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2013 DIGILAW 515 (JK)

National Insurance Co. Ltd. v. Rano Devi

2013-09-06

BANSI LAL BHAT

body2013
1. This appeal under section 30 of Workmen's Compensation Act, 1923 is directed against the award dated 30.3.2010 passed by the Commissioner under Workmen's Compensation Act, Jammu in File No. Death-74/WC Act/04 titled Rano Devi and others v. Rajinder Nath and another in terms whereof the appellant has been directed to pay compensation to the tune of Rs. 3,06,180/- in favour of the respondents on account of death of Girdhari Lal alias Kunna due to accident which arose out of and in course of his employment with Respondent-5. 2. The Commissioner under Workmen's Compensation Act (hereinafter referred to as the Commissioner ), found that the deceased Girdhari Lal was employed with respondent -5 , Rajinder Nath as driver of his bus bearing registration no. JKS 9580 of Jammu- Poonch route which had gone from Poonch to Sawjain with passengers on 14.10.2003 and stayed at Sawjian for the night and the deceased, who was sleeping on the roof top of the bus, fell down while coming down from the roof top at night and sustained fatal injuries and died in the course of his employment with respondent-5. 3. The findings recorded by the Commissioner have been assailed by the appellant who is insurer and has been saddled with the liability to satisfy the award in such capacity. It is submitted on behalf of the appellant that since the Investigating Officer who conducted investigation in FIR relating to occurrence has not been examined and respondent -5 has not spelt out the cause of death of deceased, the death of deceased cannot be said to have been caused during the course of his employment with respondent-5. Thus, the findings are sought to be assailed on the ground that the same are not based on record. Per contra respondents 1 to 4 have argued that since no substantial question of law is involved and the findings are based on evidence of most natural witness- Baldev Singh, conductor of the bus, the appeal did not lie. 4. Heard the rival sides and perused the record. 5. Adverting to the findings on issues be it seen that the testimony of conductor, Baldev Singhy brought on record by respondents 1 to 4, convincingly establishes the factum of deceased having met his fatal end by having a fall from the roof top of the bus where he was sleeping during night intervening between 14.10.2003 and 15.10.2003. 5. Adverting to the findings on issues be it seen that the testimony of conductor, Baldev Singhy brought on record by respondents 1 to 4, convincingly establishes the factum of deceased having met his fatal end by having a fall from the roof top of the bus where he was sleeping during night intervening between 14.10.2003 and 15.10.2003. Baldev Singh, being employed with respondent-5 as conductor of the bus in question, was staying at Sowjian as the bus halted there for night to lift the passengers to Poonch in the morning of 15.10.2003. In absence of a version different from the one emanating from the mouth of this witness, whose presence on spot was natural and probable, and in absence of a parallel version regarding cause of death of deceased, the version coming from the said witness has to be attached due credit. It is not disputed that the deceased was employed by respondent-5 as driver of the said bus while witness Baldev Singh worked under him as conductor of the bus. In the face of testimony of Baldev Singh and on admission of respondent -5 that he had employed deceased Girdhari Lal as driver of bus 3-4 months before the fatal accident, and that he had got the information that the deceased died because of fall from the roof of stationary bus in the mid-night, finding regarding cause of death of deceased during course of his employment with respondent-5, is perfectly justified. On reappraisal of evidence, I find no reason to take a view different from the one taken by the Commissioner. 6. In so far as the issue of maintainability of instant appeal is concerned, it is argued on behalf of respondents that since no substantial question of law is involved, instant appeal does not lie. Per contra, learned counsel for appellant submits that since the Commissioner has misdirected himself and committed procedural irregularities in arriving at the findings, questions raised are to be treated as substantial questions of law and the appeal is maintainable. 7. It is well settled that an appeal under section 30 of the Workmen's Compensation Act lies to High Court only on substantial question of law. The High Court, sitting in appeal under section 30 of Workmen's Compensation Act, does not function as a regular court of appeal with liberty to reappreciate the evidence. 8. 