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2024 DIGILAW 1091 (RAJ)

Sosar Kanwar, W/o. Samant Singh v. Amar Singh, S/o. Nand Singh

2024-08-12

NUPUR BHATI

body2024
JUDGMENT : (Nupur Bhati, J.) 1. The present civil misc. appeal has been filed under Section 30 of the Workmen’s Compensation Act, 1923 (‘Act of 1923’), assailing the award passed by the Commissioner, Workmen Compensation Officer, Rajsamand, Bhilwara, vide order dated 20.12.2016 whereby, the claim filed by the appellants/claimants has been dismissed. Certain other ancillary relief(s) have also been sought by the appellants/claimants. 2. Briefly stated, the facts of the case are that the deceased, Mr. Samant Singh, husband of the appellants/claimants worked as a driver for respondent no. 1, for his truck bearing number RJ-27-G-1257 and used to earn Rs. 5,000/-for the said job. On 05.11.2005, the deceased was taking marble stone to Ahmedabad by the said vehicle and en route, his health deteriorated and subsequently, he died. 3. After the service of notice to the respodents, respondent no. 1, employer did not appear and therefore, the matter was heard ex-parte respondent no.1, employer. Respondent no. 2, insurance company, in its reply denied the factum of the claim and stated that the said incident did not occur due to the insured vehicle bearing number RJ-27-G-1257, and that, the deceased died a natural death. It was also stated by the respondent no.2, insurance company it its reply that, the company was not informed about the said incident and that, there was violation of the policy conditions. It was also stated that the deceased did not possess a valid and effective driving license at the time of the incident, while driving the insured vehicle. 4. Witnesses A.W.1, Sosar Kanwar, A.W.2 Dhan Singh and A.W.3, Kalu Singh were examined from the appellants/claimants’ side, and Exhibits 1 to 6 have been produced by the appellants/claimants. Contrary to this, N.A.W. 1, Bheru Lal was examined from the respondent no. 2/insurance company’s side and Exhibits 1 to 4 have been produced by the respondent no.2. 5. After hearing the parties, the Commissioner framed issues, including: 6. The Commissioner, while deciding the issues held that the deceased, Late Samant Singh did not die in the course of employment and his death was not related to his employment on 05.11.2005 and therefore, the claim of the appellants/claimants was dismissed. 7. Thus, aggrieved of the order passed by the Commissioner, Workmen Compensation Officer, Jurisdiction Rajsamand, District Bhilwara, dated 20.12.2016, the appellants/claimants have filed the present appeal. 8. 7. Thus, aggrieved of the order passed by the Commissioner, Workmen Compensation Officer, Jurisdiction Rajsamand, District Bhilwara, dated 20.12.2016, the appellants/claimants have filed the present appeal. 8. Learned counsel for the appellants/claimants submitted that the death of the deceased occurred in the course of employment of the respondent no.1, employer, since the deceased was carrying marble stone to Ahmedabad, at the time of his death, which forms a part of his job and therefore, the Commissioner erred in coming to the conclusion that the death did not occur during the course of the employment. 9. Learned counsel for the appellants/claimants also submitted that the statement of A.W. 3, Kalu Singh the deceased was already in his ill-health while driving the vehicle on 05.11.2005, cannot be considered in isolation to the fact that the said condition was informed to the employer, respondent no. 1, before the employer assigned the job of taking the marble stones to Ahmedabad, to the deceased. He thus submitted that after disclosing the condition, the burden falls upon the employer, since he assigned the job to the deceased on 05.11.2005, even after knowing that the deceased was not feeling well. 10. Learned counsel for the appellants/claimants also submitted that when the deceased was a driver, then stress and strain can be assumed to have occurred during the course of employment which resulted in his death and the burden to prove the contrary lies upon the employer. He also placed reliance upon the judgment passed by the Hon’ble High Court of Karnataka reported in 2019 ACJ 3086 . The relevant paras are reproduced as under: “7. The cited decisions like Jyothi, Shakuntala and Rashida cases (supra) could be distinguished as in the case of Jyothi Ademma and Shakuntala, wherein it is held that the nature of job has not been stated as it is only referred as a workmen. Similarly, in the case of Rashida, the issue considered is relating whether the death is arising of the employment or not. In the present case the deceased was a heavy vehicle driver -Tanker, whereas in the Param Pal Singh case the issue was relating to the driver who was driving a truck. In fact, nature of the case in the hand as well as Param Pal Singh (supra) are almost identical. In the present case the deceased was a heavy vehicle driver -Tanker, whereas in the Param Pal Singh case the issue was relating to the driver who was driving a truck. In fact, nature of the case in the hand as well as Param Pal Singh (supra) are almost identical. There also driver while driving the truck felt giddiness and parked the vehicle on the roadside, who was taken to hospital and declared brought dead. Accordingly, the cited decision by the appellants are distinguished in view of the