Dismissed

Royal Sundaram Alliance Insurance Co. Ltd. v. Smt. Shakuntla and 2 Ors.

Allahabad HC4 Dec 2019FAFO/2011/2014

Case brief

AI extract

What is this about?

This appeal challenged an award granting compensation to dependents of a deceased cleaner/conductor who died in a bicycle accident while en route to fetch a vehicle mechanic on the employer's instruction. The High Court analyzed the definition of 'course of employment' and procedural objections, ultimately dismissing the appeal as it found the lower court's decision based on reasonable probabiliti

What did the court decide?

First appeal from order is dismissed; no substantial question of law is involved.

Royal Sundaram Alliance Insurance Co. Ltd… — Pension and Retirement Benefits | Allahabad HC (2019)

RESERVED

AFR

Court No. - 55

Case :- FIRST APPEAL FROM ORDER No. - 2011 of 2014

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Appellant :- Royal Sundaram Alliance Insurance Co. Ltd. Respondent :- Smt. Shakuntla And 2 Ors. Counsel for Appellant :- S.K.Mehrotra, Archit Mehrotra Counsel for Respondent :- B.N. Pathak, Smt. Kiran Gupta

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Hon'ble Pradeep Kumar Srivastava,J.

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1. Heard Shri. S.K. Mehrotra, learned counsel for the appellant and Shri Pawan Giri, Advocate holding brief of Shri B.N. Pathak, learned counsel for the respondent.

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2. This appeal has been filed against judgement and award dated 31.05.2014 passed by Workmen's Compensation Commissioner/ Assistant Labour Commissioner, Bulandshahr in E.C.A Case No. 24 of 2011 (Smt. Shakuntla Devi and another Vs. Veerpal Singh and another) by which the learned Commissioner has compensation of Rs. 4,42,740/- along-with 12% simple interest from the date of filing of the petition.

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3. Before the learned Commissioner an application was given under Section ¾ Workmen Compensation Act (Employee Compensation Act), 1923, stating that the son of the claimant Naresh Kumar Sharma, aged about 22 years was employed as conductor/cleaner on TATA LPT No. U.P 75-A/4115 and he was given a salary of Rs. 4,000/- per month with Rs. 50 per day for diet. The accident took place on 24.01.2009, when as per direction of the vehicle owner the deceased after loading vegetables on the said vehicle was going to Noida with the driver Bhanu Prakash. The vehicle reached in between Kasna-Tuglakpur, some noise started coming from the gear box of the vehicle whereupon driver Bhanu Prakash stopped the vehicle on the road side and sought direction from the vehicle owner on telephone and on his direction sent the

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deceased to village Tuglakpur to bring mechanic. The deceased took lift on a motor-cycle and while going to Tuglakpur, when the motorcycle reached close to Pari Chauk, some unknown motor-cycle dashed on the motor-cycle and the motor-cycle slipped on the road side and the deceased sustained serious injuries on his head. He was taken to Kailash Hospital, Noida. His condition was serious and when the family members of the deceased reached, he was admitted to Sharda Hospital, Noida and on 24.01.2009 in the midnight the head of the deceased was put to serious operation and during treatment on 01.02.2009, he died in the hospital. FIR was lodged, inquest was prepared and the other police papers were submitted with the application. The deceased died during the course of employment of the vehicle owner and the said vehicle was insured at the time of accident, therefore, this petition has been filed.

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4. Defendant no. 1 filed written statement and admitted the contents of para no. 1 to 4 and denied the contents of para no. 6 to 7. He admitted that the deceased was in his employment and on his direction he and the driver along-with the said vehicle went to Sikandraband and after loading vegetables they were going to Noida, when the accident took place and the deceased died because of injuries sustained in the accident and he was in the course of employment. He was paid Rs. 4,000/- a month. The RC, Insurance, fitness and driving license were valid at the time of accident. If the claimant is entitled for compensation, the responsibility to pay compensation is on the Insurance Company.

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5. Insurance Company filed written statement denying the allegations of the petition and also denying the employment of the deceased, his age and his salary. The Insurance Company has further stated in order to obtain compensation in a planned way, the deceased have been shown to be conductor/cleaner in the said vehicle. The accident has not been caused by the said vehicle but by some

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unknown motor-cycle and therefore, the petition is liable to be dismissed.

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6. After taking evidence and hearing both the sides the learned Commissioner has passed the impugned award and the same has been challenged by the appellant.

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7. 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. Substantial questions of law was raised on the basis of which it was requested that the impugned award is liable to be set aside.

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8. Vide order dated 08.07.2014 of this Court the appeal has been admitted on the following substantial questions of law:

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Whether in the absence of any evidence in regard to employment of deceased as Cleaner on truck in question, the relationship of employer and employee between the owner of truck in question and deceased could be assumed?

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Whether it was mandatory on the part of Commissioner to have first frame the issues before deciding the claim filed by respondentclaimant?

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Whether in the absence of any evidence in regard to relationship of employer and employee the claim petition was entertain-able before the Workmen's Compensation Commissioner?

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9. Heard the learned counsel for the both the side and perused the lower court record.

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10. 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:

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“(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 -

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(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 subdivisional office of a railway and not employed in any such capacity as is specified in Schedule II or

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(ia)(a) a master seaman or other member of the crew of a ship.

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(b) a captain or other member of the crew of an aircraft

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(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;

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(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.”

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11. Item XXV of Schedule II includes driver within the definition of the employee and it has been admitted by the vehicle owner that the deceased was employed by him as conductor/cleaner on the said vehicle Tata on payment of Rs. 4000/- as monthly wages. Section 3 of the Act deals with the Employer's liability for compensation and provides as below:

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(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

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Chapter :

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Provided that the employer shall not be so liable -

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(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;

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(b) in respect of any injury not resulting in death or permanent total disablement caused by an accident which is directly attributable to -

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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 :

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Provided that if it proved -

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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

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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.

