1. Heard Sri Satya Deo Ojha, learned counsel for the appellants.
2. This appeal is filed by the claimants against the judgement and award dated 28th May, 2018 passed by Commissioner, Employees' Compensation/Deputy Labour Commissioner, Meerut Region, Meerut in Employees Compensation Case No. 53 of 2016 whereby the Commissioner, Employees' Compensation has rejected the claim of the claimants.
3. By means of the present appeal following substantial questions of law are proposed by the appellant.
a. Whether the Employees' Compensation Commissioner was justified in rejecting the claim petition while the deceased died during the course of his employment ?
b. Whether the Employees' Compensation Commissioner was justified in not considering the death of the deceased while employee was died due to casual connection during the course of employment ?
c. Whether the Employees' Compensation Commissioner was justified in ignoring the casual connection to the death of the deceased which caused the death during the course of his employment ?
d. Whether the Employees' Compensation Commissioner was justified in rejecting the claim petition of the claimants while the death of workman arising out of the accident i.e. employee died in casual connection of his employment.
4. Brief facts of the case are that the claimant No.1 Om Pal Singh and his wife Smt. Mithlesh filed the claim petition as their son Monendra @ Mohindra @ Mohit, who was the driver of a Tanker bearing registration No.U.P. 15 BT 0491 belongs to M/s Madhu Transport Company, Indian Petrol Pump, Partapur, in front of J.P. Resorts, Delhi Road, Meerut died on account of an accident and the said Tanker was insured by the National Insurance Company Ltd, Regional Office, Agrawal Building, Begum Bridge Road, Meerut, Branch Office Sotiganj, Meerut. The claimants claimed that on 16.04.2016 the said tanker proceeded to Shahjahanpur from Gurudaspur (Punjab) and reached Shahjahanpur on 18.04.2016. On 19.04.2016, when the deceased Monendra @ Mohindra @ Mohit, son of claimants, was eating his meal with one Pape @ Rajkumar outside the factory at hotel/Dhaba, suddenly the son of the claimant has become unconscious at the 'Dhaba' and immediately he died there at 'Dhaba'.
5. According to the claimants due to over work and non-availability of food in time, the son of the claimants died when he was only 28 years old and was the main earning member of the family.
6. According to the claimants at the time of accident the son of the claimants was earning sum of Rs.8,000/- per month.
7. A written statement was filed by the claimants as well as by the opposite parties and the reply was also submitted.
8. On 19.05.2017, the statement of the claimants are recorded and thereafter on 16.08.2017 and 18.11.2017 respectively the cross examination of the witnesses was done. Again on 15.12.2107, the representative of the Insurance Company has cross examined the witnesses and on 08.02.2018 the statement of the owner of the tanker was recorded.
9. The final hearing took place on 18.05.2018 and the judgment was reserved by the learned Commissioner.
10. The Commissioner has examined the statements of the witnesses as well as written statement and has recorded that the owner of the vehicle has stated that the deceased was working with him since last eight years and further that when the deceased died he was in his employment. The employer has also admitted that the deceased was receiving a sum of Rs.8000/- per month salary and the final ritual was performed to his knowledge. It is also stated by the employer that the vehicle which was handled by the deceased as a driver was duly insured with respondent- Insurance Company and that the compensation is payable by the Insurance Company alone.
11. Per contra the Insurance Company has disbelieved and rejected the claim by saying that no evidence has been adduced which justify the claim.
12. In support of claim, the claimants have produced as many as eight documentary evidence and similarly the employer has also produced six documentary evidence before the Commissioner.
13. The contention of the claimants was that on account of over work and bad environmental condition and pollution, their son suddenly fell ill when he was performing his service and died.
14. The Commissioner Employees' Compensation has proceeded in the matter on the basis of documents which are adduced by the respective parties and has arrived at a conclusion that the deceased started his journey from Gurudashpur (Punjab) on 16.04.2016 and arrived at Sahajahanpur on 18.04.2016, has parked the said tanker/truck in the factory and accompanied with another driver went to take his meal at a hotel/Dhaba which is situated outside the factory. The Tribunal further recorded the finding that suddenly the deceased has become unconscious and died at the 'Dhaba'. The Commissioner has also noticed that in the post mortem report, the reason of death is described as cardiogenic shock. However, based on the statement of the claimant no.1, father of the deceased, who has stated that due to long driving and exertion as well as pollution, the deceased has suffered cardio arrest and died while he was performing his duty.
