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Himachal Pradesh High Court · body

2009 DIGILAW 770 (HP)

Ram Dev Puri v. Trishla Devi

2009-09-03

DEEPAK GUPTA

body2009
JUDGMENT Deepak Gupta, J. 1. This appeal under Section 30 of the Workmen's Compensation Act, (here-in-after referred to as the Act) is directed against the award of the Commissioner Workmen's Compensation District Una dated 14.12.2005, whereby he has allowed the application for grant of compensation filed by the claimants and held the employer (appellant) liable to pay compensation of Rs. 2,03,092/- alongwith interest at the rate of 12% per annum from the date of death till deposit of the amount. The employer has been given the right to recover the same from the Insurance Company. 2. Briefly stated, the facts of the case are that the claimants are widow and minor children of Sukh Chain Singh. They filed a claim petition under Section 4 of the Act in which they averred that the deceased Sukh Chain Singh was employed as driver with respondent Ramdev Puri. According to the claimants, on 22.11.1999 Sukh Chain Singh was deputed with truck bearing registration No. HP-20-9082 loaded with coal. Manjit Singh was the conductor of the truck and in the course of employment he died at Sarsawa/Jagadhri on 22.11.1999. It was further alleged that the owner after reaching the spot did not permit post-mortem to be performed. The owner filed a written statement denying that Sukh Chain Singh was employed as a Driver. It was pleaded that Sukh Chain Singh had died a natural death at his village and the death did not occur during the course of employment. The Insurance Company denied the case in toto. One of the issues framed was whether the Commissioner, Workmen's Compensation has no jurisdiction to decide the petition. The claimant appeared as PW-1 and stated that her husband died on 22.11.1999 at the U.P. border near Yamuna Nagar. She has not stated a word about the cause of the death. 3. Manjit Singh was the conductor of the truck. According to him, deceased Sukh Chain Singh was the driver in the truck. They loaded coal at Jallandhar. Whey they were near the U.P. border at Sarsawa they stopped to have food and rest. They spent the night there. At 9.00 a.m. in the morning Sukh Chain went to ease himself. He suffered from a stomach ache. He came back and lay down in the truck. Manjit Singh then went to get a doctor. Whey they were near the U.P. border at Sarsawa they stopped to have food and rest. They spent the night there. At 9.00 a.m. in the morning Sukh Chain went to ease himself. He suffered from a stomach ache. He came back and lay down in the truck. Manjit Singh then went to get a doctor. He could not find any doctor and when he came back he found that Sukh Chain had expired. He then rang up Shyam Lal Puri, who is the brother of the owner of the vehicle. Shyam Lal Puri alongwith some other persons came to the spot and the body was taken to the village of deceased Sukh Chain Singh. 4. DW-3 is one Kewal Singh, who states that on 22.11.1999 he was taken by Syam Lal Puri and some other persons to Sarsawa and from where they returned with the body of Sukh Chain. Karnail Singh, DW-4 is the brother of the deceased. He states that on 22.11.1999 he received a telephone call that his brother had expired in the vehicle. The witness went to Sarsawa and Manjit Singh conductor told him that in the morning when Sukh Chain suffered a stomach-ache and died. 5. RW-1 Surinder Kumar is the Panchayat Secretary, who has proved that as per Pariwar Register Sukh Chain had died at village Panjawar itself due to heart-attack. RW-2 is the owner who states that deceased was not employed with him permanently but he used to engage his services of and on. He produced the policy of insurance. He denied that the accused have been engaged or deployed with the truck at the relevant time. The learned Commissioner accepted the version of the claimants and came to the conclusion that the deceased had died while on duty with the truck and awarded compensation. This award is under challenge in this appeal. 6. I have heard Shri Baldev Singh, learned Counsel for the appellant, Shri R.K. Gautam, learned Senior counsel for the claimants No. 1 to 3 and Shri G.D. Sharma, counsel for the respondent No. 4. 7. This award is under challenge in this appeal. 6. I have heard Shri Baldev Singh, learned Counsel for the appellant, Shri R.K. Gautam, learned Senior counsel for the claimants No. 1 to 3 and Shri G.D. Sharma, counsel for the respondent No. 4. 7. At the outset, it may be noted that the main ground of challenge raised by Shri Baldev Singh, Advocate, is that even if the version of the claimants be accepted at its face value, it only shows that the deceased died a natural death during the course of employment and there is nothing to show that the death has any causal connection with the employment of the deceased. 8. Shri R.K. Gautam, learned senior counsel for the claimants has raised a preliminary objection that this was not a defence taken by the owner before the trial Court and further this is not even one of the grounds of appeal or one of the substantial questions of law raised in this appeal. There is no manner of doubt that the defence of the owner was that the accused was not his employee and he suffered a natural death at his village. There is no specific defence that the death of the employee/workman had no causal connection with his employment. However, when a person alleges that the employee has died a natural death and challenges the jurisdiction of the Commissioner Workmen's Compensation to decide the claim he is impliedly taking the plea that the death has no connection with the employment. 8-A. This appeal was admitted on the following questions of law: (1) Whether the appellant can be held to be employee of appellant in absence of any proof of employment and can respondent claim compensation without proving death in the course of employment? (2) Whether the appellant can be held liable to pay compensation in view of the fact that insurance policy was proved on record and was held to be valid by learned Commissioner? (3) Whether the interest can be granted from the date of death in view of settled law that the interest has to be granted from date of filing of petition? 9. (3) Whether the interest can be granted from the date of death in view of settled law that the interest has to be granted from date of filing of petition? 9. In addition to the above after hearing the arguments, I feel that the following question of law also arises for consideration: Whether the death of the employee had no causal connection with his employment and as such the Commissioner Workmen's Compensation had no jurisdiction to decide the matter. 9-A. Section 3(1) of the Act, which is relevant for the purpose of the case, 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 willful 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 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. 10. The Apex Court in Jyothi Ademma v. Plant Engineer, Nellore and Anr. (2006) 5 SCC 513, considered the import of this Section and held as follows: 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. 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 due not only to the disease but also the disease coupled with the employment, then it can be said that the 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 & Co. Ltd. (1903) AC 443, 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) A.C. 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) 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. 