IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA BETWEEN M.F.A.NO.1898/2016 (WC) THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE SUMANGALA COMPLEX OPPOSITE TO HDMC, LAMINGTON ROAD HUBLI-58020 REPRESENTED BY ITS DEPUTY MANAGER REPRESENTING THE MANAGER, M/S. THE ORIENTAL INSURANCE CO., LTD CHIKMAGALURU.
(BY SRI. SURESH K, ADV.) AND 1. SMT. VARIJA W/O LATE SRI. C.ANANDA KUMAR AGED ABOUT 39 YEARS, R/O. CHIKKANAGAUNDI MANE, HARANDUR POST KOPPA TALUK 577 126.
2. KUMAR NITHIN AGED ABOUT 14 YEARS, C/O SMT. VARIJA 3. KUM.RASHIMITHA AGED ABOUT 13 YEARS, C/O SMT. VARIJA ... APPELLANT NOS. 2 AND 3 ARE R/O CHIKKANAGUNDI MANE HARANDUR POST KOPPA TALUK REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. VARIJA 4. MANAGER MAVINAKERE ESTATE KALASA POST 577 124.
... RESPONDENTS (BY SRI. SHRIPAD V. SHASTRI, ADV. FOR R1-R3 SRI. P. D. VISHWANATH, ADV. FOR R4) THIS MFA IS FILED U/S 30(1) OF EMPLOYEE'S COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED:03.12.2015 PASSED IN ECA.NO.8/2014 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE, CHIKKAMAGALURU, AWARDING COMPENSATION OF RS.5,11,946/- WITH INTEREST @ 12% P.A. AFTER 30 DAYS OF ACCIDENT TILL PAYMENT.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present appeal is filed by the Insurance Company against the judgment and award dated 03.12.2015 made in E.C.A.No. 8/2014 on the file of the II Addl. Senior Civil Judge and JMFC, Chikkamagaluru, thereby awarding total compensation of Rs.5,11,946/- along with interest at 12% per annum after the expiry of 30 days from the date of accident till the date of payment. The appellant – Insurance Company has challenged the liability fastened on it.
2. The parties are referred as per their ranking before the Tribunal.
3. A claim petition was filed by claimants who are the legal representatives of deceased Anandakumar claiming compensation. They contended that the 1st claimant is the wife and claimants 2 and 3 are the children of deceased. The case of the claimants is that on 05.08.2009, Anandakumar died due to heart attack during the course of employment under the 1st respondent and the deceased was aged about 45 years and was earning monthly wages of Rs.7,000/-. They further contended that since the 1st respondent had workmen compensation policy for all the employees, respondents 1 and 2 were jointly and severally liable to pay compensation to the claimants.
4. In response to the notice issued, 1st respondent filed objections. He admitted the entire case of the claimants and stated that he used to pay Rs.6,157/- as monthly wages to the deceased. He further contended that he had made insurance policy with the 2nd respondent to all the employees and as such 2nd respondent is liable to pay compensation.
5. The 2nd respondent also filed objections denying the averments made in the claim petition and contended that there is no nexus between the heart attack and his employment. It is further contended that the deceased Anandkumar is a staff worker and as such he does not come under the definition of employee as defined under the Workmen’s Compensation Act, 1923 (for short ‘the Act’). Alternatively, the 2nd respondent admitted that it has issued Workmen’s Compensation Policy in the name of the 1st respondent and that was existing during the alleged incident and the liability of the respondent, if any is governed by the terms and conditions of insurance policy. The 2nd respondent also disputed the monthly wages of the deceased and sought for dismissal of the claim petition.
6. Based on the aforesaid pleadings, the Commissioner for Workmen’s Compensation framed the following issues:
1. ªÀÄÈvÀ D£ÀAzÀ PÀĪÀiÁgÀ ¢£ÁAPÀ: 06-08-2009 gÀAzÀÄ 1£Éà ¥ÀæwªÁ¢AiÀĪÀgÀ §½ PÉ®¸À ¤ªÀð»¸ÀÄwÛzÁÝUÀ PÉ®¸ÀzÀ ¸ÀªÀÄAiÀÄzÀ°è PÉ®¸À¢AzÁzÀ ªÀÄÈvÀ¥ÀnÖgÀÄvÁÛgÉAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
2. ªÀÄÈvÀ¤UÉ C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è 45 ªÀµÀð ªÀAiÀĸÁìVzÀݪÀÅ JAzÀÄ ºÁUÀÆ ¥ÀæwªÁ¢ 1 EªÀgÀÄ wAUÀ½UÉ gÀÆ.700-00 ªÉÃvÀ£À ¸ÀAzÁAiÀÄ ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
3. ¥ÀæwªÁ¢UÀ¼ÀÄ ¥ÀjºÁgÀzsÀ£À, §rØ, zÀAqÀ PÀÆqÀ®Ä ¨ÁzÀÀågÉÃ?
