IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.6724/2010 (WC) Between:
Oriental Insurance Co Ltd., Srinivasa Mansion, No.364/1, 10th B Main road, III Block, Jayanagar, Bengaluru – 11 Now represented by its Regional Manager, Oriental insurance Co. ltd., Regional Office, No.44/45, leo Shopping Complex, residency Road Cross, Bengaluru – 560 025.
... Appellant (By Sri A.N.Krishna Swamy, Advocate) And:
1. Smt. Yasmeentaj, W/o Late Iqbal pasha @ Abbali, Now aged about 28 years 2. Maskanta, D/o Late Iqbal pasha @ Abbali, Now aged about 9 years 3. Sunrontaj, D/o Late Iqbal pasha @ Abbali, Now aged about 7 years 4. Mohammed Shafi Ahmed, F/o Late Iqbal pasha @ Abbali, Age: Major 5. Smt. Shashd Bi, W/o Late Mohammed Shafi Ahmed, Age: Major All r/a No.28, Beedi Employees’ Colony, Kengeri Satellite Town, Bengaluru.
6. Chand Pasha, S/o Syed Ismail, Major, R/o No.141, 7th Cross, New S R Nagar, Bengaluru – 30.
(By Sri M.Babu, Advocate for C/R1-3 (R2 & 3 are minors represented by R1) ... Respondents R4 & R5 (sd); R6 – Notice dispensed with vide order dated 31/07/2012) This Miscellaneous First Appeal is filed under Section 30(1) of W.C. Act, against the judgment dated 27.04.2010 passed in WCA/FC/CR-72(A)/2007 on the file of the Labour Officer and Commissioner for workmen Compensation, subdivision-4, Bangalore, awarding compensation of Rs.3,98,800/-.
This Appeal coming on for Final Hearing, this day, the Court delivered the following:
J U D G M E N T This appeal is preferred by the insurance company assailing the order passed by the Commissioner for workmen’s compensation whereby a sum of `3,98,800/- has been awarded to the claimants for the death of one Iqbal Pasha @ abbali.
2. I have heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents/claimants.
3. The claim petition was filed under the provisions of Workmen’s compensation Act (herein after referred to as ‘the Act’), seeking compensation for the death of one Iqbal Pasha @ abbali stating that while the deceased was driving an auto rickshaw on 17.06.2007 at about 12.30 a.m. and during the course of his employment, the said auto rickshaw, while giving way to the vehicle which was coming from the opposite direction, lost control as a result it was turtled and in the process, the deceased sustained multiple injuries and died. It is the further case of the claimants that deceased was aged about 30 years and he was earning a sum of Rs.4,000/- per month as salary and another `50/- as bata per day.
4. Before the Commissioner, the wife of the deceased was examined as PW-1. The owner of the auto rickshaw was examined as PW-2. Exs.P1 to P10 were marked in evidence on behalf of the claimants. The insurance company got examined RW-1 and Exs.R1 to R3 were marked.
5. The Commissioner after considering the evidence and material on record and after taking the income of the deceased at Rs.4,000/- per month and deducting 50% as per Section 4(1) of the Act and applying the relevant factor i.e. 199.40, awarded a total compensation of Rs.3,98,800/-with interest @ 12% from one month from the date of accident till its deposit.
6. The appeal was admitted by this Court to consider the following substantial question of law:
i. Whether the Commissioner for workmen’s compensation was justified in holding that the deceased sustained injuries in an accident occurred out of and in the course of employment and it comes within the meaning of Section 3 of the Workmen’s Compensation Act?
ii. Whether the claim petition filed by the claimants under Section 23 of the Workmen’s Compensation Act is maintainable?
iii. Whether the judgment and award passed by the Commissioner for Workmen’s Compensation Act is sustainable in law?
7. The learned counsel for the appellant would contend that the deceased died of heart attack i.e., due to coronary artery disease and the same could not be treated as an accident within the meaning of Section 3 of the Act and therefore, the Commissioner had no jurisdiction to grant compensation in respect of a death caused owing to heart attack. He submits that the order passed by the Commissioner is without jurisdiction and claimants are not entitled for any compensation in the facts and circumstances of the case. In support of his arguments, he placed reliance on the decision of the Hon’ble Apex Court in the case of SHAKUNTALA CHANDRAKANT SHRESHTI V. PRABHAKAR MARUTI GARVALI AND ANOTHER reported in 2007 (1) TAC 1 (S.C.) and JYOTHI ADEMMA V. PLANT ENGINEER, NELLORE AND ANOTHER reported in 2006 (3) TAC 8 (S.C).