15. The Commissioner, Employees' Compensation has proceeded to pass the impugned order which is based on the documents which are adduced by the respective parties and has held that claimants are failed to establish that the cause of death was due to an accident. The Commissioner Employees' Compensation has further held that the compensation can only be granted when the employee died during the course of his service or an accident occurred at the time of rendering the services. The Commissioner Employee Compensation has, therefore, arrived at a conclusion that in the instant case cause of death of the deceased is not on account of the aforesaid two reasons, therefore, the claim petition of the claimants is rejected.
16. Having heard the learned counsel for the appellant-claimants, admittedly, in the instant case, there was no accident involving vehicle and therefore the death of Monendra @ Mohindra @ Mohit may have resulted in a liability on the owner but not the insurer.
17. The aforesaid argument has been stated to be repelled in view of the self apparent and settled position in law arising from a plain reading of Section 3 of Employees Compensation Act, 1923 and the judgment of the Supreme Court in the case of Param Pal Singh vs. National Insurance Company and Anr. reported in 2013 3 SCC 409, wherein paragraphs 20 to 27 it has been held as below:
"20. Once we cross the said hurdle only other question to be considered is whether death of the deceased was in an accident arising out of and in the course of his employment with the second respondent? It is common ground that the vehicle which was driven by the deceased did not meet with any road accident on 17.07.2002. As a matter of fact, the deceased while driving the vehicle from Delhi to Nimiaghat when reached near the destination, namely, Nimiaghat felt giddy and thereafter stated to have collapsed as he was found in a faint condition in the vehicle which he managed to park on the road side.
21. The entitlement to claim compensation is therefore dependent on fulfillment of the stipulations contained in Section 3(1) of the Workmen's Compensation Act, which read as under:
"3. Employer's liability for compensation.-(1) If personal injury is caused to an employee 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:
Provided that the employer shall not be so liable -
a) ...... ...... ......
b) ...... ...... ......
i) ...... ...... ......
ii) ...... ...... ......
iii) ...... ...... ......"
22. However, there are decisions of the English Court as early as of the year 1903 onwards stating that unlooked-for mishap or an untoward event which is not expected or designed should be construed as falling within the definition of an "accident" and in the event of such "untoward" "unexpected" event resulted in a personal injury caused to the workman in the course of his employment in connection with the trade and business of his employer, the same would be governed by the provisions of Section 3 of the Workmen's Compensation. Such a legal principle evolved from time immemorial got the seal of approval of this Court and for this purpose we can refer to the celebrated decision in Ritta Farnandes (supra). After referring to the decision of House of Lords in Clover Clayton & Co. V. Hughes reported in 1910 A.C. 242 this Court referred to the relevant passage in the decision of House of Lords in paragraph 4, which reads as under:
"4. Even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under the circumstances which can be said to be accidental, his death results from injury by accident. This was clearly laid down by the House of Lords in Clover Clayton & Co. v. Hughes where the deceased, whilest tightening a nut with a spanner, fell back on his hand and died. A post mortem examination showed that there was a large aneurism of the aorta, and that death was caused by a rupture of the aorta. The aneurism was in such an advanced condition that it might have burst while the man was asleep, and very slight exertion or strain would have been sufficient to bring about a rupture. The County Court Judge found that the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal, and held upon the authorities that this was an accident within the meaning of the Act. His decision was upheld both by the Court of Appeal and the House of Lords:
"No doubt the ordinary accident," said Lord Loreburn, L.C. "is associated with something external: the bursting of a boiler or an explosion in a mine, for example. But it may be merely from the man's own miscalculation, such as tripping and falling. Or it may be due both to internal and external conditions, as if a seaman were to faint in the rigging and tumble into the sea. I think it may also be something going wrong within the human frame itself, such as straining of muscle or the breaking of a blood vessel. If that occurred when he was lifting a weight, it would properly be described as an accident. So, I think, rupturing an aneurism when tightening a nut with a spanner may be regarded as an accident." With regard to Lord Macnanghten's definition of an accident being "an unlooked for mishap or untoward event which is not expected or designed" it was said that an event was unexpected if it was not expected by the man who suffered it, even though everyman of commonsense who knew the circumstances would think it certain to happen."
