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Allahabad High Court · body

2019 DIGILAW 2696 (ALL)

Reliance General Insurance Co. Ltd. v. Warishan

2019-12-04

PRADEEP KUMAR SRIVASTAVA

body2019
JUDGMENT : 1. Heard Shri. Rahul Sahai, learned counsel for the appellant and Shri Ved Mani Sharma, learned counsel for the respondents. 2. This first appeal has been filed against award dated 30.10.2013 passed by Workmen's Compensation Commissioner/Assistant Commissioner, Bareilly, in Case No. 16/E.C.A/12 (Smt. Warishan and others Vs. Reliance General Insurance Co. Ltd. and another) by which the learned Commissioner has awarded compensation of Rs. 5,19,154/- along-with 8% simple interest per annum from the date of award. 3. Before the learned Commissioner an application was filed under Employees Compensation Act, 1923 as amended in the year 2010 for award of compensation. In the application it was alleged that the husband of the claimant Shakeel Shah alias Shakir Shah was driver of defendant no. 2 in his private car bearing registration no. U.P 25-E/4065 on payment of Rs.6,000/-per month with other expenses. On 15.09.2011, the deceased was coming from Pilibhit to Bareilly by that car, at about 7 p.m., on the turn of village Gotiya the car suddenly became out of order and stopped. The deceased came out of the car and standing on the road side, he started giving information on phone to the car owner. While he was giving information, some unknown vehicle dashed the deceased because of which he sustained serious and fatal injuries. He was taken to Mahajan Hospital, Bareilly for treatment from where he was referred to Lucknow Medical College where he was admitted and died on 22.09.2011. FIR was lodged in respect of the accident and offence was registered as crime no. 962/2011 under Section 279, 338, 304-A I.P.C. The car owner gave Rs. 25,000/- for the treatment of the deceased and nothing more was provided despite the demand raised by the claimant. The car owner said that the compensation can be claimed from the Insurance Company and relevant papers was given by him to the claimant. The said car was insured with the Insurance Company at the time of accident. Therefore, the petition was filed for compensation. 4. Notices were sent and despite service the car owner did not appear and the case was proceeded against him ex-parte on 1.09.2012. The said car was insured with the Insurance Company at the time of accident. Therefore, the petition was filed for compensation. 4. Notices were sent and despite service the car owner did not appear and the case was proceeded against him ex-parte on 1.09.2012. Insurance Company filed written statement denying the allegations of the application and stating that the deceased was not an employee with the car owner nor any accident took place by that car nor at the time of accident, the deceased was in the course of employment of the car owner. The age and salary was also denied. The petition has been filed by framing false story and the petitioners are not dependant of the deceased. The said car was being driven in violation of the Insurance policy. 5. The following issues (translated in English) were framed on the basis of pleadings of the parties: 1. Whether the deceased Shakeel Shah alias Shakir Shah was employed as driver of defendant no. 2 for his car bearing registration no. U.P 25-E/4065 and in the course of employment on 15.09.2011, the accident took place and because of sustained injuries during treatment he died on 22.09.2011? 2. Whether the car U.P 25-E/4065 of defendant no. 2 was insured on the date of accident and was been driven by driver having valid and effective driving licence? 3. Whether the claimants are dependants of the deceased at the time of accident? 4. Whether the defendant no. 2, the car owner was giving monthly salary of Rs. 6,000/- to the deceased and what was the age of the deceased at the time of accident? 5. Whether the claimants are entitled for compensation, if yes, how much and from which defendant. 6. From the side of claimant the mother of the deceased was examined and as documentary evidence registration certificate of the car, insurance policy, driving licence of the deceased, the copy of FIR, site map, final report, post-mortem report, inquest report, papers relating to treatment of the deceased, written report given in respect of accident, X-Ray and Ultrasound report of the deceased, bills of purchase of medicines, information given by Lucknow Medical College regarding death of deceased to police and other papers have been filed. 7. After hearing both the sides the learned Commissioner passed the impugned award and aggrieved by that this appeal has been filed. 8. 7. After hearing both the sides the learned Commissioner passed the impugned award and aggrieved by that this appeal has been filed. 8. The appellant has challenged the impugned award on the ground that the award is arbitrary, illegal and against the evidence on record. There was no evidence regarding the deceased being in the employment of the car owner. Following substantial questions of law was raised on the basis of which it was requested that the impugned award is liable to be set aside: 1. Whether in the facts and circumstances of the case, as well as evidence on record, in the absence of there being any cogent material to determine the employment of the deceased as a driver with the owner respondent, the Commissioner below recorded an erroneous and a perverse finding holding him to be employed as a driver with the owner respondent? 2. Whether in the absence of records of employment being produce (as required to be maintained under clause 28(3) of Indian Motor Tariff Section 13A of the Payment of Wages Act, 1936 and Section 18 if the Minimum Wages Act, 1948 adverse inference was liable to be drawn against the claimant and the Commissioner below erred in placing reliance upon wholly irrelevant consideration, while determining issue no. 1? 