Dismissed

National Insurance Company v. Halya Devi and Ors.

Himachal Pradesh HC11 Mar 2022FAO/1/2022

Case brief

AI extract

What is this about?

The High Court dismissed the Insurance Company's appeal against a compensation award for an employee's death. The Court held that Section 3 of the Employees Compensation Act excludes negligence defenses only for non-death injuries; upon death, the employer/insurer remains liable even if the accident resulted from the employee's negligence or breach of policy. The appeal was denied at the threshold

What did the court decide?

The appeal was dismissed at the threshold without being admitted; the compensation award of Rs. 7,36,680/- in favor of the claimants was upheld.

National Insurance Company Vs Halya Devi… — Writ and Judicial Review | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 11^th DAY OF MARCH, 2022

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BEFORE

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HON’BLE MR. JUSTICE TARLOK SINGH CHAUHAN FIRST APPEAL AGAINST ORDER NO.

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1 of 2022

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Between:

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NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE AT HIMLAND HOTEL, CIRCULAR ROAD,SHIMLA, THROUGH ITS ADMINISTRATIVE OFFICER (LEGAL), SHRI VIVEK SUMAN

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…APPELLANT

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(BY MS. DEVYANI SHARMA, ADVOCATE)

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AND

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1. HALYA DEVI, WIFE OF LATE SHRI KASHMIR SINGH SON OF NAROTAM RAM,

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2. KOMAL SON OF LATE SHRI KASHMIR SINGH (MINOR) AGED ABOUT 11 YEARS.

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3. MISS SAPNA KUMARI DAUGHTER OFLATE SHRI KASHMIR SINGH (MINOR) AGED ABOUT 13 YEARS

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APPELLANTS NO. 2 AND 3 THROUGH THEIR MOTHER AND NATURAL GUARDIAN SMT.HALYA DEVI, RESPONDENT NO. 1.

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4. SMT. KAUSHALYA WIDOW OF LATE SHRI NAROTAM RAM AND MOTHER OF DECEASED KASHMIR SINGH,

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ALL RESIDENTS OF VILLAGE SADEHRA, POST OFFICE SIDHYANI, TEHSIL BALH, DISTRICT MANDI, HIMACHAL PRADESH.

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RESPONDENTS/CLAIMANTS

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5. HARI CHAND DUTT SON OF SHRI KANSHI RAM, RESIDENT OF VILLAGE AND POST OFFICE NER CHOWK, TEHSIL BALH, DISTRICT MANDI, HIMACHAL PRADESH (OWNER OF Vehicle No. HP31B6339)

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This petition coming on for admission this day, this

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Court passed the following:

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J U D G M E N T

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Since the sole question as to whether under the provisions of Employees Compensation Act, the Insurance Company can escape its liability to pay compensation amount, merely because the driver of the vehicle was found to have consumed alcohol at the time of accident, is no longer resintegra, so far as this Court is concerned. The appeal does not desrves admission, therefore, the same is being decided at the threshold.

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Brief facts of the case are that the claimants/respondents No. 1 to 4 are the widow, minor children and the mother of the deceased Kashmir Singh. They filed the petition under Section 22 of the Employees Compensation Act on account of death of Shri Kashmir Singh in an accident on 18.6.2017. It is averred that Kashmir Singh was employed by respondent No. 5 as a driver in his Truck bearing registration No. HP-31B-6339 and the same met with an accident on the aforesaid date at Khera Chak. During the

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course of employment of Kashmir Singh, monthly wages are claimed to be Rs. 8000/- and diet money of Rs. 250/- per day were also claimed.

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The claim petition was contested by respondent No. 5- owner, wherein he had admitted most of the averments made in the petition. However, the Insurance Company-appellant contested the claim petition on the ground that there was no relationship of the employee and the employer between it and respondent No. 5. The Insurance Company-appellant has also claimed that there was no casual connection between the death of the accused and the alleged employment and that the accident had not occurred out of or in the course of employment. It is further averred that the truck was being driven at that time in contravention to the terms and conditions of the Insurance policy, as such the appellant was

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not liable to pay compensation amount to the claimants or indemnify the insured in the present case.

