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2018 DIGILAW 1852 (MAD)

National Insurance Co. Ltd. v. Kulanthai Ammal

2018-06-12

A.M.BASHEER AHAMED

body2018
JUDGMENT : Prayer : Civil Miscellaneous Appeal is filed under Section 30 of Workmen Compensation Act, against the Award, dated 30.10.2010, made in W.C.No.2 of 2007, on the file of the Commissioner of Workmen Compensation (Deputy Commissioner of Labour), Dindigul, and allow this Civil Miscellaneous Appeal. 1. This Civil Miscellaneous Appeal has been filed against the award dated 30.10.2010 passed in W.C.No.2 of 2007, by the Commissioner of Workmen Compensation (Deputy Commissioner of Labour), Dindigul, and allow this Civil Miscellaneous Appeal. 2. The appellant herein has challenged the order passed in W.C.No.2 of 2017 on 30.10.2010, awarding a sum of Rs.2,34,209/- with interest at the rate of 12% per annum, in a claim petition filed by R1 to R6 herein/claimants and also L.Rs. of the deceased one Palaniappan. Appellant herein is the insurer of the vehicle bearing Registration No.TN-10-C-9394, owned by the 7th respondent herein. 3. The claim petition was filed before the Commissioner of Workmen Compensation (Deputy Commissioner of Labour), Dindigul, seeking a sum of Rs.5,00,000/-, as compensation, for the death of N.Palaniappan, working as driver in the above said borewell lorry under the employment of the 7th respondent herein and died during the course of employment. The deceased was employed as permanent driver under the 7th respondent. Deceased was sent to Rathalam in Madhyapradesh from Namakkal, by his employer, for doing the contract work of drilling borewell, through lorry bearing Registration No.TN-10-C-9394. During drilling borewell, the deceased driver took rest lying in the cabin of the vehicle and after completion of the drilling work, he was found dead. Death of the deceased was reported to the Industrial Police Station, Rathalam and a case was registered in Crime No.4 of 2006. Postmortem upon the deceased was also done. Hence, the 7th respondent herein, as employer and owner of the said vehicle and the appellant herein, as insurer of the said lorry of the 7th respondent are severally and jointly liable to pay compensation as sought for in the claim petition. 4. The 7th respondent did not file any objection to the claim and thereafter, did not turn up and he was set ex-parte in the proceedings before the Deputy Commissioner of Labour at Dindigul. The appellant herein/insurer alone contested the said claim by filing objections and adducing evidence. 4. The 7th respondent did not file any objection to the claim and thereafter, did not turn up and he was set ex-parte in the proceedings before the Deputy Commissioner of Labour at Dindigul. The appellant herein/insurer alone contested the said claim by filing objections and adducing evidence. The Competent Authority/Deputy Commissioner of Labour passed an award directing the second respondent Insurance Company to deposit the compensation amount of Rs.2,34,209/- within 30 days from the date of receipt of a copy of that order, failing which, the said compensation amount is to be deposited along with interest at the rate of 12% from the date of accident till the date of deposit. 5. Aggrieved by the award of compensation, the insurer/2nd respondent filed the present appeal before this Court after depositing the award amount before the Deputy Commissioner of Labour, Dindigul. 6. The learned counsel appearing for the appellant would contend that the death of the deceased was a natural one and he was not accelerated due to nature of employment he was carrying on and in the absence of any casual connection between the nature of job and the cause of death, a claim under the Workmen Compensation Act is not maintainable and there is no proof as to the cause of death and as such, the claimants are not entitled to claim any compensation. 7. The 7th respondent herein is the owner of the borewell lorry, bearing Registration No.TN-10-C-9394 of which the deceased Palaniappan was employed as permanent driver. The claim petition was filed by the legal representatives of the deceased Palaniappan taking the stand that the death of the deceased had occurred during the course of and within the employment under the 7th respondent herein. The vehicle was the subject matter of Insurance with the appellant/insurer and therefore it was claimed that the insurer was liable to pay the compensation as risk of the driver was covered under the policy. There is no dispute that the vehicle was the subject matter of Insurance and the risk of the driver was covered under the policy. 8. Admittedly, there was no accident occurred on the date of death of the deceased, who was under the employment of 7th respondent herein. There is no dispute that the vehicle was the subject matter of Insurance and the risk of the driver was covered under the policy. 8. Admittedly, there was no accident occurred on the date of death of the deceased, who was under the employment of 7th respondent herein. The deceased was sent as directed by the 7th respondent herein driving the borewell lorry, bearing Registration No.TN-10-C-9394 from Namakkal to Rathalam in Maharashtra for borewell drilling and after completion of drilling work on 17.01.2006, while the deceased was sleeping in the cabin of the lorry, was found dead. The claimants contended that since the deceased drove the lorry without taking any rest continuously for five days from Namakkal to Rathalam in Maharashtra State and he was sleeping in the cabin of the lorry near a borewell, the deceased died due to long and strain driving and drilling vibration or sound. 9. Ex.P5 along with translated version in Tamil reveals that the deceased died due to heart-attack. There is no evidence that the deceased was having any disease or was suffering any heart ailment prior to the date of his death. Further, there is no documentary evidence to show that the death of the deceased was on account of stress and strain during the course of employment. P.W.2/cleaner, who is said to have accompanied with the deceased, travelled in the lorry did not depose that the deceased died on account of stress and strain by driving the lorry for long distance. There is no material evidence on the side of the claimants that the deceased died due to stress and strain as the consequence of continuance long distance driving. 