Smt. Gulab Vs Sri. Mohammed Azeemulla

SRI. MOHAMMED AZEEMULLA AGED 46 YEARS S/O MOHAMMED SHAFIULLA R/AT NO.59, GANDANAHALLI KOPPALU VILLAGE AND POST, K.R.NAGAR TALUK MYSURU DISTRICT-571 602

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M/S CHOLAMANDALAM MS GENERAL INSRUANCE COMPANY LIMITED SHOP NO.2, SIGMA COMPLEX, OPPOSITE BGS COMPLEX, OPPOSITE BGS HOSPITAL NEW KANTHARAJ URS ROAD KUVEMPUNAGAR, MYSURU-570023 REPRESENTED BY ITS BRANCH MANAGER

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…RESPONDENTS

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(BY SRI. GURURAJ KULKARNI, ADVOCATE FOR R1 SRI.H.S.LINGARAJU, ADVOCATE FOR R2)

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THIS MFA FILED U/S 30(1) EMPLOYEE COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 20.07.2022 PASSED IN ECA NO.2/2017 ON THE FILE OF THE COURT OF SENIOR CIVIL JUDGE AND JMFC, KRISHNARAJANAGARA, MYSURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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The present appeal is filed, aggrieved with the dismissal

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of ECA.No.2/2017 dated 20.07.2022 passed by the Senior Civil Judge and JMFC at K.R. Nagar, Mysuru whereby the tribunal has dismissed the claim petition.

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HC-KAR

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The claim petition is filed seeking compensation of an amount Rs.15,00,000/- along with interest at the rate of 12% per annum from the date of accident. It is the case of the claimants that the respondent No.1 is the owner of the lorry, the deceased was driver of the said lorry at the time of the accident. On 17.01.2016 the deceased and the cleaner of the lorry after loading the paddy sacks from K.R.Nagar are going towards Kaladi Paddy open market. On the early morning at about 01.30 a.m. of 19.01.2016 they reached their destination i.e., Ernakulam District, Kerala State. At about 05.30 a.m. the driver of the lorry parked the lorry in the premises of the rice mill for the purpose of unloading the paddy sacks. At that time the driver Pasha went for sleep in the cabin of the lorry. In the meantime the cleaner was supervising the unloading of the paddy sacks from the lorry. After completion of the unloading at about 07.00 a.m. the cleaner called the driver to move the vehicle from parking place. When the cleaner tried to wake up the driver, there was no movement and when he was taken to the hospital, he was declared as brought dead.

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HC-KAR

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The tribunal observed that the deceased has taken more than 24 hours for covering the journey, the total duration which is required for covering the said Distance is 404 or 450 kms. It may require around 9 hours. When the deceased driving 450 Kms in more than 24 hours, the journey cannot be held as hectic driving and strain full driving. Further, the tribunal has observed that there is no casual connection relation to the death of the deceased with that of his employment as a truck driver and hence he is not entitled for the compensation.

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Learned counsel appearing for the appellant/claimant had relied on the judgment of the Hon’ble Apex Court in case of The Chairman, Vaidyanatha Sahakari Sakhar Karkhana Ltd. & Anr. Vs. Shantabai & Anr . Relying on this judgment which is arising out of SLP.No.29239/2019 submits that as the accident has occurred during the course of his employment he is entitled for compensation.

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5.Learned counsel appearing for the respondent/ insurance company submits that the tribunal had rightly held that the lorry driver work is not so stressful and it has not led

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HC-KAR

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to the death of the deceased, as such he is not entitled for any compensation.

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Having heard the learned counsels on either side, perused the entire material on record. Before going into the facts of the case, it is appropriate to look at Para No.14,15,16,17,18 and 19 of the judgment passed by the Hon’ble Apex Court referred supra which reads thus:

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14. The expression “accident” according to P Ramanatha Aiyar’s Advance Law Lexicon Dictionary means ”undesigned, sudden or unexpected event; mishap; misfortune; disaster”. The word “accident” is derived from the Latin verb “accidere” signifying “fall upon, befall, happen, chance”. In other words, it is a sudden and unexpected event taking place without expectation upon the instant, rather than something which continues, progresses or develops; something happening by chance not according to usual course of things or events, out of the range of ordinary calculations; that which exits or occurs abnormally, or an uncommon occurrence.