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Learned Commissioner after framing issues and recording evidence, awarded a sum of Rs. 7,36,680/- to the claimants as compensation alongwith interest @ 12% per

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annum and the same was directed to be paid by the appellant-

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Insurance company, constraining it to file the instant appeal.

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As observed above, the only ground taken by the

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Insurance-company is that it is not liable to indemnify the owner because there was breach of policy, as the driver,

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Kashmir Singh, at the time of accident had consumed Alcohol.

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Section 3 of the Employees Compensation Act,1923 reads as

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under:

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3. Employer' s liability for compensation.-

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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 Chapter: 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 exceeding³ three] days;

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(b) in respect of any⁴ injury, not resulting in death, caused by] an accident which is directly attributable to--

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(i) the workman having been at the time thereof under the influence of drink or drugs, or

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(ii) 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

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(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.

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From the plain reading of the aforesaid extracted

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portion of this Section, it becomes clear that the employer will

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not be liable to pay compensation in case of injuries other

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than those resulting in death of an employee, though arising

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out of and in the course of his employment where the accident is directly attributable to the willful removal or disregard by the employment of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of the employee. It is thus evident that the compensation is not admissible in case of injuries of the employees, who had themselves been negligent or because of the negligence the accident occurs, even if such an accident arise out of and in the course of employment. Section 3(1)(b) (iii) however is not applicable to the situation where the accident involving negligence of the employee results in his death.

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Taking into consideration the peculiar facts and circumstances of the case, I am fortified by the judgment rendered by Rajasthan High Court in judgment rendered in AIR 1970 Rajasthan 111 , titled R.B. Moondra and Co. v. Mst. Bhanwari and another . Paragraph-8 whereof runs as under:

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partial disablement of the workman for a period exceeding three days and except in the case where injury results in death, the accident is directly attributable to the causes mentioned in Sub-clauses (i), (ii) and (iii) of proviso (b). In order to claim compensation the employee has to show not only that at the time of the accident he was in fact employed on duties of his employment, but further that the immediate act which led to the accident was within the sphere of his duties and not foreign to them. In case of death of an employee due to accident if it has arisen out of and in the course of his employment it is no defence to plead that there was wilful disobedience of any order or rule expressly given or framed for the purpose of securing the safety of the workman. Clause (b) of the proviso to Sub-section 1 (1) of Section 3 is limited to those cases where injury has not resulted in death. This is quite evident from the language of the section itself and if any authority is needed I may refer to thomas v. Ocean Coal Co. Ltd. 1932 All ER 458 where on the following facts that the workman was a hitcher in a coal mine, his duties being, inter alia, to help in getting full trams into and empty trams out of the cages. His proper place of work was on the loading, or full tram side of the pit bottom, but he was expected to help, in cases of emergency, in dealing with empty trams on the other side of the pit. On April 17, 1931, he crossed the pit bottom to see to the working of empty trams and then ran back across the shaft bottom towards his proper working side to be ready to receive a cage when it landed. So to cross the shaft bottom, was expressly prohibited by a regulation made under the Coal Mines Act, 1911. Before the workman could get fully across the shaft bottom the descending cage struck and killed him. On a claim for compensation by his widow, it was held on the construction of English Workmen's Compensation Act of 1925 that:

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conditions in the subsection as to the act being done by the workman for the purposes of and in connection with his employer's trade or business' were fulfilled; in the present case the accident certainly arose out of the workman's employment and it also arose in the course of that employment since he had been engaged to work on both sides of the pit and desired to expedite that work; his contravention of the regulation did not put him outside the sphere of the employment, and so his act was done for the purposes of and in connection with the employers' business; and, therefore, his widow was entitled to compensation. "

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It is thus evidently clear that In case of death of an employee due to an accident arising out of and in the course of his employment, his own negligence will not come in the way of grant of compensation to the claimants. In other words, the restrictions placed in Section 3 of the Act will not be applicable in case of death of employee.