10. The learned counsel for the respondents/claimants referred the following decisions:- (i). The Judgment of Principal Bench of this Court in ICICI Lombard Geneal Insurance Co.Limited, Salem Vs. Muniammal and others reported in (2013 (2) TN MAC 334), wherein it has been held that “it is only due to job strain and stress, that is, continuously driving of a goods loaded Lorry for a long distance, has resulted in the death of the deceased causing damage to the vital organs and has resulted in cerebral edema which is evident from the report given by the Hospital Authorities.” (ii). In the Judgment of this Court in Oriental Insurance Co.Ltd., Vs. In the Judgment of this Court in Oriental Insurance Co.Ltd., Vs. S.Neelavathy and Others reported in ( 2016 ACJ 1656 ) in which the earlier decision cited supra also referred. (iii). The Judgment of Andhra Pradesh High Court in Andhra Pradesh State Road Transport Corporation Vs. Burri Sulochana reported in ( 2001 ACJ 1222 ) dated 07.09.1990, wherein it has been held, ''Cause of death of the workman due to the chest pain was because of excessive stress and strain he had to undertake in driving the vehicle continuously from Udaipur to Calcutta and back. The casual connection is appellant on admitted fact itself. Therefore, the award needs no interference. 11. In contra to the above decisions, the learned counsel for the appellant would rely the following decisions in support of his contentions:- (i) The Judgment of the Apex Court in Jyothi Ademma Vs. Plant Engineer, Nellore & Another reported in (2007-1- L.W. 867) wherein it has been held, If the workman dies as 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; and no liability is fixed upon the employer – Deceased was suffering from chest disease and was previously being treated for such disease; 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. (ii) An yet another Judgment of the Apex Court in Malikarjuna G.Hiremath Vs. Branch Manager, The Oriental Insurance Company Limited and Another reported in (2009 (1) TN MAC 346 (SC)) in which it has been held that under Section 3(1) it has to be established that there was some casual connection 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 decease as a result of wear and tear of the employment, no liability is fixed upon the employer. 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 decease as a result of wear and tear of the employment, no liability is fixed upon the employer. But if the employment is a contributory clause and 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. 12. An accident may lead to death, but an accident had taken place must be proved. Only because a death has taken place in the course of employment will not amount to accident. In otherwards, the death must arise out of accident. There is no presumption that an accident had occurred. 13. The deceased in this case on hand was working as permanent driver under the employment of the 7th respondent herein. While the deceased was working as driver in the 7th respondent vehicle M/s.Aswin Borewells Lorry, bearing Registration No.TN-10-C-9394, was sent to Rathalam, Madhya Pradesh in a contract of Borewell drilling from Namakkal, Tamil Nadu, as per the direction of the 7th respondent herein. Admittedly, the above vehicle was insured with the appellant herein and the insurance policy was in force on the date of death of the driver of the deceased. 14. The claimants have admitted that while the driver taking rest by lying in the cabin of the vehicle viz., lorry, the driver of the lorry was found dead. Claimants have pleaded in their claim petition that due to his restless and strainful work and drilling vibration and quivering movement or sound made him psychological set back. There is no dispute that the deceased was aged about 60 years on the date of death. P.Ws.1 and 2 did not depose during their evidence that the death was caused to the deceased due to restless strainful work/driving and drilling vibration or sound, as pleaded in their claim petition. As per the medical certificate/postmortem certificate produced by the claimants, the deceased died due to cardiac arrest/heart attack. There is no evidence to show that the deceased was having or suffering from any ailment or disease prior to his death. As per the medical certificate/postmortem certificate produced by the claimants, the deceased died due to cardiac arrest/heart attack. There is no evidence to show that the deceased was having or suffering from any ailment or disease prior to his death. Similarly, there is no evidence to prove that the death is caused due to his stress and strain because of long way driving. 15. Admittedly, the driver/deceased did not die as a result of accident involving a vehicle, but the vehicle was taken by the deceased in the course of employment at the behest of the 7th respondent/owner/employer. There was no casual connection between the death of the deceased and the vehicle while the deceased was sleeping/taking rest in the cabin of the lorry he was found dead after completion of the drilling, which was carried on 17.01.2006 at Rathalam, Maharashtra. Since there was no such casual connection, the insurer would not be liable in terms of the policy as the borewell lorry which was the subject matter of the insurance was not involved in the accident and the insurer had no liability. Only because a death was taken place in the course of employment will not amount to accident, in otherwards, death must arise out of accident. There is no presumption that an accident had occurred. It is not established in this case that the death was aggravated due to stress and strain. To prove that accident had taken place, factors to be established, inter alia, are: 1. Stress and strain arising during the course of employment; 2. Nature of employment and 3. Injury aggravated due to stress and strain. In view of the above principles, facts and circumstances of the case, it is not sufficient to fasten liability either insured or insurer, as stated in the Judgment of the Apex Court reported in (2009 (1) TN MAC 346 (SC)) supra. There is no dispute regarding the quantum of compensation arrived by the Deputy Commissioner of Labour in its order. 16. There is no dispute regarding the quantum of compensation arrived by the Deputy Commissioner of Labour in its order. 16. Considering the above facts and circumstances of the case and also the decisions referred to by the counsel for the appellant and there is no evidence to prove that the death was caused due to stress and strain on the date of death of the deceased, this Court is inclined to allow this appeal, setting aside the award passed by the Deputy Commissioner of Labour, Dindigul in W.C.No.2 of 2007 dated 30.10.2010. 17. In the result, this Civil Miscellaneous Appeal is allowed by setting aside the award passed by the Commissioner of Workmen Compensation (Deputy Commissioner of Labour), Dindigul, in W.C.No.2 of 2007 dated 30.10.2010. The appellant is entitled to get back the amount deposited before the Deputy Commissioner of Labour, Dindigul. No costs.