HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.M.A.No.590 of 2005 Date : 13-8-2014 Between:
Divisional Railway Manager, South Eastern Railway, Khurda Road, Division, Janthi Post, Khurda, State of Orissa. ..
Appellant And Smt. Ratnala Tilottama and others ..
Respondents Counsel for appellant : Sri R.S. Murthy Counsel for respondents : Sri A. Ravi Shankar The Court made the following :
JUDGMENT:
This Civil Miscellaneous Appeal arises out of order dated 20-4-2000 in W.C.No.28 of 1999 on the file of the Commissioner for Workmen’s Compensation-cum-Assistant Commissioner of Labour, Srikakulam.
I have heard Sri R.S. Murthy, learned Counsel for the appellant and Sri A. Ravi Shankar, learned Counsel for the respondents.
The deceased one Ratnala Madhava Rao was employed as a Waterman by the appellant in the Palasa Railway Station. On 16-9-1994, he died on the Railway platform. As per the post-mortem certificate, the deceased was stated to have died between 16 to 24 hours prior to the post-mortem examination i.e., between 12.30 P.M. and 8.30 P.M. on 16-9-1994. The family members of the deceased have filed a claim before the Commissioner for payment of compensation. The Commissioner, by his order impugned in this appeal, awarded a sum of Rs.1,84,170/- along with interest @ 12% per annum from the date of death till the date of deposit.
The appellant-Railways filed a counter-affidavit wherein it was stated that as per the death certificate, the cause of death of the deceased-employee was shown to be Myocardial Infraction and that he has not died either during the course of his employment or on account of accident arising out of employment. It was specifically pleaded that on 16-9-1994, the deceased was on duty from 6.A.M. to 2 P.M. and that he has died at about 4.30 P.M.
On the basis of the respective pleadings of the parties, the Commissioner has framed the following issues
1. Whether Sri R. Madhavarao was a worker or not?
2. Whether the deceased died during the course of employment?
3. Whether the Workmen’s Compensation Act applies to this case?
4. What is the amount of compensation payable by the Opposite Party if the above 3 are answered.
Respondent No.1 has examined herself as AW-1 and also adduced the evidence of one Smt.Prabhavathi, Waiting Room Bearer, Palasa Railway Station, as AW-2. Respondent No.1 has filed Ex.A-1-FIR, Ex.A-2-Death Certificate, Ex.A-3-Postmortem report, Ex.A-4-School Certificate of the deceased and Ex.A-5-Letter dated 31-12- 1996 of the Deputy Commissioner of Labour, Visakhapatnam. No evidence was adduced on behalf of the appellant. On considering the oral and documentary evidence, the Commissioner held that as the deceased died in the premises of the Railway Station while doing Waterman duty, he has died in the course of employment and hence the respondents are entitled to compensation.
Section 3 of the Workmen’s Compensation Act, 1923 (renamed as Employees’ Compensation Act, 1923) (for short "the Act") provides for payment of compensation if personal injury is caused to an employee by accident arising out of and in the course of employment. Section 4 thereof envisaged the amount of compensation in case of death resulting from injuries sustained by the employee. From a plain language of Section 3 of the Act, it is evident that the employer will be liable to pay compensation only if personal injury is caused to the employee by an accident arising out of and in the course of his employment. Therefore, for fastening the liability on the employer, twin requirements have to be satisfied, namely, that the employee has sustained injuries in an accident; and that he has sustained such injuries in the course of his employment. In this case, there is a serious dispute as to the time at which the deceased-employee died. While it is the case of the appellant that the employee died after his duty hours at 4.30 P.M., the respondents have pleaded that he has died between 12 Noon and 1 P.M. However, in the post-mortem certificate the Doctors have opined that the employee would have died between 12.30 P.M. and 8.30 P.M. In view of this ambiguity, benefit of doubt can be given to the respondents. Thus, even assuming that the deceased died during and in the course of his employment while discharging his duties, the respondents will not be entitled to compensation unless it is further proved that the deceased-employee died out of the injuries sustained by him in an accident. Neither a plea was taken that an accident has occurred when the deceased was attending to his duties nor a finding in that regard has been recorded by the Commissioner. The post-mortem examination report, as noted above, clearly mentioned the cause of death as Myocardial Infraction. Unless the death of the deceased- employee is attributed to the accident taken place in the course of employment, the employer cannot be made liable to pay the compensation. In the above facts and circumstances, the order of the Commissioner cannot be sustained and the same is accordingly set-aside.
During the pendency of this appeal, this Court has permitted the respondents to withdraw 50% of the compensation amount without furnishing any security. Considering the fact that the respondents appear to belong to very low strata of the society, I deem it appropriate that the compensation amount already withdrawn by them shall not be recovered by the appellant. However, it is directed that the balance compensation amount which is lying in deposit before the Commissioner is permitted to be withdrawn by the appellant-Railways.
Subject to the above directions, the Civil Miscellaneous Appeal is allowed to the extent indicated above. The fee of the Counsel for the appellant is fixed at Rs.10,000/- (Rupees ten thousand only).
Justice C.V. Nagarjuna Reddy Date : 13-8-2014 L.R. copies AM