenge in this appeal is to the order dated 30.3.1989 passed by the Commissioner, Hisar Circle, Hisar under the Workmens Compensation Act, 1923 (for short the Act) whereby the application for compensation filed by the appellants was dismissed. 2. Briefly stated, the facts of the case are that Bhura Ram, son of Bhani Ram, husband of appellant No. 1 and the father of appellant No. 2 was employed as a bus driver in Haryana Roadways, Sirsa. He was appointed as a driver on 24.10.1969 and was allotted driver No. D25. After serving for 17 years as a driver in Haryana Roadways, Bhura Ram died on 13.5.1986 due to tuberculosis (for short TB). After the death of Bhura Ram, the appellants filed an application for compensation under the Act alleging, inter alia, that Bhura Ram died due to TB which he had contracted during the course of his employment. It was claimed that the disease suffered by the deceased was an occupational disease. The appellants claimed that at the time of death, Bhura Ram was drawing salary of Rs. 1,340 per month and was of the age of 45 years. The appellants thus, claimed total compensation of Rs. 90,819.84. 3. In the written statement filed by the respondents, it was denied that Bhura Ram died because of the disease arising out of and in the course of employment. It was also alleged that his monthly wages were Rs. 1,284 and he was 4672 years of age at the time of death. 4. On the pleadings of the parties, the following issues were framed: "(i) Whether the applicant is entitled to the amount as claimed in the claim application? (ii) Relief." 5. The appellants examined Sharbati Devi as AW 1 and Dr. Gulab Singh, Civil Hospital, Sirsa as AW 2 whereas the respondent examined Sham Lal Wadhwa, clerk, Haryana Roadways, Sirsa as RW 1. The learned court below vide its impugned order dated 30.3.1989 held that TB is not an occupational disease because the doctor examined by the appellants has not confirmed it. 6. Mr. G.S. Bawa, learned counsel for the appellants has vehemently contended that the learned court below has erred while appreciating the evidence led by the appellants. The learned court below vide its impugned order dated 30.3.1989 held that TB is not an occupational disease because the doctor examined by the appellants has not confirmed it. 6. Mr. G.S. Bawa, learned counsel for the appellants has vehemently contended that the learned court below has erred while appreciating the evidence led by the appellants. It is submitted that Sharbati Devi, AW 1, has categorically stated that her husband Bhura Ram suffered from TB during the course of his employment and had ultimately died. Dr. Gulab Singh, who appeared as AW 2 stated that Bhura Ram was a driver and a driver could also suffer from TB. He also deposed that Bhura Ram was admitted to the hospital on 29.4.1986 and had died on 13.5.1986 because of TB. In the cross-examination, he stated that the disease of TB is also related to the occupation of driver because in case any passenger in the bus is suffering from TB then it could affect the health of the driver also because generally the buses are overcrowded and the driver also suffer from exertion which could be the reason of contracting this disease. 7. Counsel for the appellants also referred to decision of this court in the case of Indian News Chronicle Ltd. v. Luis Lazarus, AIR (38) 1951 Punjab 102; a decision of Bombay High Court in the case of Mackinnon Mackenzie & Co. Pvt. Ltd. v. Habiba Eusoof Karbelkar, 1967 ACJ 188 (Bombay); a decision of Madhya Pradesh High Court in Mariam Bee v. Town and Country Development Authority, 1984 ACJ 248 (MP) and a decision of Allahabad High Court in Parwati Devi v. H.R. Sugar Factory (P) Ltd., 1971 ACJ 451 (Allahabad). 8. Learned counsel for the respondent has vehemently contended that there is no evidence on record to prove that Bhura Ram had died because of the disease suffered during the course of employment. 9. I have heard both the counsel for the parties and have perused the record with their assistance. 10. Besides the statement of Sharbati Devi, AW 1, who has categorically stated that her deceased husband has contracted disease of TB during the course of employment of 17 years as a driver, Dr. 9. I have heard both the counsel for the parties and have perused the record with their assistance. 10. Besides the statement of Sharbati Devi, AW 1, who has categorically stated that her deceased husband has contracted disease of TB during the course of employment of 17 years as a driver, Dr. Gulab Singh who appeared as AW 2, stated in the cross-examination that a driver could also suffer from disease of TB because if any passenger in the bus, which is generally overcrowded is suffering from that disease, then there are chances of driver also contracting the same due to exertion. No evidence to the contrary has been produced by the respondent by examining any doctor. 