Claim for compensation under the Workmen's Compensation Act after a driver died of cardio respiratory failure during night shift duty at a hydroelectric project. The High Court upheld the Commissioner's dismissal, holding the claimants failed to prove a causal connection between employment and death.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. ( 2024:HHC:5028 )
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
FAO No. 94 of 2015 Reserved on: 05.07.2024 Date of decision: 12.07.2024
________________________________________________ Rekha Devi & others. …..Appellants. Versus J.P. Associates Hydro Electric Project & another. ……Respondents. _______________________________________________ Coram_ The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? Yes.
________________________________________________ For the appellants: Mr. Subhash Sharma, Advocate. For respondent No. 1: Mr. Anand Sharma, Senior Advocate, with Mr. Karan Sharma, Advocate. For respondent No. 2: Dr. Lalit Sharma, Advocate, for respondent No. 2.
Sushil Kukreja, Judge.
The present appeal is maintained by the appellants/petitioners/claimants (hereinafter referred to as “the petitioners”), against the order dated 27.11.2014, passed by Commissioner Employee’s Compensation, Court No. 1, Dehra, District Kangra, H.P., in W.C. Act No. 20 of 2011, whereby the petition filed by the petitioners for grant of compensation under the Workmen Compensation Act (for
1 Whether reporters of Local Papers may be allowed to see the judgment?
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short “the Act”), was dismissed.
at height and there was deficiency of oxygen, especially inside the tunnels. Respondent No. 1 used to take work for 12 hours continuously inside the tunnels and the work was stressful. It was further averred by the petitioners that the deceased and other employees were not allowed to go outside the complex and the project was operating in the area of Karcham Wangtoo, Kinnaur District, H.P.. On 16.03.2009 the deceased was on night shift duty in a service van and he started his shift at 08:00 p.m. The deceased was continuously in the tunnels and during midnight the deceased complained to the supervisor/in-charge of
Neutral Citation No. ( 2024:HHC:5028 )
3 respondent No. 1 that he is unable to breath, where two blasts had already been done. However, the deceased was not allowed to go out for rest. There was dust, fumes and no proper air ventilators in the tunnels. The deceased also complained to one of the drivers, who was working in another vehicle, but he could not help him. When the condition of the deceased deteriorated, he returned to the camp and when he was resting, he died due to cardio respiratory failure. The matter was reported to the police, whereupon a report was lodged and post mortem on the corpse of the deceased was got conducted, wherein the doctor opined the reason of death to be cardio respiratory failure. As per the petitioners, the deceased was a healthy person having no disease and since he joined the duties of respondent No. 1, he was fighting with fumes, dust and gases. It was averred that the drivers/workers of respondent No. 1 used to say that there was no proper ventilation and respiration system in the tunnels, but no heed was paid to the requests of the workers. The death of the deceased was the result of his employment and happened due to the service conditions. Lastly, the petitioners submitted that they, being the legal heirs of the deceased, are entitled for compensation.
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filing reply, wherein preliminary objections, i.e., maintainability, jurisdiction, non-issuance of notice under Section 21 of the Act, non-joinder of necessary parties and that the petitioners have not come to the Court with clean hands were taken. On merits, respondent No. 1 averred that the deceased was working with it (respondent No. 1), through Contractor Raj Kumar Thakur. It was denied that the project was located at a very high altitude and there was deficiency of oxygen. It was also denied that continuously for twelve hours, work was being taken and the work was stressful. The replying respondent also denied that on 16.03.2009 the deceased was on night shift and working in a service van continuously in the tunnels. It was denied that there was dust, fumes and no proper air inside the tunnels and it became difficult for the deceased to breathe. As per the replying respondent, there was no connection of death of the deceased with his employment, as he died natural death, thus the death of the deceased neither occurred during the course of his employment, not out of employment. Therefore, respondent No. 1 is not liable to pay any compensation to the deceased, but in case respondent No. 1
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is found liable to pay the compensation, then respondent No. 2, i.e., Insurance Company, is liable to indemnify the same, as it had provided Group Personal Accident Insurance to all the employees working at all the sites. Lastly, respondent No. 1 prayed for dismissal of the claim petition.
for determination and adjudication:
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2. Whether deceased Hoshiar Singh passed away during the course of his employment? OPP
3. If issue Nos. 1 and 2 are proved in affirmative, whether petitioners are entitled to the compensation alongwith interest and penalty as prayed for? OPP
4. Whether petition is not maintainable in the present form? OPR
5. Whether no notice as per provision of Section 21 of the Employee’s Compensation Act has been given to the Commissioner, Employees’ Compensation of the area concerned where the accident took place and effect thereof? OPR-1
6. Whether the present petition is also bad for non-joinder of necessary parties? OPR-1
7. Whether the petitioners have not approached the Court with clean hands and effect thereof? OPR-1
8. Whether the claim petition is false, frivolous, vexatious, exaggerated and inflated, as alleged? OPR-2
9. Whether this Court has no jurisdiction to try the present petition? OPR-2
10. Whether petition is hopelessly time barred? OPR-2
11. Whether the present petition has been filed in collusion with respondent No. 1 and effect thereof? OPR-2
12. Relief.”
petitioners, issues No. 2 and 3 against the petitioners, issue
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No. 4 in favour of the respondents, issues No. 5 in favour of respondent No. 1, issue No. 6,& 7 against respondent No. 1, issue No. 8 to 11 against respondent No. 2, the petition was dismissed, hence the instant appeal preferred by the petitioners.
