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Gujarat High Court · body

2010 DIGILAW 260 (GUJ)

State Of Gujarat v. Fattu Fakru Bhuriya

2010-05-13

K.M.Thaker

body2010
JUDGMENT 1. The captioned two Appeals arise from the award dated 15/4/1999 passed by the learned Commissioner of Workmen's Compensation under the provisions of Workmen's Compensation Act, 1923 [hereinafter referred to as 'the Act'] whereby the learned Commissioner has partly allowed the workman Compensation (Fatal) Case No.12 of 1992 by awarding compensation to the tune of Rs.63,537.00 in favour of the claimants with simple interest at 12% from the date of accident. The learned Commissioner has also awarded penalty at the rate of 20% which is quantified at Rs.12,707.40. 1.1 The appellants (in First Appeal No.6010 of 1999- the State Government and in First Appeal No.4512 of 1999 - the insurance company) are aggrieved by the said award whereby the two appellants have been directed to discharge the award jointly and severally. Aggrieved by the said directions and the impugned award, the appellants are before this Court. 2. One Shri Fakru Mangla Bhuria, who was, at the relevant time, in employment with the Road and Building Department of appellant-State Government died on account of the accident which occurred on 24/3/1991. The said accident and the death of the above referred Mr. Fakru Mangle Bhuria [hereinafter referred to as 'the deceased'] gave rise to the Workmen Compensation (Fatal) Case No.12 of 1992 in which the impugned award has been passed. (1) It emerges from the record that the deceased was working as helper with the appellant - State Government in its 'hot mix' plant under the R and B Department. On 24/3/1991, the deceased traveled, along with the other employees of the department, in a vehicle of the State Government's ownership. It was claimed that one of the vehicles had to be taken to Vadodara for repairs and services. After delivering the vehicle for repairs and services at Vadodara, the deceased, along with the other employees was returning to Navsari in the dumper bearing registration No.GPT-7253 which met with an accident at about 2.00 a.m. in the early morning on 25th March, 1991. The deceased suffered serious injuries on account of the said accident and was rushed to the hospital at Vadodara where he ultimately succumbed to the injuries and died. The deceased suffered serious injuries on account of the said accident and was rushed to the hospital at Vadodara where he ultimately succumbed to the injuries and died. The heirs and legal representatives of the deceased i.e. the widow of the deceased, the parents [father and mother] of the deceased and his two minor daughters filed the Workmen Compensation (Fatal) Case No.12 of 1992 under the provisions of the Act claiming Rs.1,05,465.00 towards compensation. After taking into account the documentary and oral evidence, obtaining on record and having regard to the submissions of the contesting parties, the learned Commissioner has awarded Rs.63,537/- towards compensation and additional compensation at the rate of 20% by way of penalty (which is quantified at Rs.12,707.40). The learned Commissioner has directed that the penalty shall be paid by appellant State Government. The learned Commissioner has also awarded interest at the rate of 12% on the compensation amount. Aggrieved by the said award, the R and B Department, State Government and the Insurance Company are before this Court. Mrs. V.S. Pathak / Ms. Jhaveri, learned AGP have appeared for the appellant State Government and Mr. Vibhuti Nanavati, learned advocate, has appeared for the appellant insurance company. Mr. Bharat Jani, learned advocate, has appeared for the opponents/claimants. Heard the learned counsel appearing for the respective parties. 3. The principal contention raised by the appellant State Government is that on 24th March, 1991, the deceased was not on duty and neither he was instructed by any competent and authorized officer of the appellant (R and B Department, State Government) to report for duty and accompany the other employees, who were going to deliver the vehicle for repairs and services at Vadodara. It is claimed by the appellant that the deceased unauthorizedly traveled in the vehicle for his personal work or probably to share the trip with his colleagues, but in any case, he was not on official duty and/or was not duly instructed by any authorized officer to accompany other employees in his capacity as helper so as to deliver the vehicle and get it repaired at Vadodara. On such premise, the appellant State Government has claimed that the accident cannot be said to have arisen out of and in the course of employment and that therefore, the obligation to pay compensation cannot be fastened on the appellant State Government. On such premise, the appellant State Government has claimed that the accident cannot be said to have arisen out of and in the course of employment and that therefore, the obligation to pay compensation cannot be fastened on the appellant State Government. So as to substantiate the said contention, the appellant State Government examined witnesses, who deposed before the learned Commissioner that the deceased was not on duty on 24th March, 1991 and was not supposed to travel with the other employees and/or accompany them as helper to