Parampal Singh (Supra). Strain and stress issue which are required to be proved is beyond the control of the claimants for the reasons that, if the doctor fails to write/give opinion as to the reasons for death or even while writing Hypertensive intracerebral bleed, it is only a conclusion and not supported by any reasons. Therefore, one cannot pick up the words used in the death certificate so as to come to the conclusion that there is no stress or strain while driving the vehicle. That apart, to determine the stress and strain in a person or it all depends on the medical examination. The deceased was admitted to Hospital where he died, while giving death certificate, the Doctor has not elaborated the reason for death. Therefore, one has to come to the conclusion that the deceased while feeling uneasiness. He himself driven the truck on the right side and got down and went to take treatment in the Hospital. Therefore, one has to draw inference before the deceased applying his mind for the purpose of parking the truck on the right side on account of stress and strain only. In fact, one must appreciate the deceased had applied his mind to park the truck on road side and got down, had he proceeded it would have been disastrous.” 11. Learned counsel for the appellants/claimants also submitted that since the cause of death cannot be ascertained on account of the post-mortem report not available, and thus, in such a case of non-consideration of evidence, the matter may be remanded for fresh consideration. He also placed reliance upon the judgment passed by the Hon’ble Apex Court in the case of Dredging Corporation of India Ltd. v. P.K. Bhattacherjee reported in 2013 DNJ (SC) 900. He also placed reliance upon the judgment passed by the Hon’ble Apex Court in the case of Dredging Corporation of India Ltd. v. P.K. Bhattacherjee reported in 2013 DNJ (SC) 900. The relevant paras of the judgment are reproduced as under: “…..The Employee’s Compensation Act is intended for the benefit of an employee, and quintessentially is a no-fault liability. It appears to us that both the Courts below have misdirected themselves in law in that because the illness of the employee was discovered while he was in actual service it has led them to the conclusion that compensation is payable under Section 3 of the Employee’s Compensation Act, 1923. We are also mindful of the fact that the Commissioner, being the Court of first instance, has held that he met with an accident on 27.12.1999, and that he suffered 100% loss of earning capacity as he was permanently unfit for sea-service. It ought to have distinguished between the discovery of the health condition while in service and the health condition having occurred during service. So far as the arguments of the Company are concerned, especially in the Appeals filed assailing the decision of the Commissioner, the emphasis has been that the ischemic heart condition of the employee discovered while he was actually serving with the Appellant, was not related to his service. The learned Commissioner ought to have satisfied himself fully on this aspect of the case rather than come to a conclusion that an accident had occurred, for which the evidence is extremely scanty. Faced with this predicament, Mr. Rana Mukherjee, learned counsel appearing for the employee has endeavoured to establish that an ischemic heart condition can result from job stress which was continuously encountered by the employee. 3. For these reasons, it appears to us to be expedient and just to set aside the impugned order as well as the order of the Commissioner and remand the matter back to the Court of the Commissioner for fresh adjudication de novo. It would then be advisable that a specific issue be struck as to whether the employee’s ischemic heart condition developed as a consequence of any stress or strain of his employment with the Appellant-company. There can be no gainsaying that the Employee’s Compensation Act, 1923 is a beneficial legislation requiring some play at the joints so far as considering a disabled employee’s claim is concerned. There can be no gainsaying that the Employee’s Compensation Act, 1923 is a beneficial legislation requiring some play at the joints so far as considering a disabled employee’s claim is concerned. In these circumstances, parties shall appear before the Commissioner, Workmen’s Compensation (1st Court) West Bengal or its successor Court, as the case may be, on 11.11.2013.” 12. Learned counsel for the appellants/claimants also placed reliance upon the judgment passed by Hon’ble Apex Court in the case of Maman Singh and Anr. v. United India Insurance Co. Ltd. reported in 2022 ACJ 730 wherein the Hon’ble Apex Court has observed that the stress and strain arising during the course of employment could be one of the factors that may lead to the presumption of accidental injury. 13. Learned counsel for the appellants/claimants also submitted that there has to be a nexus between the accident and the employment in order to apply the doctrine of notional extension and that, the phrase “course of employment” cannot be read in a narrow manner. He relied upon the judgment passed by the Hon’ble Apex Court in the case of Leela Bai & Anr. v. Seema Chouhan & Anr. reported in 2019 (1) R.A.R. 156 (SC). The relevant paras are reproduced as under: “9. In the facts of the present case and the nature of evidence, there was a clear nexus between the accident and the employment to apply the doctrine of "notional extension" of the employment considered in Agnes (supra) as follows: “It is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all time this theory of notional extension.”” 14. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all time this theory of notional extension.”” 14. Per contra, learned counsel for the respondent-company submitted that the statement of A.W. 1 and 2, wife and the father of the deceased respectively, cannot be taken into consideration because they are interested witnesses in the present case. 15. Learned counsel for the respondent-company further submitted that there is no record of the age or the income of the deceased, nor any evidence has been produced which states the reason of death of the deceased, Late Samant Singh on 05.11.2005. He also submitted that as per the documents produced, the deceased died a natural death and not arising out of the course of his employment, which can be seen from the statement of the driver, who was with the deceased at the time of the said incident, i.e. A.W. 3, Kalu Singh. He also submitted that A.W. 3, in his statement, clearly accepts the fact that the deceased, Samant Singh was already ill when he sat in the truck from Nathadwara. 16. Learned counsel for the respondent-company further submitted that the deceased did not possess a valid and effective driving license while he was driving the said vehicle and therefore, the insurance company is not liable to compensate for his death. 17. Learned counsel for the respondent-company also placed reliance upon the judgment passed by the Hon’ble Apex Court in the case of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali reported in AIR 2007 SC 248 , wherein it has been categorically observed that merely due to the fact the death has occurred during the course of employment does not amount to accident and there has to be crucial link between the casual connections of employment with death. 18. Heard learned counsel for the parties, perused material available on record and judgments cited at the Bar. 19. The appellant, in the instant appeal, has suggested the following questions of law, which reads as under: -“(I). Whether Samant Singh died during the course of employment? (II). Whether the learned tribunal have committed an error in misreading the evidence of A.W. 3 relating to the issue No.1? (III). 19. The appellant, in the instant appeal, has suggested the following questions of law, which reads as under: -“(I). Whether Samant Singh died during the course of employment? (II). Whether the learned tribunal have committed an error in misreading the evidence of A.W. 3 relating to the issue No.1? (III). Whether an adverse inference should be drawn against the respondent No.1 to the effect that Samant Singh died during the course of employment?” 20. Insofar as the first question of law as suggested by the appellant in the present appeal is concerned, this Court finds that the said question of law has already been adjudicated by the Commissioner and while deciding the said issue, the Commissioner held that the burden to prove the said issue was upon the appellants/claimants themselves, which they failed to prove by leading cogent and convincing evidence. The Commissioner while considering FIR (Ex.6) has observed that the deceased was suffering from fever when he left his place. The relevant extract of the finding arrived at by the Commissioner reads under: This Court finds that the Commissioner has rightly taken into account the contents of the FIR as well as the depostion of AW.3, Kalu Singh who was the prime-witness of the said incident wherein it has been clearly stated that the deceased, Mr. Samant Singh was already suffering from a prior ailment, i.e. fever, even before sitting on the driving wheel. Thus, this Court concurrs with the finding given by the Commissioner on the issue no. 1 that since the deceased, Mr. Samant Singh was already suffering from an ailment, i.e. fever prior to starting his duty and therefore, the death cannot be said to have ocurred during the course of employment or arising out of the course of employment. 21. Subsequently, the questions No.2 and 3 suggested by the appellants/claimants in the instant appeal, are questions of fact, wherein the Court will have to re-appreciate the findings given by the Commissioner, which in the instant appeal cannot be gone into, inasmuch as per proviso to Section 30 of the Act of 1923, which inter-alia provides that no appeal can lie against any order unless a substantial question of law is involved. Section 30 of the Act of 1923 reads as under: “Section 30. Section 30 of the Act of 1923 reads as under: “Section 30. -(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-- (a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment lump sum; (aa) 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 *[employee], 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 ten thousand rupees or such higher amount as the Central Government may, by notification in the Official Gazette, specify: 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. (2) 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.” In the light of express provisions mentioned in the Act of 1923, wherein the proviso to Section 30 clearly limits the scope of jurisdiction for an appeal only to the substantial questions of law, this Court finds that the appeal is not maintainable under the said proviso. 