7. It is well settled that an appeal under section 30 of the Workmen's Compensation Act lies to High Court only on substantial question of law. The High Court, sitting in appeal under section 30 of Workmen's Compensation Act, does not function as a regular court of appeal with liberty to reappreciate the evidence. 8. In 2007 ACJ 1 , the Hon'ble Apex Court held that 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. The Hon'ble Court further held that where the finding of fact was arrived at without there being any evidence, it involves a substantial question of law and the appeal is maintainable. 9. In 2010 ACJ 948 , this Court held that where the record reveals that an opportunity had not been allowed by the Tribunal to Insurance Company to produce evidence and it was deprived of its right to contest claim, the award was not sustainable. 10. In 2009 ACJ 721 , the Hon'ble Apex Court held that the requirement of law was to establish that there was some casual connection between the death of workman and his employment. If the death is natural, no liability would be fixed upon the employer. But if the employment is contributory one or accelerated the death, then it can be said that the death arose out of the employment and the employer would be liable. 11. In 2011 ACJ 532 , the High Court of Madras held that if the finding of fact is based on no evidence or based on inadmissible evidence alone or on the basis of evidence on which no reasonable person would have arrived at just conclusion, then such finding shall become substantial question of law. 12. The case law on the subject makes it amply clear that if the finding of fact arrived at by Commissioner is based on no evidence, wrong appreciation of evidence or inadmissible evidence, such finding of fact becomes a substantial question of law and appeal in terms of provisions of section 30 of Workmen's Compensation Act is maintainable. 12. The case law on the subject makes it amply clear that if the finding of fact arrived at by Commissioner is based on no evidence, wrong appreciation of evidence or inadmissible evidence, such finding of fact becomes a substantial question of law and appeal in terms of provisions of section 30 of Workmen's Compensation Act is maintainable. It also emerges from a catena of authorities that death of an employee giving rise to claim for compensation must bear some nexus with the employment for holding that the death was caused by an accident during the course of employment. In short, it means that the employment must have contributed to death of an employee. Applying these dictums of law to the facts of the present case, it is manifestly clear that the deceased in the instant case was employed as driver and he had taken the bus from Poonch to Sawjain where the bus was to halt for night and return to Poonch with passengers in the morning. The night halt at Sawjain necessitated taking care of the vehicle, leaving no option for the driver and the conductor to sleep on the roof top of the bus- a common practice with the drivers and the conductors of public transport observing night halt in the countryside. As pointed out elsewhere in the judgment, the deceased fell down from the roof top of the bus while coming down, sustained fatal injuries and died. It was a plain accident in which death of deceased ensued during course of his employment. Best witness to establish the factum of accident resulting in sustaining of fatal injuries to the deceased, was the conductor of the bus, Baldev Singh who has appeared before the Commissioner to depose in regard to the accident resulting in death of the deceased driver Girdhari Lal. Postmortem report has also been brought on record to establish the cause of death. It is established by his testimony that the deceased fell down, vomitted blood and died on spot. He was 50 years old at the time of his death. The Commissioner found that the deceased was holding a valid and effective driving licence which had been duly renewed. It is established by his testimony that the deceased fell down, vomitted blood and died on spot. He was 50 years old at the time of his death. The Commissioner found that the deceased was holding a valid and effective driving licence which had been duly renewed. Even the owner of the bus Rajinder Nath has admitted in his objections that the deceased Girdhari Lal was employed by him as driver and he was driving the bus in question on the date of his death. It is established that the bus in question was insured with the appellant. This fact is also admitted by the appellant. In view of these proved facts and circumstances, it cannot be held that it was a case of no evidence, inadmissible evidence or wrong appreciation of evidence. 13. Viewed thus, it is held that no substantial question of law as contemplated under section 30 of Workmen's Compensation Act is involved and the instant appeal is not maintainable. The appeal is accordingly dismissed alongwith connected CMA.