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15. The word “accident” generally denotes an event that takes place without one’s foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known

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HC-KAR

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cause, and therefore not expected; chance, casualty, contingency (Webster Dictionary).

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16. In other words, an “accident” being an unforeseen event causing a misfortune or loss is different from an omission which is as a result of negligence or misconduct. Therefore, the expression “accident” means an untoward mishap which is not expected or designed. In the context of the Act under consideration, the term “accident” for the purpose of seeking compensation for personal injuries sustained would include any injury which is not designed by the workman himself. Thus, the word “accident” would include all mishaps occurring by chance or caused unintentionally and events happening due to unforeseen circumstances under Section 3(1) of the Act. It must be interpreted as mishap or “untoward event not expected or designed” in the popular and ordinary sense. If the injury or death occurred without designed on the part of the workman then the death or injury would be by accident, although it was brought about by a heart attack or some other cause to be found in the condition of the workmen himself. The expression “accident” not being defined under the Act must be interpreted to be an untoward event which is not expected or designed; therefore, an accident means unintended and unexpected occurrence which produces hurt or loss. The interpretation of the word “accident” must be in

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HC-KAR

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the popular and ordinary sense and not in a technical sense. Thus, the expression “accident” arising out of and in the course of his employment in Section 3(1) of the Act must be so interpreted as to establish that (1) at the time of the accident he was in fact engaged in the duties of his employment; (2) that it occurred at the place where he was performing those duties; and (3) that the immediate act which led to the accident is not so remote from the sphere of his duties so as to be regarded as something foreign to them.

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17. In Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali & Another, (2007) 11 SCC 668, while applying Section 3 of the Act, this Court observed that the tests attracting the provision of Section 3 of the Act would require the following principle to be proved:

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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 applicant 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

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HC-KAR

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workman to succeed, but the same would depend upon the fact of each case.

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18. In the said case, taking note of the fact that the deceased died as a result of heart attack and he was working as a helper, it was observed that per se the duties would not be such which would cause stress and strain. If an additional duty was required to be performed by the deceased, the same was required to be clearly stated. In the facts of the said case, this Court declined to grant any relief and observed that the case did not fall within the scope and ambit of Section 3 of the Act.

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19. We have considered the aforesaid judgments in light of the facts of the present case and perused the material on record. Having regard to the nature of the job that the deceased was performing as a Quadruple mate in the appellant-Factory and the cause of his death, we find that there was a causal connection between the death and the nature of the job that the deceased workman was discharging in the appellant-factory.

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In the light of the order passed by the Hon’ble Apex Court, this court has no hesitation to conclude that the deceased had died in the course of the employment and the claimant is entitled for the compensation. It is a fact that the deceased went to Kerala and while the cleaner was overseeing the unloading of the

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HC-KAR

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paddy sacks, the deceased was taking rest. The finding of the tribunal that the driving was not stressful is not a just conclusion.

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Then coming to the compensation, there is no material

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before the court to arrive at an amount. In that view of the matter this court is inclined to remand the matter to the tribunal to decide the entitlement of compensation by the claimants.

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i. The impugned order passed in ECA.No.2/2017 dated 20.07.2022 by the Senior Civil Judge & JMFC, K.R. Nagar, Mysuru is set aside and Remanded Back to the Tribunal for fresh consideration.

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ii. It is held that claimants are entitled for compensation. The tribunal shall determine the compensation amount that is payable to the claimants and pass appropriate orders within a period of two months from the date of receipt of the copy of the order.

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iii. Without further notice, the parties shall appear before the Tribunal on 02.09.2025 .

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HC-KAR

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iv. The Registry is directed to return the Trial Court Record to the Tribunal along with the certified copy of the order passed by this court forthwith without any delay.

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v. Accordingly, the appeal is Allowed .

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vi. No Costs.

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vii. Pending miscellaneous petitions, if any, shall stand closed.

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SD/- (LALITHA KANNEGANTI) JUDGE

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TS

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List No.: 2 Sl No.: 19

Smt. Gulab v. Sri. Mohammed Azeemulla

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Smt. Gulab v. Sri. Mohammed Azeemulla

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