22. 22. This Court also finds that in the case of C. Manjamma & Anr. v. The Divisional Manager, The New India Assurance Co. Ltd. : 2022 (6) SCC 206 , the Hon’ble Apex Court has followed the decision rendered in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali & Anr. : 2007 (11) SCC 668 and held that question of law would arise when the same is not dependent on examination of evidence and which does not require any fresh investigation of fact. It was also observed that a question of law would arise, when the finding is perverse or when no legal evidence is adduced to establish the jurisdictional facts and, therefore, in the present case this Court finds no substantial question of law for consideration. The relevant paragraph of the decision of the Hon’ble Apex Court in the case of C. Manjamma (supra) reads as under: “12. Even in paragraph 42 of the decision in Shakuntala Chandrakant Shreshti (supra), this Court has made it clear that a question of law would arise when the same is not dependent on examination of evidence and which may not require any fresh investigation of fact. A question of law would arise, of course, when the finding is perverse or when no legal evidence is adduced to establish the jurisdictional facts. The observations made by the High Court in the present case in paragraph 21 appear to be rather of assumptive nature than of specific conclusion on perversity. In other words, the view as taken by the Commissioner was the one based on the material placed on record, which basically established that the deceased was indeed employed as a driver on the vehicle; he was 30 years of age; and he died while on duty and his demise due to cardiac arrest was attributable to his job of driver. There had not been shown any other background aspect or any other clinching feature because of which death of the workman, a 30-year-old person, could be attributed to any other cause. There had not been shown any other background aspect or any other clinching feature because of which death of the workman, a 30-year-old person, could be attributed to any other cause. That being the position, the view taken by the Commissioner had been a possible view of the matter in the given set of facts and circumstances; and there was no reason for the High Court to interfere with the same, particularly when the case did not involve any substantial question of law within the meaning of Section 30 of Employees Compensation Act, 1933.” The relevant discussion made by the Hon’ble Apex Court in the case of Shakuntala Chandrakant Shreshti (supra) reads as under: “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. We are not oblivious of the proposition of law as was stated by Frankfurter, J. in J.J.O’ Leary, Dy. Commnr., Fourteenth Compensation Distt. v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that the court will not disturb a finding of an Administrative Tribunal when two views are possible and only because the appellate court can take a contrary view. But in the instant case, the Commissioner did not go into the jurisdictional facts not arrived at any finding based on any legal evidence in regard to the causal connection between the employment and the death.” Taking into account the above-mentioned judgments, this Court finds that the questions suggested by the appellants/claimants in the present appeal are not involving substantial questions of law and therefore, require no indulgence from this Court. 23. This Court also finds that the High Court has limited jurisdiction under Section 30 of the Act of 1923 to grant indulgence in an appeal against an order passed by the Commissioner, Workmen Compensation Act, to the extent of there being a substantial question of law involved. This court also takes into consideration the judgment passed by the Hon’ble Apex Court in the case of Golla Rajanna Etc. Etc. v. The Divisional Manager and Another, Etc. : CIVIL APPEAL NOS. This court also takes into consideration the judgment passed by the Hon’ble Apex Court in the case of Golla Rajanna Etc. Etc. v. The Divisional Manager and Another, Etc. : CIVIL APPEAL NOS. 11114-11119 OF 2016 decided on 23.11.2016, wherein it has been held under: “Under the scheme of the Act, the Workmen’s Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.” 24. Therefore, this Court observes that the contention raised by counsel for the appellant regarding perverse finding given by the Commissioner is not acceptable because the Commissioner considering the documentary and oral evidence available on record like FIR as well as the statement of AW.3, Kalu Singh, who is a prime-witness to the said incident, has given a finding that the deceased, Samant Singh died due the prior ailment, which he was suffering even before sitting on the driving wheel. Thus, the findings arrived at by the Commissioner are correct finding based on evidence available on record. Furthermore, inasmuch as Section 30 of the Act of 1923 stipulates that an appeal against an order of the Commissioner, can lie only when a substantial question of law is raised, which is not the case before this Court, and thus, this Court deems it fit not to grant indulgence in the present appeal. 25. Accordingly and in view of above discussion, this Court finds no force in the instant appeal, the same is, therefore, dismissed. No costs.