deliver the vehicle for repairs and services at Vadodara. The learned AGP has submitted that enough evidence was available to establish that the deceased was not on duty on 24/3/1991 and was not supposed and/or instructed to accompany other employees and travel with the vehicle and that when the deceased was not instructed to go with other employees, he could not have been deemed to have been on duty and the accident should not have been considered as accident in the course of employment. The appellant insurance company has also adopted the said defence of the appellant State Government and contended that the death should not have been treated as a death on account of accident arisen out of and in the course of employment. The appellant insurance company has without prejudice to the said contention, also contended that even if the accident is to be considered as an accident out of and in the course of employment, the quantification of compensation is not justified and in any case, the direction imposing the obligation on the insurance company is unwarranted and unjustified. The appellant insurance company has also challenged the direction awarding interest at the rate of 12% and contended that the said amendment came into operation w.e.f. 15th September, 1995 and that therefore, it could not have been applied retrospectively i.e. to an accident which arose in March-1991 and that therefore, the interest could not have been awarded at the rate of 12%, but should have been restricted at 6% p.a. The said contention has been raised by the insurance company without prejudice to the principal objection against the direction awarding compensation. 4. Few undisputed factual details:- Before proceeding further, certain factual details and aspects, which are not in dispute, may be noted. 4. Few undisputed factual details:- Before proceeding further, certain factual details and aspects, which are not in dispute, may be noted. The date and time of accident (i.e. late night of 24/3/1991 or early morning i.e. 2.00 a.m. on 25/3/1991) are not in dispute. On the date of the accident, the deceased was 28 year's old and that his salary was Rs.750.00 p.m. is also not in dispute. The factum of the accident and/or the cause of death (on account of accident) is also not in dispute. The fact that the deceased was aboard the vehicle bearing registration No.GPT-7253 and/or that the said vehicle met with an accident on National Highway No.8 near Vadodara, and the deceased suffered injuries on account of the said accident and thereafter succumbed to the injuries and died in the hospital at Vadodara are also not in dispute. In light of such undisputed facts, the only question, which was required to be addressed by the learned Commissioner, in light of the evidence obtaining on record, was that whether the accident can be said to have arisen out of and in course of employment of the deceased and for that purpose, it was necessary to ascertain as to whether the deceased was supposed to be and was actually on duty on 24th March, 1991 or not and whether any competent officer had duly instructed and authorized him to accompany the vehicle, which was to be delivered for repairs and service. Only if the answers to the said issues turned out to be in affirmative, then only, the award for compensation could have been made. On examination of the award, it comes out that the learned Commissioner has concluded that the appellant's failed to prove that the deceased was not 'on duty'. On such conclusion, the learned Commissioner has passed the award in favour of the claimants. Per contra, learned counsel for the claimants has heavily relied on the observations and conclusions by the learned Commissioner, holding inter alia, that the appellants could not establish that the deceased was off-duty and that therefore, the learned Commissioner is right and justified in awarding compensation in favour of the claimants. Learned counsel for the claimants has relied on the deposition of the workman, who took the vehicle for repairs and services and with whom the deceased traveled in the vehicle on the date of the accident. Learned counsel for the claimants has relied on the deposition of the workman, who took the vehicle for repairs and services and with whom the deceased traveled in the vehicle on the date of the accident. The claimant's advocate has submitted that the witnesses have deposed that the deceased was aboard the vehicle with them and that officer Mr. Patel had seen the deceased get on the vehicle, but had not stopped him from boarding the vehicle, on the basis of such evidence, the claimant's advocate has attempted to contend that the deceased, therefore, should be deemed to be on duty and the accident has been rightly considered as accident arisen out of and in the course of employment. 5. In backdrop of such rival contentions, the question, which arise is whether the learned Commissioner is justified in holding that the deceased can be said to be on duty and the accident can be said to have arisen during the course of employment. 