8. Per contra, the learned counsel appearing for respondents/claimants would justify the order passed by the Commissioner contending that the deceased died during the course of his employment while he was driving the auto rickshaw and therefore, the Commissioner was justified in awarding compensation and the same is in accordance with law. He relied upon the judgment of this Court in the case of UNITED INDIA INSURANCE COMPANY LTD. VS. SMT. VARIJA AND OTHERS reported in ILR 2011 KAR 3915 and contends that even in the present case the cause of death of the deceased was due to cardiac failure, as a result of coronary artery disease. However, the cardiac arrest was on account of shock caused due to the accident. Accordingly, he prays to dismiss the appeal filed by the appellant.
9. It is not in dispute that the deceased was driving the auto rickshaw on 17.06.2007 and the said auto rickshaw met with an accident at about 12.30 a.m.
P.W.1 is the wife of the deceased. She has deposed that her husband was the driver of the passenger auto, working under the first respondent before the Commissioner. The owner of the auto rickshaw has been examined as PW-2. According to PW.2, deceased was working under him as a driver of the auto rickshaw bearing No. KA-05-C-3531 and he was being paid a salary of Rs.4,000/- per month and bata of Rs.50/- per day. There is nothing elicited in the cross examination so as to discard the said evidence. The claimants have thus established that the deceased was working under PW.2, as a driver of the auto rickshaw. Even otherwise there is no dispute with regard to the employee and employer relationship.
10. Ex.P.1 is the FIR, Ex.P.2. is the charge sheet and Ex.P.3 is the inquest report. Perusal of the same, goes to show that on 17.06.2007 in the mid night 12.30 a.m. when the deceased was driving the auto rickshaw bearing registration No.KA-05-C-3531, the said auto rickshaw turtled and the deceased got stuck under the auto rickshaw and died. The inquest report as well as the post mortem report goes to show that there were several injuries in the form of abrasion sustained by the deceased and the death was instantaneous.
11. The contention raised by the learned counsel for the appellant is that according to the final opinion which was obtained after histopathological examination, the death was due to cardiac failure as a result of coronary artery disease. Therefore, it is his contention that the death was on account of artery disease which had already existed and therefore, death is not on account of the accident.
12. On a careful perusal of the post mortem examination, the same would reveal that there was petechial hemorrhage to the heart. The deceased sustained as many as nine injuries all over the body. Admittedly there was an accident involving the auto rickshaw which was driven by the deceased and in the said accident he suffered the injuries which are shown in the post mortem report. This Court in the case of United India Insurance Company Ltd. Vs. Smt. Varija and others, considering the facts of the said case has observed that the deceased while trying to give way to the on coming vehicle, took the vehicle to the left side, the vehicle has gone over to the ditch and gone and hit the tree. This is sufficient reason to accept that at the relevant time, there was enough stress and strain which has caused the accident and the accident is the result for his death.
13. Considering the facts and circumstances of the present case and the documents produced and marked, particularly Ex. P1 to P3., it can be safely held that the deceased died in the course of his employment while he was driving the auto rickshaw. Merely because the cause of death is shown as ‘death is due to cardiac failure as a result of coronary artery disease’, it cannot be held that the deceased died solely on account of coronary artery disease and not on account of any accidental injuries or due to the accident particularly in the absence of the evidence of Doctor who issued the final opinion with regard to the cause of death.
14. In the judgment relied upon by the learned counsel for the appellant in Shakuntala Chandrakant Shreshti Vs. Prabhakar maruti Garvali and Another and Jyothi Ademma V. Plant Engineer, Nellore and another (supra), the facts are totally distinguishable from the facts of the present case. In Shakuntala Chandrakant Shreshti’s case (supra) the death was on account of cardiac arrest due to rupture of aortic aneurysm and there was no injuries found on the body of the deceased. It is a case where the deceased strongly developed chest pain while he was working as a cleaner in a vehicle and he was declared dead in the hospital. Further, in Jyothi Ademma’s case (supra) the deceased died at the work spot and the stand in the claim petition that the death was due to stress and strain closely linked with the employment of the deceased workmen which was attributable to the accident arising out of in the course of employment was negatived. It was observed by the Hon’ble Apex Court in the said decision that if the employment is a contributory cause or has accelerated the death, or if the death was not only due to the disease but also the disease coupled with the employment, then it can be a said that the death arose out of the employment and the employer would be liable. In the said case, the deceased was suffering from chest pain and was previously being treated for such disease and the Doctor had clearly opined that there was no scope for any stress or strain in his duties. However, in the present case as noted supra it is clearly established that the deceased died on account of the accident in the course of his employment while he was driving the auto rickshaw.
15. For the forgone reasons, the substantial questions of law raised are answered in favour of the claimants/respondents. Accordingly, the appeal lacks merit and the same is dismissed.
The amount in deposit before this court shall be transmitted to the concerned court.
Sd/- JUDGE DS