2. Whether the learned Commissioner could have negative the findings on issue No. 3 against the appellants in the face of the material pleaded and adduced by way of deposition on record?”
that the deceased was employed as driver on the service van
of respondent No. 1 and at the time of blasting, there used to remain dust in the tunnels and the deceased used to feel suffocated in the tunnel due to the pollution inside the tunnel and he died due to the cardio respiratory failure. He further contended that since the deceased had died due to the injuries suffered during the course of employment, he is entitled to compensation and the impugned judgment passed
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by the learned Commissioner below deserves to be quashed and set-aside.
Neutral Citation No. ( 2024:HHC:5028 )
9 13. It is a settled law that the death of the deceased
in ordinary course or even in course of employment, cannot attract liability of the employer, unless there is a casual connection, between death and employment. To come within the Act, the injury must arise out of and in the course of employment. The words "in the course of employment" means, in the course of work for which the workman is employed to do and which is incidental to it. The words "arising out of duty or employment" are understood to mean that "during the course of the employment or service. In short, there must be a casual relationship between the injury and employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression, undoubtedly, applies to employment such as to its nature, its conditions, its obligations and its incidents. In order to hold the employer liable for the payment of compensation, it is not necessary to show that the injury in question occurred or caused during the actual working hours or while performing actual duties.
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respiratory failure suffered by the deceased in the course of
his employment, can be termed as a personal injury suffered by him on account of accident arising out of and in the course of his employment? Before proceeding to consider the said question, it would be useful to refer to Section 3(1) of the Workmen’s Compensation's Act which reads as
hereunder:
"Section 3(1): If the 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."
compensation, in accordance with the provisions of the Act, to a workman, if such workman suffers personal injury by an accident arising out of and in the course of his employment.
and Another; (2006) 5 Supreme Court Cases 513, The Hon’ble Supreme Court held that:
"Under Section 3 (1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as natural result of the disease which he was suffering or while suffering from a particular disease he
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dies of that disease as a result of wear and tear, of the employment no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the diseased coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable".
Shreshti Vs. Prabhakar Maruti Garvali), the Hon’ble
Supreme Court laid down the following principles with regard
to essential ingredients to attract the provision of Section 3 of
the Act :
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27. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred.
18 . The claim of the petitioners is to be now appreciated in the light of the above legal position. As per averments made in claim petition, the deceased was on night shift duty on 16.03.2009 working in a service van and he started his shift at 08:00 p.m. The deceased was continuously in the tunnels and during midnight the deceased complained to the supervisor/in-charge of respondent No. 1 that he is unable to breath, where two blasts had already been done. However, the deceased was not allowed to go out for rest. There was dust, fumes and no
Neutral Citation No. ( 2024:HHC:5028 ) 13 proper air ventilators in the tunnels. The deceased also complained to one of the drivers, who was working in another vehicle, but he could not help him. When the condition of the deceased deteriorated, he returned to the camp and when he was resting, he died due to cardio respiratory failure. Thus, as per the petitioners, the death of the deceased was the result of his employment and happened due to the service conditions.
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her cross-examination she admitted that her husband never told her about any stress or strain.
the claim petition. The petitioners have not been able to prove that cardiac arrest was a result of the nature of job.
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22. As observed earlier, mere death in ordinary
course by some bodily ailment or event in "course of
employment", cannot attract liability of the employer, under Section 3 of the Act. There should be a casual connection between "employment and the death in an unexpected way" in order to bring the accident within Section 3 of the Act.
Supreme Court further held as under:
“In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:
1. stress and strain arising during the course of employment
2. nature of employment
3. injury aggravated due to stress and strain
28. The deceased was travelling in a vehicle. The same by itself cannot give rise to an inference that the job was strenuous.
29. Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf.
30. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart
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failure in a case of the present nature would not be presumed. No legal fiction therefor can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor.”
fact that the deceased died due to cardio respiratory failure is not disputed, but, that by itself will not, give rise to automatic presumption that the same was by way of accident. Medical expert was not examined to prove that the deceased could have suffered stress and strain as a result of the hectic schedule of motor vehicle driving or had suffered cardio respiratory failure due to dust, fumes and improper air ventilators or unhygienic working conditions. The burden was upon the petitioners to establish the existence of the circumstances that the nature of the employment was such that it involved stress and strain and the cardio respiratory failure was caused due to some risk incidental from the duties of the service and the nature of duties contributed to
the death. Since, the deceased died as a result of cardio respiratory failure and the petitioners having failed to prove a casual connection between the injury and the accident and
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the work done in the course of employment, no liability can be fixed upon the employer. Hence, no fault can be found in respect of the said conclusion reached by the learned Commissioner below.
( Sushil Kukreja ) Judge 12th July, 2024 (virender)
2 issues framed by the court
Whether the death of the workman due to cardio respiratory failure arose out of and in the course of employment under Section 3(1) of the Workmen's Compensation Act?
Whether the claimants proved a causal connection between the work conditions and the death to fix liability on the employer?
Colour shows how this judgement treated each authority
Jyothi Ademma v. Plant Engineer, Nellore and AnotherRelied on¶16
(2006) 5 Supreme Court Cases 513
Shakuntala Chandrakant Shreshti v. Prabhakar Maruti GarvaliRelied on¶17
AIR 2007 SC 248 · Who else cites this
2 provisions across 2 enactments
Rekha Devi & others
J.P. Associates Hydro Electric Project
Respondent No. 2 (Insurance Company)
Sushil Kukreja
As recorded by the court registry
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