6. Now, on this count, it is apposite to note that the vehicle which required repairs and services was driven to the garage at Vadodara on 24th March, 1991 which was weekly 'off-duty day' for the deceased and he was not supposed to or required to be on duty on 24th March, 1991. The fact that 24th March, 1991 was Sunday and incidentally it was weekly off day for the appellant, is not in dispute. It emerges from the record that the appellate State Government had produced on record of the case, the relevant muster roll from which it emerges that the name of the deceased did not figure along with the names of the employees, who were on duty or were called on duty on 24th March, 1991. Unfortunately, the learned Commissioner has brushed aside or diluted the said vital evidence with a remark that since the muster roll did not bear the signature of any authorized/competent officer, the entries in the muster roll cannot be taken into account. In view of the controversy and more particularly when the authenticity of the muster roll and/or the entries therein were not objected to by the claimants, the learned Commissioner ought not to have so casually discounted the fact that the name of the deceased did not appear in the list of employees present on 24th March, 1991. 7. In view of the controversy and more particularly when the authenticity of the muster roll and/or the entries therein were not objected to by the claimants, the learned Commissioner ought not to have so casually discounted the fact that the name of the deceased did not appear in the list of employees present on 24th March, 1991. 7. Furthermore, it is the fact, relevant to the point in dispute, that the deceased was a workman engaged in the civil works section of R and P Department of the appellant and was not a workman in the workshop and/or logistic section and that therefore, even otherwise, in ordinary course of activities, the deceased would not be required to travel with the vehicle in question for its delivery to the workshop in Vadodara. The said factual aspect should not have been overlooked or discounted casually. 8. The witness Mr. J.M. Patel has stated in his evidence that the deceased was working in a different department and was not instructed by any competent officer to accompany the driver and the vehicle and that therefore, he could not have been considered 'on official duty' on 24th March, 1991 which was weekly off day for the deceased. It should be noted in absence of any positive evidence to show that the deceased was officially instructed to report for duty and that his presence was marked, the assumption is not justified and the evidence of Mr. Patel should not have been discounted. It is undisputed position that the claimants or the other witnesses did not produce on record any instruction/order asking the deceased to report for duty on 24th March, 1991. In fact, one of the witnesses, a workman, has in his cross examination admitted that it was true that the deceased had boarded the vehicle on his own and without any request or invitation by anyone. The witness (Mr. A.B.Kalgode-Exh.38) has also stated in his evidence that the deceased was once asked to get down but he did not pay heed and thereafter no one raised any objection. Merely on the basis of the statement in his deposition that at the time when they started, Mr. J.M. Patel was present, the learned Commissioner has inferred that the deceased can be said to be on duty because no objection was raised by Mr. Patel with regard to the deceased being aboard the vehicle. Merely on the basis of the statement in his deposition that at the time when they started, Mr. J.M. Patel was present, the learned Commissioner has inferred that the deceased can be said to be on duty because no objection was raised by Mr. Patel with regard to the deceased being aboard the vehicle. Such an inference is unwarranted, more so when the deceased was not working in the vehicles section or in the logistic section or the workshop section, but was working in civil works section and it was a day of his weekly off. The learned Commissioner has observed that since nobody stopped the deceased from boarding the vehicle and accompanying the other employees and since any disciplinary action against the employees, who allowed the deceased to be on the vehicle, were not taken, it should be assumed that the deceased was officially on duty on 24th March, 1991. The said reasoning and inference are, in face of other evidence on record and in light of the facts of the case, not justified and tenable. Except the said inference drawn from the deposition of witness Mr. Kalgode, there is no evidence on record to establish that the deceased was officially instructed by any competent and authorized officer to be on duty on 24th March, 1991 i.e. on the day of his weekly off and to accompany other employees to deliver the vehicle for repairs and services at workshop in Vadodara. When the deceased on his own and without official instruction by the competent officer boarded the vehicle and traveled along with other employees (who were on duty, and discharging their function under the instructions) and that too on a day of weekly off, it would be far fetched to hold that the deceased was on duty and/or that the accident occurred out of and in the course of employment. 