Dismissed

The Divisional Manager v. Roshanbanu W/O Babajan Navalur

Karnataka HC4 Jul 2024MFA/101853/2016

Case brief

AI extract

What is this about?

A miscellaneous first appeal by New India Assurance Company challenging a compensation award under the Employees Compensation Act. The High Court dismissed the appeal, holding that the driver's death due to stress during continuous employment was attributable to employment, rendering the insurer liable.

What did the court decide?

Weekly amount of Rs.6,34,760/- confirmed; interest limited to 30 days post-accident at 12% per annum.

The Divisional Manager Vs Roshanbanu W/O Babajan… — Company and Corporate | Karnataka HC (2024)

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NC: 2024:KHC-D:9329 MFA No. 101853 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T MISCELLANEOUS FIRST APPEAL NO. 101853 OF 2016 (WC)

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BETWEEN:

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THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., 2ND FLOOR, SRINATH COMPLEX, NCM, REPRESENTED BY MANAGAER, NEW INDIA ASSURANCE CO.LTD., T.P.HUB, SRINATH COMPLEX, II FLOOR, NEW COTTON MARKET, HUBBALLI-580022.

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…APPELLANT

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(BY SRI. M K SOUDAGAR, ADVOCATE)

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Digitally signed by MANJANNA E Location: HIGH COURT OF KARNATAKA

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AND:

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ROSHANBANU

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W/O. BABAJAN NAVALUR, AGE: 26 YEARS, OCC: HOUSEHOLD WORK, R/O: DYAVANUR PLOT, ANNIGERI, TQ: NAVALGUND, DIST: DHARWAD.

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KUMARI KHUSHI

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D/O. BABAJAN NAVALUR, AGE: 03 YEARS, OCC: NIL, MINOR REPRESENTED BY NATURAL

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NC: 2024:KHC-D:9329 MFA No. 101853 of 2016

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MOTHER PETITIONER NO.1 ROSHANBANU W/O. BABAJAN NAVALUR, R/O: DYAVANUR PLOT, ANNIGERI, TQ: NAVALGUND, DIST: DHARWAD.

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PUJA SAGAR MARO, AGE: MAJOR, OCC BUSINESS, R/O: RAGHAVA ROAD, LAYANCE HALYAL ROAD, DANDELI (DECEASED).

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MADHU S/O. MADANLAL MARO AGE: MAJOR, OCC BUSINESS, R/O: MADHU ROAD, LIONS, CHANNAMMA CIRCLE, HALYAL ROAD, DANDELI, TQ: JOIDA, DIST: UK.

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KUMARI. BASIRA D/O. MADARSAB NAVALUR AGE: 39 YEARS, OCC: HOUSEHOLD, R/O: OLD DANDELI, TQ: HALIYAL, DIST: U.K.

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…RESPONDENTS

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(BY SRI. NEEL P. PATEL, ADV. FOR SRI. GOURISHANKAR H. MOT, ADV. FOR R1 & R2; SMT. K. SHOBHARANI, ADV. FOR R3; SRI. SOMASHEKAR B. ANCHATGERI, ADV. FOR R4; NOTICE TO R5 DISPENSED WITH)

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THIS MFA IS FILED U/SEC.30(1) OF THE EMPLOYEES COMPENSATION ACT 1923, PRAYING TO CALL FOR RECORDS IN CASE ECA NO.52/2014, ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND JMFC, HUBBALLI AND SET ASIDE THE JUDGMENT AND ORDER DATED 06.04.2016 BY ALLOWING THIS APPEAL WITH COST AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the Insurance Company challenging the judgment and award passed in E.C.A. No.52/2014 dated 06.04.2016 on the file of the III Additional Senior Civil Judge and JMFC, Hubballi, under Employees Compensation Act (for short, ‘the E.C.Act’).

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For the sake of convenience, the parties are referred to as per their rank referred to in the claim petition before the Tribunal.

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The brief facts which are necessary for disposal of the appeal are as under:

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The claim petition was filed under the provisions of the Workmen’s Compensation Act, 1923 (hereinafter referred to as “W.C. Act” for short) contending that one Babajan was working as a driver in a lorry bearing registration No.KA-31/4381. On 18.11.2011 at about 4.00 p.m. the driver Babajan took Lorry, which was loaded with

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papers from Karnataka West Coast Paper Mill, Dandeli to Thane, Mumbai, he reached Thane, Mumbai, on the next day, where he parked the Lorry and goods were unloaded. However, Babajan suffered heart attack. Immediately, he was shifted to Jupitar Hospital, and from there he was taken to Civil Hospital, Thane and there he was declared as dead.

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It is contended that the deceased drove the truck continuously viz., day and night from Dandeli to Thane, Mumbai with heavy load of papers and undergone much stress and strain. As a result of said stress, he suffered massive heart attack. The death of the deceased was due to stress and strain by continuous driving of heavy goods and this was happened during the course and out of the employment. Therefore, the claimants being the dependants of the deceased, having lost their bread winner, laid a claim awarding suitable compensation.

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The commissioner raised necessary issues and after deciding the oral and documentary evidence on

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record, allowed the claim petition in a sum of Rs.6,34,760/- as compensation. Being aggrieved by the same, the Insurance Company has preferred this appeal.