3. Whether in the facts and circumstances of the case and in light of the fact that at the time of the accident, the deceased was not seated in the insured vehicle in question, which in turn did not meet with any accident, the Commissioner below was unjustified in holding the Insurance Co./Appellant as liable to pay the amount under the award? 4. Whether in the facts, circumstances as well as evidence brought on record, the Commissioner below erred in discarding the contents of the inquest report and erred in placing reliance upon highly belated First Information Report in concluding that the death of the deceased had arisen arising out of the course of his employment? 5. Because the Commissioner below erred in law in assessing compensation even beyond what was claimed by the claimant? 9. The first ground of attack has been that the deceased was not employee of the car owner and he was not even driving the car at the time of incident. 5. Because the Commissioner below erred in law in assessing compensation even beyond what was claimed by the claimant? 9. The first ground of attack has been that the deceased was not employee of the car owner and he was not even driving the car at the time of incident. Section 2 (n) of the Employee's Compensation Act, 1923 defines 'employee' as below: “(n) "workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is - (i) a railway servant as defined in Section 3 of the Indian Railways Act 1890 (9 of 1890) not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II or (ia) (a) a master seaman or other member of the crew of a ship. (b) a captain or other member of the crew of an aircraft (c) a person recruited as driver helper mechanic cleaner or in any other capacity in connection with a motor vehicle (d) a person recruited for work abroad by a company and who is employed outside India in any such capacity as is specified in Schedule II and the ship aircraft or motor vehicle or company as the case may be is registered in India or; (ii) employed in any such capacity as is specified in Schedule II whether the contract of employment was made before or after the passing of this Act and whether the contract is expressed or implied oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall where the workman is dead includes a reference to his dependants or any of them.” 10. Item XXV of Schedule II includes driver within the definition of the employee. Item XXV of Schedule II includes driver within the definition of the employee. Section 3 of the Act deals with the Employer's liability for compensation and provides as below: (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 - the workman having been at the time thereof under the influence of drink or drugs or the wilful 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 the wilful removal or disregard by the workman of any safety guard or other device he knew to have been provided for the purpose of securing the safety of workman. (2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment or if a workman whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment contracts any disease specified therein as an occupational disease peculiar to that employment the contracting of the disease shall be deemed to be as injury by accident within the meaning of this section and unless the contrary is proved the accident shall be deemed to have arisen out of and in the course of the employment :- Provided that if it proved - that a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment; and that the disease has arisen out of and in the course of the employment the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section : Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C as the case may be as an occupational disease peculiar to the employment and that such disease arose out of the employment the contracting of the disease shall be deemed to be injury by accident within the meaning of this section. (2A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment the contracting whereof is deemed to be an injury by accident within the meaning of this section and such employment was under more than one employer all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may in the circumstances deem just. (3) The Central Government or the State Government after giving by notification in the Official Gazette not less than three months' notice of its intention so to do may by a like notification add any description of employment to the employments specified in Schedule III and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively and thereupon the provisions of sub-section (2) shall apply in the case of a notification by the Central Government within the territories to which this Act extends or in case of and notification by the State Government within the State as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments. Save as provided by sub-section s (2), (2A) and (3) no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment. Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a civil court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act. 11. 11. Thus, section 3 incorporates that the employer shall be liable to pay compensation for personal injuries caused to the employee by an accident arising out of and in the course of his employment. To hold the liability, it is not necessary to prove negligence on the part of employer and as such, the liability of the employer to pay compensation is absolute subject to those three exceptions which have been carved out in the section itself. The employer is absolved from the liability of paying compensation if the employee at the relevant time was under the influence of drinks or drugs or who has wilfully disobeyed an order given or rule framed for the safety of workman, or in cases where the workman has wilfully removed a safety guard or other devices provided for his safety. In this case, there is nothing on record to show that the case is covered under any of the exceptions. 12. Now, the next question is with regard to the determination of 'course of employment' and whether the deceased employee was in the course of employment when the accident took place. In Mackinnon Mackenzie & Co.