11. The Apex Court again considered the language of Section 3(1) in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali, (2007) 11 SC 668. This is a very detailed judgment in which the entire law on the subject has been considered in detail. The relevant portion of the judgment reads as follows: 15. The said Act was enacted to provide for payment by certain classes of employers to workmen for compensation against injury by accident. The term 'accidental injury' has not been defined under the Act. The relevant portion of the judgment reads as follows: 15. The said Act was enacted to provide for payment by certain classes of employers to workmen for compensation against injury by accident. The term 'accidental injury' has not been defined under the Act. The liability of the employer for payment of compensation, however, would arise if a personal injury is caused to a workman by accident arising out of and in the course of his employment. What is necessary for attracting the charging provision contained in Section 3 of the Act is that (i) an injury must be caused to a workman; (ii) such injury must have been caused by an accident; and (iii) it arose out of or in the course of his employment. 16. Before we analyze the provisions of the Act, we may notice that in the Complaint Petition, there was no allegation that (i) the deceased met with his death by reason of any strain of work; (ii) Appellant had no personal knowledge as regards quantum of or nature of work required to be performed by the deceased; and (iii) as to how severe strain during his service was caused. 17. The deceased had admittedly suffered a massive heart attack. Nothing has been brought on record to show that the heart attack was caused while doing any job. Even according to the employer, he at the relevant time was merely getting down from the vehicle. 12. The Apex Court after considering a number of earlier judgments further went on to hold as follows: 22. There are a large number of English and American decisions, some of which have been taken note of in ESI Corporation in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are: (1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. 23. (3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. 23. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed. 24. There is a crucial link between the causal connections of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction. 25. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. 26. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are: 1. stress and strain arising during the course of employment. 2. nature of employment. 3. injury aggravated due to stress and strain. 27. The deceased was traveling in a vehicle. The same by itself can not give rise to an inference that the job was strenuous. 28. Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf. 29. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefore can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefore can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor. 13. The Apex Court further went on to hold as follows: 38. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well-settled that for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question. 39. Section 30 of the said Act postulates an appeal directly to High Court if a substantial question of law is involved in the appeal. 40. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain. It was merely stated that he was working as a Khalasi in a truck which was going to Tavarewadi Village from Kolhapur to get the milk. The autopsy was conducted at Chandgad District Hospital. The driver Prashant Chandrakant Shreshti admittedly brought him to hospital. He was his brother. The post-mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day. From the post-mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. He was his brother. The post-mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day. From the post-mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a causal connection between accident and serious injury so as to fulfill the requirements of the terms "out of employment". Indisputably, there has to be an proximate nexus between cause of death and employment. A stray statement made by the Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination. 41. This vital aspect of the matter was required to be considered by the High Court so as to arrive at a finding as to how the said accident has arisen or not. 42. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record. 14. A perusal of the aforesaid judgment clearly shows that a jurisdictional question is involved in such like cases and this jurisdictional question is a substantial question of law. 15. Similar view has been taken Malikarjuna G. Hiremath v. The Branch Manager, The Oriental Insurance Company Ltd. and Anr. JT 2009 (2) SC 396. In that case, the driver of a truck died in a drowning accident. The Apex Court held that it had not been proved that drowning of the workman had any causal connection with his work as driver. Following the similar principle as laid down in the earlier judgments, the Apex Court rejected the claim of the workman. 16. In that case, the driver of a truck died in a drowning accident. The Apex Court held that it had not been proved that drowning of the workman had any causal connection with his work as driver. Following the similar principle as laid down in the earlier judgments, the Apex Court rejected the claim of the workman. 16. In the present case, even if the case of the claimants as set up by them is accepted as absolutely true then also all that is proved is that the deceased workman was employed as a driver on the truck. He reached the U.P. border where he along with conductor Manjit Singh ate food and spent the night there. In the morning, when the deceased returned after answering the call of nature, he complained of stomach ache. The conductor went to look for a doctor but could not find any and by the time he returned Sukhchain Singh had died. There is neither any averments in the petition nor any evidence to show that the death of the deceased had any connection whatsoever with his employer. He may have died during the course of employment but there is nothing to show that accident arose out of the employment or had any causal connection with the employment. 17. Applying the principles laid down above, it is apparent that the claimants have not led any evidence to show that the death was caused by the stress and strain arising during the course of employment or had any connection with the employment. The Apex Court in no uncertain terms has held that the onus is upon the claimants to show that it was the work and resulting strain which contributed to or aggravated the injury. This having not been done, the Commissioner Workmen's Compensation lacked jurisdiction to pass an award. Therefore, it is held that the claim petition under the Workmen's Compensation Act was totally misconceived and the Tribunal gravely erred in deciding the claim petition in favour of the claimants. 18. The appeal filed by the owner is accordingly allowed. The award of the Commissioner is set-aside and the application filed by the claimants is rejected. In the facts and circumstances of the case, there shall be no order as to costs. 18. The appeal filed by the owner is accordingly allowed. The award of the Commissioner is set-aside and the application filed by the claimants is rejected. In the facts and circumstances of the case, there shall be no order as to costs. It is further ordered that in case any amount has been released to the claimants the same shall not be refunded to the owner.