4. CfðzÁgÀgÀÄ vÁªÀÅ ªÀÄÈvÀ£À CªÀ®A©vÀgÉAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
5. F §UÉÎ DzÉñÀªÉãÀÄ?
7. In order to prove the case of claimant, 1st claimant – wife of deceased examined herself as P.W.1 and another witness as P.W.2 and marked four documents as Exs. P1 to P4. On the other hand, 2nd respondent examined its officials as R.Ws. 1 and 2 and got marked four documents as Exs. R1 to R4.
8. The Commissioner for Workmen’s Compensation considering both oral and documentary evidence recorded a finding that, the deceased Anandakumar died on 05.08.2009 due to heart attack arising out of and during the course of employment and the claimants have also proved that as on the date of accident, the deceased was aged about 45 years and he was drawing monthly wages of Rs.7,000/- per month and the claimants are entitled for compensation as they are dependents of deceased. Accordingly, the Commissioner for Workmen’s Compensation proceeded to award compensation in a sum of Rs.5,11,946/- along with interest at 12% per annum after one month from the date of accident till the date of payment. Hence, the present appeal is filed by the Insurance Company.
9. The owner or the claimants have not filed any appeal against the impugned judgment and award passed by the Tribunal.
10. This Court while admitting the appeal on 10.07.2019 framed the following issues:
a) Whether the Commissioner for Workmen Compensation/Tribunal is justified in awarding a total compensation of Rs.5,11,946/- with interest at 12% p.a. when the deceased was working as a staff-worker under respondent No.1 within the meaning of `employee’?
b) Whether the Commissioner for Workmen Compensation / Tribunal is justified in taking the monthly wages of the deceased at Rs.6,157.27 when the accident occurred on 05.08.2009 in view of the provisions of Section 4(1) Explanation-II of the Employees Compensation Act, 1923, in the facts and circumstances of the present case?
11. I have heard the learned counsel for the parties to the lis.
12. Sri. Suresh. K., learned counsel for the Insurance Company contended that the Commissioner for Workmen’s Compensation is not justified in awarding compensation to a staff worker, who does not come under the definition of either ‘Workman’ or ‘Employee’ under the provisions of the Workmen’s Compensation Act or the Employee’s Compensation Act. He further contends that admittedly the accident occurred on 05.08.2009. The Commissioner for Workmen’s Compensation proceeded to take the income of the deceased at Rs. 6157.27 contrary to the provisions of Section 4(1) Explanation-II of the Act. Therefore, he sought to allow the appeal.
13. Per contra, Sri. Shripad V. Shastri, learned counsel for respondent Nos. 1 to 3 and Sri. P. D. Vishwanath, learned counsel for respondent No.4 sought to justify the impugned judgment and award passed by the Commissioner for Workmen’s Compensation. However, both the counsel contended that in terms of the policy issued as per Annexure-R4, risk covers for all the employees including the deceased. Therefore, the Tribunal rightly awarded compensation in favour of the claimants. Therefore, sought to dismiss the appeal.
14. Having heard the learned counsel for the parties, it is an undisputed fact that the deceased Anandakumar was working under the 1st respondent as staff worker and he died on 05.08.2009 due to heart attack arising out of and during the course of employment. The 1st respondent who has filed objections before the Commissioner for Workmen’s Compensation has categorically admitted the employment of the deceased and has also admitted that he used to pay Rs.6,157/- as monthly wages. It is also not in dispute that the 1st respondent has insured for all the employees with the 2nd respondent including the deceased as per Ex.R.4 – Policy.
15. Though learned counsel for the appellant contended that the staff worker does not come under the definition of either ‘Workman’ or ‘Employee’ under the provisions of the Workmen’s Compensation Act or the Employee’s Compensation Act, the fact remains that Ex.R.4 policy made by the 1st respondent with the 2nd respondent for all the employees covers the risk as regards the deceased as well. Therefore, the contention of the learned counsel for the appellant cannot be accepted.