9. The learned Commissioner is not justified in discarding the muster roll by causal remark that it did not bear signature of any officer. The learned Commissioner is also not justified in discounting the evidence of Mr. J.M. Patel, the officer, who clearly stated in his evidence that deceased was not instructed by any competent authority to report for work on 24th March, 1991 and that the deceased was working in a different section viz. The learned Commissioner is also not justified in discounting the evidence of Mr. J.M. Patel, the officer, who clearly stated in his evidence that deceased was not instructed by any competent authority to report for work on 24th March, 1991 and that the deceased was working in a different section viz. civil works section and was not supposed to be accompanying the vehicle or other employees. In face of such evidence by Mr. J.M. Patel, there was no warrant to draw any inference from the deposition of Mr. Kalgode. 10. In this context, reference may be made to deposition of Mr. K.S. Parmar (Exh.40) wherein Mr. Parmar also stated, in his cross examination, that the deceased was working in civil works department. The learned Commissioner is also not justified in discarding the evidence of Mr. Kalgode (Exh.38) and that too while drawing inference therefrom by observing that Mr. Kalgode might have given such unclear evidence under influence or pressure of his superiors. On one hand, the learned Commissioner has drawn inference from the deposition of Mr. Kalgode whereas in the second berth, the learned Commissioner has observed that his evidence cannot be given any weightage or recognition as it might have been given under influence or pressure. 11. The learned Commissioner has also ignored the evidence that in the vehicle which driven to the workshop / garage at Vadodara, there were two drivers (namely Mr. Anil Namdev and Mr. K.S. Parmar) and two cleaners (namely Mr. A.B. Kalgode and Mr. D.C. Chauhan) which established that even otherwise, and in ordinary course, there was no room or need for any other employee. The learned Commissioner has also ignored that no written order or any written instruction was produced on record wherefrom it can be concluded that the deceased was asked to accompany the aforesaid drivers and cleaners. 12. In this view of the matter, the inference drawn by the learned Commissioner cannot be sustained. The learned Commissioner is not right or justified in assuming that the deceased was 'officially on duty' on 24th March, 1991 and/or in concluding that the appellants failed to establish that the deceased was not on duty. Thus, the said assumption and conclusion based on such inference deserves to be set aside and is, accordingly, set aside. The learned Commissioner is not right or justified in assuming that the deceased was 'officially on duty' on 24th March, 1991 and/or in concluding that the appellants failed to establish that the deceased was not on duty. Thus, the said assumption and conclusion based on such inference deserves to be set aside and is, accordingly, set aside. Now, when it emerges that the claimants have not established that the deceased was officially on duty on 24th March, 1991 and that the learned Commissioner was in error in holding that the deceased can be said to be on duty, as a corollary, it follows that the accident cannot be said to be an accident arisen out of and in the course of employment. Resultantly, the learned Commissioner could not have passed any award granting compensation under the provisions of the Act. The liability of employer and of the insurance company (in the event the employer is insured) to pay compensation under the provisions of the Act, arises only if the bodily injury resulting into death or permanent / partial disablement arises on account of accident out of and in the course of employment, and not otherwise. Thus, even if the factum of injury and resultant death is not in dispute and even if it is not in dispute that the injury and death arose on account of the accident, the liability to pay compensation will not arise until and unless it is established that the accident in question arose out of and in the course of employment. 13. In present case, as noticed above, the accident arose on the day of the weekly off for the deceased and that therefore, unless it can be established that the deceased was on official duty and was duly instructed by any superior to report for duty even on weekly off day, it would not be correct or justified to hold that the accident arose out of and in the course of employment. When such conclusion is not possible or permissible in view of the evidence on record or in view of absence of necessary evidence, the direction awarding compensation would also not be justified and cannot be sustained. Hence, the said conclusion also deserves to be set aside and is, accordingly, set aside. 14. Consequently, the Appeal by the State Government succeeds and deserves to be allowed. Hence, the said conclusion also deserves to be set aside and is, accordingly, set aside. 14. Consequently, the Appeal by the State Government succeeds and deserves to be allowed. The Appeal is accordingly allowed and the impugned award is set aside. So far as the Appeal being First Appeal No. 4512 of 1999 by the insurance company is concerned, any other or separate order is not necessary in view of the fact that in the First Appeal preferred by the State Government the impugned award has been set aside. Thus, the First Appeal being First Appeal No. 4512 of 1999 is disposed of in view of and in terms of the judgment and order in First Appeal No. 6010 of 1999 by the State Government.