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Sri.M.K.Soudhagar, learned counsel appearing for the appellant – Insurance Company vehemently contended that the Commissioner committed a grave error in fastening the liability on the Insurance Company, as there was no nexus between the death of the deceasedBabajan and his employment. Further no vehicle is involved and accident has not taken place, whereas, it was a massive heart attack of the deceased for personal reasons, particularly, as per Ex.P.3-Postmortem report, the deceased Babajan died due to Tuberculosis decease and not due to heart attack. Therefore, the Insurance Company cannot be penalized for the death of deceased on personal reasons. Hence, he prayed to allow the appeal.

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Sri.Neel P. Patel, learned counsel for the claimants/respondents contended that the Commissioner

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for Employee’s compensation after considering the oral

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and documentary evidence on record, held that the incident was occurred during the course of the employment under the owner of the lorry – respondent No.1. It is further contended that the deceased-Babajan during the course of the employment under the respondent No.1 died due to stress and strain and as the offending lorry was duly insured with the appellant/Insurance Company, it is liable to pay the compensation. Hence, he prayed to dismiss the appeal filed by the appellant – Insurance Company.

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The counsel for the claimants relied upon the

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following decisions:

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“i. Divisional Manager National Insurance Company Limited Vs. Smt.Jasvindar Kaur W/o Ramalal Rana and others¹ ;

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ii. The Branch Manager United India Insurance Co. Ltd. Vs. Jeteppa S/o Shivappa Hatti and others² ;

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1 MFA No.13448/2007 D.D. 21.07.2016

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iii. Divisional Manager National Insurance Company Limited Vs. Ramesh S/o Maruti Kalal and others³ .

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iv. Divisional Manager National Insurance Company Limited Vs. Smt. Pramilabai and others⁴ .

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In view of the submissions made by the counsel for appellant and respondents, the following points that would arise for Court’s consideration are as follows:

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“i. Whether the employees compensation Commissioner is justified in holding that the Babajan was an employee of respondent No.3 and his death was arisen out of employment and during the course of employment on the insured lorry?

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ii. Whether the employees compensation Commissioner is justified in holding that death is due to stress?

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iii. Whether the Commissioner acted perversely and contrary to law in ignoring the defence of appellant/insurance Company that the death of deceased due to heart attack/

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2 MFA No.30945/2010 D.D.No.29.02.2016

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3 MFA No.31780/2012 D.D.28.06.2016

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4 MFA No.3132/2010 D.D. 02.03.2016

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Tuberculosis decease which has not resulted out of employment?”

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In the light of the points raised by this Court,

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this Court re-appreciated the contents putforth by the learned counsel for the parties.

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In the instant case, deceased-Babajan lost his breath, on account of death while he was in Thane, Mumbai. It is not in dispute that deceased-Babajan was employed under insured and who transported the paper goods in lorry bearing registration No.KA-31/4381 from Dandeli to Thane, Mumbai.

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As per the contents of Ex.P.1-Comlaint and Ex.P.4-Charge sheet, the deceased-Babajan drove the vehicle continuously and inconsistently and stopped the vehicle at Thane, Mumbai and unloaded the paper and on the following day he suffered massive heart attack. On that circumstance, the driver of deceased-Babajan meets his unexpected death, may be due to heart failure or due to Tuberculosis decease however, death was during the

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course of his employment as mentioned in Ex.P.3Postmortum examination report.

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The deceased being a professional heavy vehicle driver, when undertakes the job of such driving as his regular avocation, it can be safely held that such constant driving of heavy vehicle, being dependant solely upon his physical and mental resources and endurance, there was every reason to assume that the avocation of driving was a material contributory factor, if not, the sole clause that accelerated his unexpected death to occur which in all fairness should be held to be an untoward mishap in his life span. Such an untoward mishap can therefore be reasonably described as an accident as having been caused solely attributable nature of employment indulged in with his employer which was in the course of such employer’s trade or business.

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This similar view was expressed by the Hon’ble Apex Court in the cases of North East Karnataka Road

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Transport Corporation vs. Sujatha⁵ ; Ved Prakash Garg vs. Premi Devi and others⁶ ; and in the case of

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National Insurance Co. Ltd., vs. Prembai Patel and others⁷ , the Hon’ble Apex Court has held that whether the Insurance Company is liable to meet the award of the Commissioner imposing penalty and interest against the insured employer. This is not an issue under consideration in the case on hand.

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From perusal of oral evidence of P.W.1, contents of Ex.P.3-Postmortm report and oral evidence of RW.1 and 2 and the ratio laid down in the decision cited supra, the driver Babajan died during the course of employment.

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The Hon’ble Apex Court in case of Rita Devi and Other Vs. New India Assuance Company limited

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and another⁸ . The Coordinate Bench of this Court in MFA 22953/2010 date of disposal 27.09.2021, considered the

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5(2009) 11 SCC 514

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6 (1997) 8 SCC 1

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7 (2005) 6 SCC 172

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8 (2000) 5 SCC 113

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murder of employee was during the course of employment and out of employment.

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Looking into the any angle death of driverBabajan was during course of employment and therefore, Insurance Company has to be indemnify the owner and therefore, appellant is liable to pay the compensation.

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Sri.M.K.Soudhagar, learned counsel for the appellant fairly submitted, by virtue order of Court, the appellant/Insurance Company deposited entire compensation amount on 02.09.2016 before ECA Commissioner. Hence, the amount deposited by Insurance Company has been invested in fixed deposit. Hence, no interest is to be levied on Insurance Company.

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The submission is placed on record.

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Hence, there are no merits in the appeal. The

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appeal is dismissed being devoid of merits.

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It is made clear that the appellant/Insurance Company deposited entire compensation amount before the ECA Commissioner. Therefore, the appellant/Insurance

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