(P). Ltd v Ibrahim Mahammad Issak, AIR 1970 SC 1906 , the Supreme Court held: “The words in the course of employment mean in the course of the work which the workman is employed to do and which is incidental to it. The words arising out of employment are understood to mean that during the course of employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In other words there must be a causal relationship between the accident and the employment. The expression arising out of employment is again not confined to the mere nature of the employment. The expression applies as such to its nature, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises out of employment. The expression arising out of employment is again not confined to the mere nature of the employment. The expression applies as such to its nature, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises out of employment. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.” 13. In Talcher Thermal Station v Bijuli Naik, 76 (1993) CLT 699 (Orrisa), the Court has observed: “The pre-conditions for attracting the provisions of section 3(1) of the Act are that death or injury must be caused to a employee; the said injury must have been caused by accident; and the accident must have arisen out of and in course of his employment. A casual connection between the employment and the injury caused by the accident must exist. If after looking the at the entire facts, a fair inference can be drawn that the employment caused the injury, then the employer would be liable to pay the compensation. The liability under section 3(1) of the Act would accrue, if it is established that an injury has been caused to an employee and the accident arose out of and in the course of his employment.” The Court further laid down following principles to determine the course of employment and arising out of employment: “(i) there must be a causal connection between the injury and the accident and the accident and the work done in the course of employment; (ii) the onus is upon the appellant to show that it was the work and the resulting strain which contributed to or aggravated the injury; (iii) it is not necessary that the workman must be actually working at the time of his death or that death must occur while he was working or had just ceased to work; and (iv) where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of personal injury, it would be enough for the workman to succeed. But where the accident involved a risk common to all humanity and did not involve any peculiar or exceptional danger resulting from the nature of the employment, or where the accident was the result of an added peril to which the workman, by his own conduct, exposed himself and which peril was not in the normal performance of the duties of his employment, then the employer will not be liable under section 3 of the Act.” 14. In Shakuntala Chandrakant Shreshti v Prabhakar Maruti Garvali, AIR 2007 SC 248 , it has been reiterated by the Court that there has to be a proximate nexus between cause of death and employment instead of a stray mention that death took place during the course of employment. The Court laid down following principles to determine the course of employment: “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 appellant 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.” 15. Section 30 of the Act provides for appeal against order of Commissioner. 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.” 15. Section 30 of the Act provides for appeal against order of Commissioner. It lays down as follows: “(1) An appeal shall lie to the High Court from the following orders of a Commissioner namely :- (a) an order as awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (a) an order awarding interest or penalty under section 4A; (b) an order refusing to allow redemption of a half-monthly payment; (c) an order providing for the distribution of compensation among the dependants of a deceased workman or disallowing any claim of a person alleging himself to be such dependant; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or (e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions : Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and in the case of an order other than an order such as is referred to in clause (b) unless the amount in dispute in the appeal is not less than three hundred rupees : Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner or in which the order of the Commissioner gives effect to an agreement come to by the parties : Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of the Limitation Act 1963 (36 of 1963) shall be applicable to appeals under this section.” 16. The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of the Limitation Act 1963 (36 of 1963) shall be applicable to appeals under this section.” 16. In Shakuntala Chandrakant Shreshti (supra), the Supreme Court has explained the expression 'question of law' which is inherently required for maintaining an appeal against the order of compensation passed under the Act. The Court laid down as follows: “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.” 