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Principal Director, Electronics Service & Training Centre, Kaniya, Nainital v/s Sarojini Devi

    Appeal From Order No. 372 of 2010

    Decided On, 13 February 2019

    At, High Court of Uttarakhand

    By, THE HONOURABLE MR. JUSTICE LOK PAL SINGH

    For the Appearing Parties: Pankaj Miglani, Advocate.



Judgment Text

This appeal, under Section 30 of the Workmen's Compensation Act, has been preferred against the judgment and award dated 13.09.2010 passed by Workmen's Compensation Commissioner/Assistant Labour Commissioner, Haldwani in WCA No.65 of 2007 as Smt. Sarojini Devi vs. Principal Director, Electronic Service & Training Centre, whereby the appellant has been directed to pay a sum of Rs. 2,71,120/- within a month from the date of order.

2. Brief facts of the case are that respondent Smt. Sarojini Devi filed a claim petition before Workmen's Compensation Commissioner against the appellant stating that on 27.12.2002 due to excessive work load her husband i.e. Driver Nand Kishore fell ill during the course of employment, as a result of which he was admitted in the hospital where he died on 31.12.2001 due to heart failure. At the time of incident, the deceased was aged 55 years and was getting salary @ Rs. 4467/- per month. With these averments, claimant filed the claim petition and claimed compensation to the tune of Rs. 2,71,120/-, Rs. 97,502/- towards interest @ 12% per annum and penalty of Rs. 1,35,560/-. Appellant contested the claim petition and filed its written statement and denied the allegations made in the claim petition. It was alleged by the appellant that the claimant used to remain ill and was alcoholic. Due to illness, he was admitted in Government Hospital, Ramnagar on 27.12.2002 and thereafter was referred to Sushila Tewari Memorial Hospital, Haldwani where on 31.12.2002 he died during treatment. It is also alleged that as per the death certificate issued by the doctor, the deceased died due to heart attack. Appellant denied the allegation that there was excessive work load on the deceased. In support of claim petition, claimant got examined herself as PW1 and proved the contents of the claim petition and also filed certain documentary evidence. On behalf of opposite party-employer, Variksha Ram, Director was examined as DW1, who in his deposition stated that deceased Nand Kishore was posted as driver and had worked till 5 PM. He stated that deceased has not died during the course of employment; in fact, he has died due to heart attack. In cross-examination, this witness has stated that it is possible to have heart ailment due to excessive driving work. After the evidence led by the parties and hearing the parties, the learned Commissioner passed the impugned judgment and award.

3. This appeal has been admitted on the following substantial question of law:

"Whether the learned Workmen's Compensation Commissioner was justified in awarding the compensation to the claimant without there being any cogent proof of injury/death to be attributed during the course of employment?"

4. I have heard learned counsel for the parties and perused the entire record.

5. Learned counsel for the appellant would submit that the learned Workmen's Compensation Commissioner has erred in law by awarding compensation in favour of the claimant for the reason that, firstly death had not been occasioned during and in the course of employment; secondly, there is no nexus between the death and the employment; and thirdly there is no iota of evidence on record so as to show that the work which the deceased was doing i.e. driving contributed to his death. To buttress his arguments, learned counsel would place reliance upon following decisions of Hon'ble Apex Court:

i) Mallikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd. & Anr., (2009) AIR SC 2019

ii) Jyothi Ademma vs. Plant Engineer, (2006) AIR SC 2830

6. Their Lordships of Hon'ble Apex Court in Mallikarjuna G. Hiremath v. Branch Manager has held as under:

"18. In Mackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim Mohd. Issak, (1969) 2 SCC 607, this Court held:

"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 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 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 causal relationship between the accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of 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 accident 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."

7. Their Lordships of Hon'ble Apex Court in Jyothi Ademma vs. Plant Engineer, Nellore has held as under:

"6. Under Section 3(1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies as natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear, of the employment no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable."

8. On the strength of Jyothi Ademma's case (supra), learned counsel would submit that there is no iota of evidence that the deceased was suffering from any heart ailment and that his employment as driver contributed to or accelerated the death.

9. Admittedly, deceased was employed as driver with the appellant. It is the specific case of the claimant that due to excessive work load i.e. driving, deceased suffered severe heart attack which resulted into his death. It is also the specific case of the claimant that the death has occurred during and in the course of employment. On the other hand, it is the case of appellant that deceased has not died during the course of employment and in the present case there is no connection between the death and employment of the deceased. Though the allegations made in the claim petition has been denied by the appellant-employer but a perusal of record would reveal that the pleadings and evidence has not been specifically controverted by the employer. In cross-examination, DW1 Vriksha Ram has admitted that it is possible to suffer heart attack due to excessive driving work taken by the employer.

Furthermore, the claimant has deposed in her statement th

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at the deceased soon after coming from his duty, suffered heart attack, due to which he was admitted in the hospital. As regards the judgment cited by learned counsel for the appellant, the ratio of judgment is not applicable on the peculiar facts and evidence led by the parties. 10. In the light of aforesaid, this Court is of the considered opinion that the deceased suffered heart attack due to stress and strain of his job and his death arose out of the employment. As such, the learned Workmen's Compensation Commissioner is justified in awarding compensation to the claimant. 11. Consequently, appeal fails and is hereby dismissed. Substantial question of law is answered accordingly. 12. In the facts and circumstances, parties shall bear their own cost.
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