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A similar view has been taken by a coordinate Bench of this Court in “Parkash Chand and another versus Sanjeev Kumar and others”. The judgment (supra) has been reproduced as under in its entirety:

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“The petitioners, in the instant appeal, are aggrieved against the dismissal of their claim petition by the learned Commissioner Employee’s Compensation, Barsar, District Hamirpur vide order dated 28.3.2012.

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Parties hereinafter are referred to as they were before the learned Commissioner.

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2. The claimants filed a petition under Section 22 of the Employee Compensation Act. They pleaded that Naresh Kumar was their son. He was working as a Conductor on bus No. HP-21-5530. The bus was owned by respondent No. 2-A (Ramesh

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Chand). Naresh Kumar was employed by respondent No. 2-A as conductor on the bus and was being paid a monthly salary of Rs. 2500/- along with daily diet money of Rs. 100/- etc. In the course of his employment with respondent No. 2-A, Naresh Kumar sustained grievous burn injuries on 1.8.2005. After the accident, he was brought to Zonal Hospital, Hamirpur and further referred to Indira Gandhi Medical College, Shimla, where he remained under treatment till 7.11.2005 when he finally succumbed to his injuries. Compensation of Rupees five lacs or more was prayed by the parents of deceased Naresh Kumar.

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3. On considering the entire material available on record, learned Commissioner held that Naresh Kumar died in the course of his employment as Conductor on bus bearing No. HP-21-5530. Learned Commissioner, however, dismissed the claim petition on the ground that the accident causing Naresh Kumar’s death had occurred because of deceased’s own negligence. It will be apt to extract the relevant part of the finding of learned Commissioner in this regard:

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“In view of the Provisions contained in proviso (b) (iii) to Section 3 of the Act ibid, the employer cannot be held liable to compensate for the personal injuries/death of the deceased, which injury/death occurs due to willful disregard to the safety precautions or is the result of his (deceased) own negligence. Hence, in view of the fact that the death of deceased occurred in the accident, which had resulted due to his own negligence, I am of the considered view that the petitioners have no cause of action to file the present petition.”

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4. In the instant appeal filed by the claimants against dismissal of their claim petition, the substantial question of law, which has been urged, is framed as under:

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Whether under the provisions of Section 3(1) proviso (b)(iii) of the Employee’s Compensation Act, the compensation is not payable in case of death of an employee as a result of an accident arising out of or in the course of his employment but due to his own

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willful disregard to the safety precautions or because of his own negligence?

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5. I have heard learned counsel for the parties on the above substantial question of law. It will be appropriate to first extract relevant portion of Section 3 of the Employee’s Compensation Act:

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“3. Employer's liability for compensation.- (1) If personal injury is caused to a employee 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:

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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 employee 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— (i) the employee having been at the time thereof under the influence of drink or drugs, or

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(ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or

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(iii) the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee.”

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From a plain reading of the above extracted portion of the Section, it becomes clear that the employer will not be liable to pay compensation in cases of injuries other than those resulting in death of an employee though arising out of and in the course of his employment where the accident is directly attributable to the willful removal or disregard by the employee of any safeguard or other device which he knew to have been provided for the purpose of securing the safety of employees. It is thus evident that compensation is not admissible in case of injuries to the employees who had themselves been negligent or because of

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whose negligence the accident occurs even if such an accident arises out of and in the course of his employment. Section 3(1) proviso (b)(iii) however is not applicable to situations where accident involving negligence of the employee results in his death. In this regard, it will be apt to refer to a judgment rendered in AIR 1970 Rajasthan 111 , titled R.B. Moondra and Co. v. Mst. Bhanwari and another . Paragraph-8 whereof runs as under:

