Dismissed

The New India Assurance Co. Ltd. v. Smt. Tara Kunwar and Ors.

Rajasthan HC8 Jan 2015CMA/785/2014

Case brief

AI extract

What is this about?

The Rajasthan High Court dismissed an appeal filed by an insurer challenging an order awarding compensation to dependents of a deceased driver. The court held that the accident arose during the course of employment and that no substantial question of law existed to overturn the lower authority's factual finding.

What did the court decide?

The appeal was dismissed summarily.

The New India Assurance Co. Ltd. Vs Smt… — Pension and Retirement Benefits | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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J U D G M E N T

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The New India Assurance Co. Ltd. Vs. Smt. Tara Kanwar & Ors. S.B. CIVIL MISC. APPEAL NO.785 OF 2014

Date of Judgment:

January 8, 2015.

P R E S E N T

HON'BLE MR. JUSTICE P.K. LOHRA, J.

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Mr. Jagdish Vyas, for the appellant.

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BY THE COURT:

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Appellant insurer has preferred this appeal under Section 30 of the Employees Compensation Act 1923 (for short, ‘Act of 1923’) assailing the judgment dated 14^th of February 2014 passed by Commissioner, Employees’ Compensation Act, Rajsamand (for short, ‘learned Commissioner’).

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The learned Commissioner, by the impugned judgment, while adjudicating claim of the respondent-

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claimants under Section 10 read with Section 22 of the Act of 1923, awarded compensation of Rs.3,03,800 to

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them with interest @12% per annum and penalty amount of Rs.1,86,900. On evaluation of evidence and other materials on record, the learned Commissioner has found that deceased Bheru Singh was in employment of 6^th respondent as Driver of Truck No.RJ-27-GA-4035, who has suffered injuries during the course of and out of employment resulting in his death.

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The facts in brief are that on 27.11.2009, while discharging his duties as Driver, Bheru Singh, accompanied by Khalasi, proceeded from Palas (U.P.) with plastic material in the truck and reached near Police Station Samla. The vehicle was stopped at Hotel Sanwariya and they took their meals. It appears that the goods loaded in the truck were stolen and therefore Bheru Singh lodged FIR with the police station and did not sleep till 2:30 AM. In the morning at 6 AM, when he was not available near the vehicle, efforts were made to trace him out. His slippers were found nearby on the highway and later on his dead body was recovered. It appears that he suffered crushing injuries and died on the spot. On that basis, First Information Report bearing No.72/2009 was lodged. In the claim petition, it is averred that accident occurred during the course of and

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out of employment and therefore respondent-claimants are entitled to compensation under the Act of 1923. For quantifying compensation, it was specifically pleaded in the claim petition that at the time of death deceased was earning Rs.6,000/- per month as Driver. Besides the claim amount with interest @12% per annum, 50% of the compensation amount is also claimed as penalty.

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The claim petition is contested by the insurer, however, despite service none appeared on behalf of the employer and therefore the learned Commissioner proceeded ex-parte.

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After considering the pleadings of rival parties, the learned Commissioner framed four issues for determination. On behalf of respondent-claimants, two witnesses were examined and 16 documents were tendered in evidence which were exhibited. However, on behalf of the appellant-insurer and employer no evidence was tendered. The learned Commissioner, after considering the evidence of rival parties decided all the issues in favour of respondent-claimants and awarded compensation of Rs.3,73,800/- and interest @12% per annum. Besides that, 50% of the claim amount was also

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awarded as penalty to the respondent-claimants.

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Learned counsel for the appellant submits that the accident has not occurred during the course of and out of the employment and therefore the impugned award is not sustainable. Mr. Vyas, learned counsel for the appellant, would contend that there is no nexus between accident and death of the workman, therefore, it is not a case wherein presumption can be drawn that accident has occurred during the course of and out of employment. In support of his contentions, learned counsel has placed reliance on two decisions of Hon’ble Apex Court in Rashida Haroon Kupurade Vs. Divisional Manager, Oriental Insurance Co. Ltd. & Ors. [MACD 2010 (SC) 49] and Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Co. Ltd. & Anr. [MACD 2009 (SC) 182].

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I have heard learned counsel for the appellant and perused the impugned judgment.

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The first and the foremost question, which requires determination in the instant appeal, is whether accident has occurred during the course of and out of employment. There is no quarrel in the factual position

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that deceased was employed as a Driver with Truck NO.RJ-27-GA-4035 and on fateful day he was on duty as Driver. The accident occurred when deceased was discharging his duties due to an accident on highway wherein he received crushing injuries. Unimpeachable evidence, which is tendered by the respondents, clearly and unequivocally reveals that when death occasioned due to accident, deceased was discharging his duties. The evidence tendered by the respondent-claimants was not rebutted by the appellant as well as employer by tendering any cogent evidence. The learned Commissioner, while examining the matter within four corners of the Act of 1923, has recorded a finding of fact that accident has occurred during the course of and out of employment. While arriving at this conclusion, the learned Commissioner has pressed into service doctrine of notional extension which in the facts and circumstances of the instant case cannot be faulted.

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The words, “arising out of and in the course of employment” are required to be interpreted elaborately. Distinction between two phrases, as held by various Courts, is that “in the course of employment” suggests the point of time, i.e., the injury must be caused during

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the currency of employment, whereas the other expression “out of employment” means that there must be some sort of connection between employment and the injury caused to the workman as a result of accident. As there is no difficulty in accepting such interpretation of these two phrases, the place of accident has to be construed as the place of duty of workman concerned if the calamity has occurred when he was in discharge of his duty.

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Upon thorough examination of the impugned judgment and the memo of appeal, I am unable to find any substantial question of law in the instant appeal which requires determination. Occurrence of the accident during the course and out of employment is a factual aspect and the learned Commissioner after evaluating the evidence available on record has recorded an affirmative finding which cannot be subject matter of judicial review in this appeal.

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It is trite that appeal under Section 30 of the Act of 1923 can be entertained by this Court if there is substantial question of law involved in appeal. The legal precedents, on which the learned counsel for the

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appellant has placed reliance, are factually distinguishable. The Act of 1923 is a welfare legislation intended to give benefit to the workman suffering employment injuries and therefore while construing the term “accident arising out of and in the course of employment”, a liberal and benevolent interpretation is to be adopted. As the learned Commissioner has examined the matter threadbare and has recorded a finding of fact favouring cause of the respondent-claimants, I am not persuaded to interfere with the impugned judgment. Moreover, there is no substantial question of law involved in this appeal requiring adjudication.

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Thus, viewed from any angle, the instant appeal lacks in merit and the same is accordingly dismissed summarily.

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arora /

The New India Assurance Co. Ltd. v. Smt. Tara Kunwar and Ors.

Case brief

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The New India Assurance Co. Ltd. v. Smt. Tara Kunwar and Ors.

Case brief

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