Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2708 (RAJ)

The New India Assurance Company Limited v. Jumman Khan

2019-10-18

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - This appeal under Section 30 of the Workmen's Compensation Act, 1923 has been filed for the following reliefs :- "It is, therefore, most humbly and respectfully prayed that this appeal may kindly be allowed, the judgment and award dated 06.6.2007 passed by the learned Commissioner, Workmen's Compensation Act, Bhilwara in Case No.43/2004 may kindly be quashed and set aside and the claim petition be ordered to be dismissed as against the appellant with costs throughout and/or in the alternative complete liability be fastened on the employer (whosoever it is) only and the Award may kindly be modified accordingly." 2. The unfortunate death of Jabbar Khan happened when he was employed as Driver on Truck No.RJE8537 and died during his course of his employment on 29.8.2000 while travelling with goods i.e. crop of wheat, from Lambha to Hurda and died due to heart attack. 3. Mr. Sanjeev Johari, counsel for the appellant assisted by Mr. Subhankar Johari, submits that it is an admitted fact that Jabbar Khan expired due to heart attack, which is a natural cause of death and that cannot be attributed to his employment. Counsel for the appellant has relied upon the following decision : [1]- Jyothi Ademma Vs. Plant Engineer, Nellor & Anr., (2006) 5 SCC 513 and [2]- Shakuntala Chandrakant Shresthi Vs. Prabhakar Maruti Garvali & Anr., (2007) 11 SCC 668 . 4. Counsel for the respondent has addressed the issue by submitting precedent law of this Court in The Oriental Insurance Company Limited Vs. Smt. Ganga Devi (S.B. Civil Misc. Appeal No.859/2010, decided on 22.8.2016). The judgment reads as follows :- "The matter comes up for confirmation of the interim order granted by this Court on 27.08.2010. The appeal was admitted on 07.10.2015. With the consent of the parties the matter is finally heard. This appeal under Section 30 of the Workmen's Compensation Act, 1923 ('the Act') has been filed by the appellant aggrieved against the judgment dated 31.03.2010 passed by the Workmen's Compensation Commissioner, Bhilwara ('the Commissioner'), whereby the Commissioner for death of one Goverdhan Singh awarded a sum of Rs.3,37,800/- as compensation alongwith interest of Rs.1,31,764. This appeal under Section 30 of the Workmen's Compensation Act, 1923 ('the Act') has been filed by the appellant aggrieved against the judgment dated 31.03.2010 passed by the Workmen's Compensation Commissioner, Bhilwara ('the Commissioner'), whereby the Commissioner for death of one Goverdhan Singh awarded a sum of Rs.3,37,800/- as compensation alongwith interest of Rs.1,31,764. It is submitted by learned counsel for the appellant that from the material available on record, it is apparent that the death of Goverdhan Singh did not arise out of and during the course of his employment, inasmuch as, the reason of his death apparently is heartfailure and, therefore, in view of law laid down by Hon'ble Supreme Court in case of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali & Anr.,2007(1) MACD(SC) 251 , it cannot be said that the death arose out of and during the course of employment so as to make the claimants entitled for compensation under the provisions the Act. Learned counsel for the respondents submitted that the facts are not in dispute that the deceased Goverdhan Singh was in employment of the insured employer engaged in driving the vehicle at the time when he was found dead near the vehicle. From the postmortem report also the reason of his death cannot be deciphered and, therefore, in view of the fact that the deceased was only 39 years of age, it is not the case of the appellant-Insurance Company that the deceased was having prior history of heart-ailment, no question in this regard was put to the claimants, the only reason for his untimely death could be stress suffered by him while working as driver of the insured Dumper and, therefore, it cannot be said that the claim was not maintainable. Reliance was placed on judgment of Hon'ble Supreme Court in the case of Param Pal Singh (Mst.) th. Father v. National Insurance Co. & Anr., (2013) 3 SCC 409 . I have considered the submissions made by learned counsel for the parties and have perused the material available on record. Hon'ble Supreme Court in the case of Param Pal Singh (supra) after considering large number of judgments including the judgment in the case of Shakuntala (supra) relied on by learned counsel for the appellant, laid down as under:- "29. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. Hon'ble Supreme Court in the case of Param Pal Singh (supra) after considering large number of judgments including the judgment in the case of Shakuntala (supra) relied on by learned counsel for the appellant, laid down as under:- "29. Applying the various principles laid down in the above decisions to the facts of this case, we can validly conclude that there was CAUSAL CONNECTION to the death of the deceased with that of his employment as a truck driver. We cannot lose sight of the fact that a 45 years old driver meets with his unexpected death, may be due to heart failure while driving the vehicle from Delhi to a distant place called Nimiaghat near Jharkhand which is about 1152 kms. away from Delhi, would have definitely undergone grave strain and stress due to such long distance driving. The deceased being a professional heavy vehicle driver when undertakes the job of such driving as his regular avocation it can be safely held that such constant driving of heavy vehicle, being dependant solely upon his physical and mental resources & endurance, there was every reason to assume that the vocation of driving was a material contributory factor if not the sole cause that accelerated his unexpected death to occur which in all fairness should be held to be an untoward mishap in his life span. Such an untoward mishap can therefore be reasonably described as an accident as having been caused solely attributable to the nature of employment indulged in with his employer which was in the course of such employers trade or business. 30. Having regard to the evidence placed on record there was no scope to hold that the deceased was simply travelling in the vehicle and that there was no obligation for him to undertake the work of driving. On the other hand, the evidence as stood established proved the fact that the deceased was actually driving the truck and that in the course of such driving activity as he felt uncomfortable he safely parked the vehicle on the side of the road near a hotel soon whereafter he breathed his last. On the other hand, the evidence as stood established proved the fact that the deceased was actually driving the truck and that in the course of such driving activity as he felt uncomfortable he safely parked the vehicle on the side of the road near a hotel soon whereafter he breathed his last. In such circumstances, we are convinced that the conclusion of the Commissioner of Workmens Compensation that the death of the deceased was in an accident arising out of and in the course of his employment with the second respondent was perfectly justified and the conclusion to the contrary reached by the learned Judge of the High Court in the order impugned in this appeal deserves to be set aside. The appeal stands allowed. The order impugned is set aside. The order of the Commissioner for Workmens Compensation shall stand restored and there shall be no order as to costs. " In view of the later judgment in the case of Param Pal Singh (supra), which has taken into consideration the earlier judgment in the case of Shakuntala (supra), Hon'ble Supreme Court has in a rather similar case, though it has come on record that the vehicle in question at the time of accident was empty, held that the death/accident caused is attributable to the nature of employment, it cannot be said that the claim petition was not maintainable before the Commissioner and/or that the death of the employee did not arise out of and in the course of his employment. No other point was argued. In view of the above, the appeal has no substance, the same is therefore, dismissed." 5. Counsel for the respondent submits that such causal connection is established in the present case also. 6. After hearing counsel for the parties and perusing record, this Court is of the opinion that it is admitted position that Jabbar Khan was on duty on truck No.RJE8537 as employee and was on long distance drive carrying goods. This Court also takes note of the fact that while on duty he fell ill and while undergoing treatment expired because of failure of heart. Causal connection is, thus, established because Jabbar Khan had taken the goods on 28.8.2000 and was travelling and probably due to exertion, stress and strain of long distance driving, fell ill and while undergoing treatment died due to heart failure. Causal connection is, thus, established because Jabbar Khan had taken the goods on 28.8.2000 and was travelling and probably due to exertion, stress and strain of long distance driving, fell ill and while undergoing treatment died due to heart failure. Although, the post-mortem report states cause of death as heart attack but the theory of causal connection laid down by the Hon'ble Apex Court in Param Pal Singh (Mst.) th. Father Vs. National Insurance Co. & Anr., (2013) 3 SCC 409 whereby earlier judgments, particularly, Jyothi Ademma Vs. Plant Engineer, Nellor & Anr., (supra) and Shakuntala Chandrakant Shresthi Vs. Prabhakar Maruti Garvali & Anr.(supra) and other precedent law has been considered; clearly holds the field, thus, there is no reason for interference in appeal. 7. The appeal is dismissed. The stay petition also stands dismissed.