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“(8.) It would appear from the above provision that if personal injury is caused to a workman by accident arising out of and in the course of his employment, the employer shall be liable to pay compensation except where the injury does not result in the total or partial disablement of the workman for a period exceeding three days and except in the case where injury results in death, the accident is directly attributable to the causes mentioned in Subclauses (i), (ii) and (iii) of proviso (b). In order to claim compensation the employee has to show not only that at the time of the accident he was in fact employed on duties of his employment, but further that the immediate act which led to the accident was within the sphere of his duties and not foreign to them. In case of death of an employee due to accident if it has arisen out of and in the course of his employment it is no defence to plead that there was wilful disobedience of any order or rule expressly given or framed for the purpose of securing the safety of the workman. Clause (b) of the proviso to Sub-section 1 (1) of Section 3 is limited to those cases where injury has not resulted in death. This is quite evident from the language of the section itself and if any authority is needed I may refer to thomas v. Ocean Coal Co. Ltd. 1932 All ER 458 where on the following facts that the workman was a hitcher in a coal mine, his duties being, inter alia, to help in getting full trams into and empty trams out of the cages. His proper place of work was on the loading, or full tram side of the pit bottom, but he was expected to help, in cases of emergency, in dealing with empty trams on the other side of the pit. On April 17, 1931, he crossed the pit bottom to see to the working of empty trams and then ran back across the shaft bottom towards his proper working side to be ready to receive a cage when it landed. So to cross the shaft bottom, was expressly prohibited by a regulation made under the Coal Mines Act, 1911. Before the workman could get fully across the shaft bottom the descending cage struck and killed him. On a claim for compensation by his widow, it was held on the construction of English Workmen's Compensation Act of 1925 that:

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"in considering whether the case came within Section 1 (2) of the workmen's Compensation Act, 1925, it must first be ascertained, disregarding the prohibition contained in the regulation whether the workman's death was due to an accident arising out of and in the course of his employment; if it did, the effect of the prohibition in removing the accident from that category could be annulled if the later conditions in the subsection as to the act being done by the workman for the purposes of and in connection with his employer's trade or business' were fulfilled; in the present case the accident certainly arose out of the workman's employment and it also arose in the course of that employment since he had been engaged to work on both sides of the pit and desired to expedite that work; his contravention of the regulation did not put him outside the sphere of the employment, and so his act was done for the purposes of and in connection with the employers' business; and, therefore, his widow was entitled to compensation. "

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In case of death of an employee due to an accident arising out of and in the course of his employment, his negligence will not come in the way of grant of compensation to the claimants. The restrictions placed in Section 3 of the Act will not be applicable in case of death of employee.

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Learned Commissioner has held the employer not liable to compensate for the death of his employee Naresh Kumar due to the finding returned by him in the award about accident’s taking place on account of employee’s willful disregard to safety precautions/his negligence. The conclusion drawn by the learned Commissioner is not in consonance with the Scheme of Section 3(1)proviso (b)(iii) of the Act. Hence, this appeal is allowed. The impugned judgment dated 28.3.2012 passed in Petition No. 03/2006, RBT No. 7/2011 is set aside. The matter is remanded for fresh decision to the learned Employee’s Compensation, Barsar, District Hamirpur.

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The parties through their learned counsel are directed to appear before learned Commissioner on 30.9.2021. Record be returned forthwith. Considering the fact that the accident in question is of the year 2005, it is hoped and expected that learned Commissioner shall make all endeavours for deciding the matter, as expeditiously as possible, preferably within six months i.e. by 31.03.2022.

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In view of the aforesaid discussions and for the

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reasons stated above, I find no merit in the instant appeal and the same is accordingly dismissed. All the pending application(s),if any, are also disposed of.

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(Tarlok Singh Chauhan) Judge

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March 11, 2022 Kalpana

National Insurance Company v. Halya Devi and Ors.

Case brief

What is this about?

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National Insurance Company v. Halya Devi and Ors.

Case brief

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