23. In a recent decision of this Court in Shakuntala Chandrakant Shreshti (supra), the factors to be established to prove that an accident has taken place have been culled out and stated as under in paragraph 28: "28. 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"
24. In Malikarjuna G. Hiremath V. Branch Manager Oriental, Oriental Insurance Co. Ltd. and another reported in AIR 2009 SC 2019 the principles to attract Secetionof the Workmen's Compensation Act have been stated as under in paragraph 14:
"14. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn's case (supra) in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:
1) There must be a casual connection between the injury and the accident and the accident and the work done in the course of employment.
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.
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 workman to succeed, but the same would depend upon the fact of each case."
25. The Madhya Pradesh High Court in Smt. Sundarbai V. The General Manager, Ordnance Factory, Khamaria, Jabalpur reported in 1976 Lab I.C. 1163 in paragraph 10 the principles have been culled out as under:
"10. On a review of the authorities, the principles insofar as relevant for our purposes may be stated as follows:
(A) Accident means an untoward mishap which is not expected or designed by the workman. "Injury" means physiological injury.
(B) "Accident" and "injury" are distinct in cases where accident is an event happening externally to a man; e.g. when a workman falls from a ladder and suffers injury. But accident may be an event happening internally to a man and in such cases "accident" and "injury" coincide. Such cases are illustrated by bursting of an aneurism, failure of heart and the like while the workman is doing his normal work.
(C) Physiological injury suffered by a workman due mainly to the progress of disease unconnected with employment, may amount to an injury arising out of and in the course of employment if the work which the workman was doing at the time of the occurrence of the injury contributed to its occurrence.
(D) The connection between the injury and employment may be furnished by ordinary strain of ordinary work if the strain did in fact contribute to or accelerate or hasten the injury.
(E) The burden to prove the connection of employment with the injury is on the applicant, but he is entitled to succeed if on a balance of probabilities a reasonable man might hold that the more probable conclusion is that there was a connection."
26. Again in yet another celebrated decision of this Court in Ibrahim Mahmmod Issak (supra) this Court has set down the principles applied in such cases as under in paragraph 5:
"5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it." The words "arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered." In other words there must be a casual relationship between the accident and the employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Railway Co. v. Highley, Lord summer laid down the following test for determining whether an accident "arose out of the employment." (Emphasis added)
27. Applying the various principles laid down in the above decisions to the facts of this case, we can validly conclude that there was CAUSAL CONNECTION to the death of the deceased with that of his employment as a truck driver. We cannot lose sight of the fact that a 45 years old driver meets with his unexpected death, may be due to heart failure while driving the vehicle from Delhi to a distant place called Nimiaghat near Jharkhand which is about 1152 kms. away from Delhi, would have definitely undergone grave strain and stress due to such long distance driving. 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 dependent solely upon his physical and mental resources & endurance, there was every reason to assume that the vocation of driving was a material contributory factor if not the sole cause 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 to the nature of employment indulged in with his employer which was in the course of such employer's trade or business.
(Emphasis supplied)
18. In the instant case, the appellants' son was a tanker driver and was engaged to drive the tanker for long distance and it was also proved by the claimants that he had been working under stressful work conditions, that fact having been admitted by the employer, itself/himself.
19. In view of above, the questions of law raised in the instant appeal are answered in favour of the claimants-appellants and against the respondents.
20. Accordingly, the present appeal is allowed and the matter is remitted to the Commissioner, Employees' Compensation, Meerut Region, Meerut to decide the petition/application of the claimants by following the observation made hereinabove.
21. The learned Commissioner, Employees' Compensation is directed to complete the proceeding expeditiously within a period of six months from the date of production of certified copy of this order.
Order Date :- 31.7.2018 A.Kr.*