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Manipur High Court · body

2016 DIGILAW 19 (MAN)

National Insurance Co. Ltd. v. Ningshen Romeo

2016-02-26

L.K.MOHAPATRA

body2016
JUDGMENT : This appeal is directed against the award passed by the Commissioner for Employees’ Compensation, Manipur dated 06.02.2013 in Claim Case No.5 of 2012. 2. The brief fact of the case is that the deceased, Alingboy Tangkhul, is the son of the claimant, respondent No.1. The deceased was employed as a workmen by the respondent No.2 in the capacity of Handyman of a Tata Truck bearing Regn. No. NL-07/A-3934 belonging to the respondent No.2. On 4.10.2011, under the instruction of the respondent No.2, the deceased and the driver of the vehicle namely Sagolsem Prem @ Premjit proceeded towards Jiribam side for transportation of some essential goods. After the truck reached Golathol Bazar near Jiri river, the driver stopped the vehicle for taking rest. The deceased along with some others went to take bath in the Jiri river. Unfortunately, the deceased got drowned and his body could not be recovered. The driver of the vehicle lodged a written report before the Officer in-Charge, Jiribam P.S. about the incident and a case was registered. The dead body of the deceased was found on 5.10.11 and Post Mortem was conducted on 7.10.2011 at JNIMS Imphal. 3. It is the case of the claimant, respondent No.1, that the deceased died in course of employment and is entitled to compensation of Rs.5 lakhs as he was getting monthly wage of Rs.3700/- and was only 20 years of age at the time of his death. The appellant, Insurance Company, was also made a party in the Claim Case as the vehicle has been insured with the appellant, Company. 4. Before the Commissioner for Employees’ Compensation, written statements were filed by both the appellant and respondent No.2. The respondent No.2 admitted to be the employer of the deceased but his case was that if any compensation is awarded, the same should be paid by the appellant, the vehicle having been insured with the appellant. 5. The appellant contested the proceeding by filing written statement and specific plea was raised to the effect that death of the deceased was not in course of employment and therefore the Insurance Company is not liable to pay any compensation. 6. On the basis of the pleadings of the parties, the Commissioner framed 5(five) issues and came to the following conclusions- A - The deceased was an employee of the respondent No.2. 6. On the basis of the pleadings of the parties, the Commissioner framed 5(five) issues and came to the following conclusions- A - The deceased was an employee of the respondent No.2. B - The death of the deceased arose out of and in course of employment. C - The employer is liable u/s 3 of the Act to pay compensation. D - The vehicle having been insured with the appellant, the compensation has to be indemnified by the appellant. 7. With the above findings, the Commissioner directed payment of compensation of Rs.4,00,237/- to be paid by the appellant on or before 30.3.2013 failing which the compensation amount would carry interest @ 12% per annum. 8. At the time of admission of the appeal, this Court formulated the following substantial questions of law:- “(a) Whether the Commissioner, Workmen’s was justified in holding that death of Alingboy Tangkhul occurred during the course of employment and arose out of employment? (b) Whether the death of Alingboy Tangkhul had any nexus with the work which the deceased was doing at the time of death and if so whether death occurred on account of work done by the deceased ? (c) In case, if the appeal is dismissed, whether the respondent(employee) is entitled to claim interest on the awarded sum from the ‘date of accident’ in the light of the law laid down by the Supreme Court in Pratap Narayan’s case as against what has been awarded by the Commissioner to the respondent, i.e. interest from the ‘date of award.’” 9. Shri A. Deni Sharma, learned counsel appearing for the appellant, on the basis of the admitted facts, submitted that the Insurance Company is not liable to pay any compensation as death of the deceased did not occur out of and in course of employment. Reliance was placed by the learned counsel on a judgment of the apex Court. The learned counsel for the respondent had relied upon the judgments of 2(two) High Courts in support of his claim that even though the deceased died due to drowning while taking bath in the river, such death has to be in course of employment and accordingly claimant is entitled for compensation. 10. It is admitted in the Claim Petition that on 4.10.2011 the deceased along with the driver of the vehicle proceeded towards Jiribam for transportation of some essential goods. 10. It is admitted in the Claim Petition that on 4.10.2011 the deceased along with the driver of the vehicle proceeded towards Jiribam for transportation of some essential goods. It is also admitted that when the vehicle reached Golathol Bazar near Jiri river, the driver stopped the vehicle for taking rest. During this period the deceased went to Jiri river along with some others to take bath and died due to drowning. Now, question that arises for consideration is as to whether the death of the deceased was in course of employment or not. 11. The learned counsel for the respondent relied upon a judgment of the Kerala High Court in the case of New India Assurance Co. Ltd. vs. Jayalakshmi Latha reported in 2013 (1) T.A.C. 193 (Ker.). In the said reported case the deceased was the driver of the vehicle. The date on which the incident took place, he had parked the vehicle near a ghat on the banks of Pavanna for loading sand. When sand was being loaded on the vehicle, the driver went to take bath in the river and accidentally slipped in the river resulting in his death by drowning. With this factual background, Kerala High Court held that the incident took place in course of employment. The other decision relied upon the learned counsel for the respondent is reported in 2006 (2) T.A.C.811 (Kant.) Premila & Ors vs. Shaliwan and another. In the said reported case, the deceased was also a driver. He had stopped the vehicle temporarily for a short period to attend call of nature and while returning to the vehicle, he was hit by a lorry and died. With this factual background, the Karnatak High Court held that incident of death occurred in course of employment. 12. Though such views were taken by the Kerala and Karnataka High Courts respectively, reference may be made to a decision of the Apex Court in the case of Malikarjuna G. Hiremath vs. Branch Manager, Oriental Insurnace Co. Ltd and Anr. disposed of on 12.2.2009 vide Civil Appeal No. 956 of 2009 (arising out of SLP (C) No. 25750 of 2005). In the said reported case, the deceased was working as driver in a truck. He left Siraguppa to go to Gurugunta Amreshwara Temple along with certain passengers as per direction of the owner of the vehicle. Ltd and Anr. disposed of on 12.2.2009 vide Civil Appeal No. 956 of 2009 (arising out of SLP (C) No. 25750 of 2005). In the said reported case, the deceased was working as driver in a truck. He left Siraguppa to go to Gurugunta Amreshwara Temple along with certain passengers as per direction of the owner of the vehicle. When the vehicle reached Gurugunta, the deceased went to the pond and while taking bath at a pit, he slipped and fell down. Consequently he got drowned in water and died. It was contended before the Court that death of the deceased had occurred during course of and out of employment. Referring to Section 3(1) of the Workmen Compensation Act, 1923 the Court held that under the said provision it has to be established that there were some casual connections between the death of the workman and his employment. If the workman dies a natural death because 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 not only due 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. The Court further held that the expression ‘accident’ means an untoward mishap which is not expected or designed. ‘Injury’ means physiological injury. Relying on some English decisions, the Court held that on facts of the said case that it is not sufficient to hold that the death occurred in course of employment. The Court further held that no liability could be fixed either on the insured or the insurer. Taking bath was a voluntary action on the part of the deceased unconnected with his employment when the vehicle was static and the driver was taking rest and therefore the claimant, respondent No.1, is not entitled to compensation to be indemnified by the appellant. 13. In view of the above finding, the appeal is allowed and the impugned award passed by the Commissioner is set aside.