11. In the case of Indian News Chronicle Ltd. v. Luis Lazarus, AIR (38) 1951 Punjab 102, death of the employee had occurred due to pneumonia. The nature of duty of the deceased was to go into a heating room and from there to a cooling plant where the temperature was kept considerably low. It was held that injury caused by accident is not confined to physical injury but also to a strain which causes exposure to draught or causes a chill. In the case of Mackin- non Mackenzie & Co. Private Ltd. v. Habiba Eusoof Karbelkar, 1967 ACJ 188 (Bombay), the deceased was working as an employee on a ship. He complained of chest pain and breathlessness while on voyage. Upon medical check-up, it was found that he had heart trouble. He was allowed to be repatriated to his country but while on his way back he died on account of coronary thrombosis. The disease was found to be chronic but it was found that it was aggravated by strenuous duty of 12 hours per day and due to strain the employee had died. Therefore, it was held that cause of strenuous duty of 12 hours per day was found to be strictly attributable to the specific injury suffered. In the case of Mariam Bee v. Town and Country Development Authority, 1984 ACJ 248 (MP), the workman died due to heart failure. His wife was ill and was admitted to hospital. He requested for leave to look after his wife on the date of his death but his leave was refused and he was told that if he wanted leave, his services would be terminated. His wife was ill and was admitted to hospital. He requested for leave to look after his wife on the date of his death but his leave was refused and he was told that if he wanted leave, his services would be terminated. The deceased was directed to go with others for demolition of structures of encroachment and when the demolition could not be carried out, the deceased was directed to go back to the site of his usual work. Physical stress and strain coupled with mental tension resulted in cardiac failure which was connected with his employment. In the case of Parwati Devi v. H.R. Sugar Factory (P) Ltd., 1971 ACJ 451 (Allahabad), the deceased workman was a chronic sufferer from tuberculosis of lungs. The Workmens Compensation Commissioner allowed the application for compensation holding that disease of tuberculosis was contracted by the workman during the course of his employment and being of the nature of an occupational disease held that his widow was entitled to compensation, even though death may have been caused due to the disease itself resulting in the rupture of veins in the lungs. The said order of the Compensation Commissioner was set aside by the High Court and the matter was remanded to him on the ground that it was difficult to hold that tuberculosis could be said to be an occupational disease in the case of deceased workman, who was working merely as a carpenter in the factory. After remand, matter was re-heard by the Workmens Compensation Commissioner and the application was rejected. The matter went up again before the High Court wherein it was held that "the mere fact that the deceased workman was a chronic sufferer from tuberculosis of lungs and the physical phenomena of the rupture of lungs could occur without any external cause would not absolve the respondent factory from the liability to compensate the dependant of the workman if the haemorrhage of the veins could also be caused by the accidental fall". The application for compensation was allowed in the aforesaid case. 12. In the present case, as has been discussed above, there is a direct evidence of Dr. The application for compensation was allowed in the aforesaid case. 12. In the present case, as has been discussed above, there is a direct evidence of Dr. Gulab Singh, AW 2, who had also examined the deceased and has deposed categorically that TB is an occupational hazard to the driver as it can be suffered by him in the bus if someone in the bus is suffering from TB as generally buses are overcrowded. 13. In view of the above discussion, the present appeal is allowed and the order of the Workmens Compensation Commissioner is set aside. The matter is remanded to the Commissioner under the Workmens Compensation Act at Hisar to assess the compensation to be paid to the appellants in accordance with law within a period of 3 months from the date of receipt of copy of this order.Appeal allowed.