17. It is clear from the scheme of the Act that for extending the benefit of the beneficial provision, the contract of employment may be express, implied, written or oral and to succeed in the claim for compensation, it is to be established only that the injured or deceased employee, at the time of accident was in the employment and was engaged in employer's work or for the furtherance of the employer's work and was not doing something for his own benefit or accommodation. It was found established by the learned Commissioner that, in absence of any otherwise evidence on record, the accident took place in the course of employment and the probabilities are more in the favour of the deceased to infer that the accident arose out of and in the course of employment. The learned counsel to the appellant has taken reference of the judgement in Mamtajbi Bapusab Nadaf v United India Insurance Co., 2010 (10) SCC 536 where the deceased was a workman engaged in uploading and unloading food-grains from a tractor. While unloading to underground storage, he climbed up to the grocery pit to clean the same and fell into the pit and died because of suffocation. His claim was rejected on facts of the case finding that the vehicle was not involved in the accident. It is evident that the facts of this case is very different and is based on the non involvement of the vehicle and the accident took place when the deceased was engaged in entirely different work to that of his employment. His claim was rejected on facts of the case finding that the vehicle was not involved in the accident. It is evident that the facts of this case is very different and is based on the non involvement of the vehicle and the accident took place when the deceased was engaged in entirely different work to that of his employment. Hence, the referred judgement cannot be applied in the factual matrix of this case. 18. On the other hand, the learned counsel to the respondent-claimant has referred to two judgements, both of Orissa High Court, namely, S.D. Manager, National Insurance Company v Shaibarani Mohanta, 2019 (2) TAC 115 and S.D. Manager, National Insurance Company v Suresh Kumar Behera, 2019 (2) TAC 461 to show that in both the cases, driver of the truck died when he stopped the truck and stepped down to take food and was dashed by another truck and the Court applying the doctrine of notional extension and held that there was casual connection between the employment of the deceased and his accidental death and the accident took place in the course of employment. 19. Clearly, at the time of accident, the driver was talking on phone giving information about the car going out of order. As the driver of the car, he was coming back driving the car from Pilibhit and on the way, when the car went out of order and stopped, he came down from the car to inform the car owner. This fact has been nowhere rebutted by any evidence from the side of Insurance Company. The insurance company neither gave any evidence nor made any effort to summon and produce the car owner in evidence. The fact that the deceased was not inside the car will not make any difference as the deceased would certainly continue to be in course of employment unless he returned to the car owner. There was no occasion for him to be at the place of occurrence unless he was returning from Pilibhit to his destination driving the car of the car owner. 20. The next question raised from the side of the appellant is in respect of delay in FIR and stipulation in respect of cause of death in inquest report and also submission of FR in the matter by police after investigation. 20. The next question raised from the side of the appellant is in respect of delay in FIR and stipulation in respect of cause of death in inquest report and also submission of FR in the matter by police after investigation. It appears that the accident took place on 15.9.2011, deceased died on 22.9.2011 and FIR was lodged on 12.11.2011. The FIR itself contains that the FIR was lodged after the religious ritual which takes place after 40 days from the date of death amongst Muslims. The explanation is convincing for the purpose of compensation claim. So far as the stipulation in inquest report is concerned, the purpose of preparing inquest report is to despatch the dead body for post-mortem and it has been correctly pointed out by the learned Commissioner that the Insurance Company, by any evidence, has not been able to show that the witnesses were eyewitnesses of the accident nor anyone of them have been examined. The learned Commissioner has also mentioned that, though, FR has been submitted by police after investigation, the case is pending before the court of A.C.J.M and moreover, in the FR, the fact of accident has been mentioned and because no witness of accident was found due to lapse of time, FR has been submitted. It has been also rightly concluded by the learned Commissioner that no evidence was given by the Insurance Company and even a surveyor was not deputed to bring facts as alleged by the Insurance Company. 21. The further submission is that the claim petition was filed for Rupees five lacs and the learned Commissioner has awarded Rs.519154/- with 8%interest and as such the impugned judgement suffers from illegality as it goes beyond what was claimed by the claimants. The award amount has been calculated on the basis of legally permissible yardsticks and what is expected is that the amount of compensation should be just and reasonable. In Municipal Corporation of Greater Bombay v Kisan Gangaram Hire, (2009) 16 SCC 259 , compensation claim for Rs. 75000/- was filed but the Tribunal awarded Rs. 105000/- finding the same to be just and the same was upheld. As such, there is no illegality in it. 22. In Municipal Corporation of Greater Bombay v Kisan Gangaram Hire, (2009) 16 SCC 259 , compensation claim for Rs. 75000/- was filed but the Tribunal awarded Rs. 105000/- finding the same to be just and the same was upheld. As such, there is no illegality in it. 22. On the basis of above discussion, I find that the learned Commissioner has given finding on the basis of evidence that at the time of accident, the deceased was performing his duties and was in the course of his employment. He was employed on the vehicle as driver on payment of Rs.6000/- rupees monthly wages. The learned Commissioner has rightly calculated the compensation after applying multiplier and making due deduction against personal expenses. The issues raised as substantial question of law relate to facts and they have been duly considered disposed in the impugned judgement on the basis of facts evidence and after applying correct law. there is no perversity or illegality in the impugned judgement and award nor any substantial question of law is involved in this appeal. The appeal lacks merit and is liable to be dismissed. 23. Accordingly, the first appeal from order is dismissed.