16. In an identical circumstance, in the case of MANAGING DIRECTOR, KARNATAKA STATE ROAD TRANSPORT CORPORATION AND ANTOHER vs. SMT. JAYALAKSHMI AND OTHERS – ILR 2014 KAR 2067, this Court while considering the provisions of Section 3 of the Act has held that the claimants are entitled to compensation when the death arises during the course of employment. The relevant paragraphs of the said judgment is extracted hereunder:
“13. In the matter on hand, admittedly the workman was driver working in Karnataka State Road Transport Corporation. The Conductor of the bus – PW-2, who had slept along with the deceased workman at the time of incident in the bus, has specifically deposed before the Commissioner that the deceased informed the officials of the appellant – Corporation in the morning of 6.10.2006 at the time of reporting for duty itself that he is having chest pain and that he is not able to drive the bus; despite the same, the officials of the appellant – Corporation insisted the driver that he should drive the vehicle on that day because of lack of drivers strength on that particular day. The officials of the appellant – Corporation insisted that the deceased shall complete the trip. Because of such pressure by the officials, the deceased went on duty during the relevant day. The very fact, that the deceased was made to drive the bus from morning till evening of 6.10.2006 on Route No.99 and that he was again instructed to drive the bus from the evening of 6.10.2006 till next day as aforementioned on the route Arasikere- Shimoga-Mysore-Arasikere, clearly reveals that the death has occurred while he was on duty. It is not open for the driver to leave the bus at Shimoga bus station and come back to his home at Arasikere which is about more than 150 kilometers fromShimoga. Since the deceased was entrusted with the bus and as he was directed by the higher officials to drive back the bus from Shimoga to Mysore at 4 a.m. on the next day i.e., 7.10.2006, the argument of the learned counsel for appellants that the death was not while the deceased was on duty, cannot be accepted. The work was entrusted to the deceased at 8 a.m. on 6.10.2006 and it was to continue till the next day evening (i.e., approximately for about 36-40 hours) though there was a short gap of about 6 to 7 hours at Shimoga. As is clear from the evidence of PW-2, the deceased was suffering from headache, chest pain when he reached Shimoga from Mysore on the night of 6.10.2006. Immediately he went to medical shop and purchased some pills and consumed the same for relief from headache. Unfortunately, the deceased suffered massive heart attack while asleep in the bus during the night intervening between 6.10.2006 and 7.10.2006. Hence the Commissioner for Workmen’s Compensation is justified in concluding that the death was direct result of continuous and heavy work entrusted to the deceased and that the deceased died during the course of duty. It is the specific evidence of PW-2 that in the morning of 6.10.2006 itself the deceased had complained that he is suffering from chest pain. Despite the same, the officials of the Corporation forced the deceased to drive the bus because of dearth of drivers’ strength on that day. Such evidence of PW-2 – Conductor is not even controverted in the cross- examination. On the other hand in the cross- examination PW-2 has denied the suggestion of the appellant – Corporation that the work undertaken by the deceased was not strenuous. From the aforementioned uncontroverted evidence of PW-2, it is clear that the deceased was suffering from stress and strain because of heavy pressure of work on that day.
14. In the matter on hand, the stress and strain suffered by the deceased did mainly contribute to or accelerate the injury. If the deceased were to take rest on 6.10.2006 without attending the work, probably he would have saved his life. But he was forced to work since morning of 6.10.2006. When he reached Shimoga during night of 6.10.2006, he was completely exhausted and immediately he took some pills. Unfortunately, he lost his life while in sleep. Thus the case on hand is the finest example relating to direct connection between injury and employment and loss of life due to strain of ordinary work. The stress & strain did contribute to and accelerate the injury (see the judgment in the case of JYOTHI ADEMMA vs. PLANT ENGINEER, NELLORE – (2006)5 SCC 513)}.
15. In the cross-examination, it is also brought out that since two weeks prior to his death, the deceased was suffering from chest pain. The post-mortem report amply makes it clear that the death was due to cardiac failure as a result of coronary insufficiency consequent to chronic coronary artery disease. Therefore the circumstances as brought out by the claimants clearly reveal that the death was caused as a result of failure of the heart which is because of strain and stress of the work. Stress and strain has resulted in sudden heart failure and the death has occurred during the course of employment. The pre-existing heart condition of the deceased was aggravated by the strain of work of the deceased and the same has resulted in his death.
16. Sri D’Sa sought to contend that the deceased driver died naturally i.e., due to heart attack. But the material on record amply reveals that the workman was forcibly engaged to work on particular day which accelerated his death. From the evidence available on record, it is clear that the workman had died of heart attack; there being a pre-existing heart condition which was aggravated by the strain of the work of the deceased and the same has resulted in his death. The death of the workman was not due to the disease from which he was suffering, but on account of factors coupled with employment. Aforementioned facts have led the Commissioner to conclude that the death occurred as consequence of and in the course of employment.
Hence the Commissioner for Workmen’s Compensation is justified in awarding compensation. Accordingly, no interference is called for.
The question of law is answered accordingly.
Appeal fails and the same stands dismissed”
17. It is an undisputed fact that the accident occurred on 05.08.2009 prior to the amendment of the Act. Under the provisions of Explanation –II of Section 4(1) of the Act, monthly wages of the workman was fixed at Rs.4,000/-. The Commissioner for Workmen’s Compensation has proceeded to take the monthly wages at Rs.6,157/- of the deceased ignoring the said provision. Hence, income of the deceased has to be taken as Rs.4000/-. Accordingly, the compensation payable to the claimants has to be calculated as under:
Rs.4000/- x 50% = Rs.2000/-
Rs.2000/- x 166.29 x 100 = Rs.3,32,580/-
18. For the reasons stated above, the substantial questions of law raised in the present appeal have to be answered in negative holding that the Tribunal is not justified in awarding the compensation of Rs.5,11,946/- along with interest at 12% per annum. Hence, the judgment and award passed by the Tribunal has to be modified.
19. In view of the above, the appeal filed by the Insurance Company is allowed in part. Impugned judgment and award passed by the Commissioner for Workmen’s Compensation dated 03.12.2015 in E.C.A.No.8/2014 is modified. The claimants are entitled to compensation of Rs.3,32,580/- along with interest at 12% per annum after one month from the date of accident till realization.
20. The amount in excess, if any deposited by the 1st respondent / 4th respondent herein and the Insurance Company after payment of compensation awarded by the Court has to be adjusted and refunded to them in accordance with law.
Sd/- JUDGE VP