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(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.

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(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.

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Save as provided by sub-sections (2), (2A) and (3) no

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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

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(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.

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12. 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.

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13. 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:

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“The words in the course of employment mean in the course of the work which the workman is employed to do

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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. 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.”

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14. In Talcher Thermal Station v Bijuli Naik, 76 (1993) CLT 699 (Orrisa) , the Court has observed:

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“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.”

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The Court further laid down following principles to determine the course of employment and arising out of employment:

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“(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

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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.”

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15. In Shakuntala Chandrakant Shreshti v Prabhakar Maruti

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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:

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“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.

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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.

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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.”

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16. Section 30 of the Act provides for appeal against order of Commissioner. It lays down as follows:

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“(1) An appeal shall lie to the High Court from the following orders of a Commissioner namely :-

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(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;

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(a) an order awarding interest or penalty under section 4A;

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(b) an order refusing to allow redemption of a halfmonthly payment;

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(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;

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(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of subsection (2) of section 12; or

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(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 :

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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 :

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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 :

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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.

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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.”

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17. 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:

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“A question of law would arise when the same is not

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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.”

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18. 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 and in view of admission of the employer, the 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 appellant has referred the judgement in Employees' State Insurance Corporation v Francis De Costa, 1997 (1) TAC 646 (SC) and has submitted that the employee cannot succeed in a claim based on employment injury unless the claimant establishes that the injury or death was caused in the course of employment and had its origin in the employment. In this referred case, the injury was sustained while the employee was on his way to his factory where he was employed from his home and the accident took place one kilometre away from his factory. Therefore. It was held that the said injury was not caused by an accident arising out of his employment. The facts of this instant case is seemingly different as the nature of the employment of the deceased was not confined to a premises and the very nature of his employment was based on a vehicle movement on the road as cleaner/conductor.

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19. 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.

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20. Clearly, it was found on the basis of evidence on record that as per direction of the employer, the deceased was going on the said vehicle after loading vegetables from Sikandrabad to Noida at the time of accident when some noise started coming from the gear box of the vehicle which was got broken whereupon driver Bhanu Prakash stopped the vehicle on the road side and sought direction from the vehicle owner on telephone and on his direction sent the deceased to village Tuglakpur to bring mechanic. The deceased took lift on a motor-cycle and while going to Tuglakpur, when the motor-cycle reached close to Pari Chauk, some unknown motor-cycle dashed on the motor-cycle and the motor-cycle slipped on the road side and the deceased sustained serious injuries on his head. During treatment, he died. Despite several opportunities given, the Insurance Company did not give any evidence to rebut this evidence.

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21. The fact that the deceased was not inside the vehicle on which he was working as cleaner/conductor will not make any difference as the deceased would certainly continue to be in course of employment as he went to bring mechanic on the instruction of driver so that vehicle could be repaired. Unless he returned after completing the assigned work for which repair of the vehicle was necessary, he was

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in the course of employment. There was no occasion for him to take lift on the motor-cycle which was passing through nor he was to be at the place of occurrence unless he was asked by the driver to bring mechanic. When a vehicle gets out of order, it is the responsibility of the employee to get the same repaired and effort to bring mechanic is very much covered in the employment condition particularly when the driver had sought telephonic instruction from the owner.

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22 . The next question raised from the side of the appellant is that there was no FIR in respect of of incident. In the impugned judgement, the learned Commissioner has mentioned that photo-estate copy of GD and inquest report was on record and from the perusal thereof, it is clear that a report was given in the PS Kasana and the police took the dead body in possession and inquest report was prepared. For the purpose of claim petition, I find it enough as registration of offence and FIR is the responsibility of the police. It has been found sufficient by the learned Commissioner and the Insurance Company, by any evidence, has not been able to show that no such accident took place. It is also pertinent to mention that to succeed under Act, it is not necessary to show and prove negligence. The driver has been examined to prove the event and to prove that when the accident took place he was involved in a work which was in the course of his employment. No evidence was given by the Insurance Company and even a surveyor was not deputed to bring facts as alleged to contradict the version of claim. As such, I find no force in the argument.

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23 . It has been also argued from the side of appellant that the learned Commissioner disposed of the claim without framing issues and this error leads to illegality. A support from judgement in New India Assurance Company v Braja Kishore Sutar, 1992 ACJ 715 has been sought, but, in the referred judgement, the law has been clarified that not framing of issues by Commissioner will not vitiate

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the decision unless it caused prejudice to the affected party. In Nedupuri v Sampati, AIR 1963 SC 684 , it has been held that nonframing of issues is not regarded as fatal where parties had gone to trial fully knowing the rival case and had led evidence in support of their contentions. In this case, the learned Commissioner has discussed all the pleas raised by the appellant and opportunities were given to adduce evidence. Therefore, no prejudice has been caused to the appellant by non-framing of issues and this argument has no force.

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24. 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 cleaner/conductor on payment of 4000/- rupees monthly wages. The learned Commissioner has rightly calculated the compensation after applying multiplier and making due deduction against personal expences. 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.

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25. Accordingly, the first appeal from order is dismissed.

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Date- 04.12.2019. PS

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(Justice Pradeep Kumar Srivastava)

Royal Sundaram Alliance Insurance Co. Ltd. v. Smt. Shakuntla and 2 Ors.

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Royal Sundaram Alliance Insurance Co. Ltd. v. Smt. Shakuntla and 2 Ors.

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