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The New India Assurance Co. Ltd., Represented by its Authorised Signatory, Hubli v/s Shama Vittu Kolekar & Others

    MFA. No. 22966 of 2013 (WC)

    Decided On, 28 June 2021

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE P. KRISHNA BHAT

    For the Appellant: R.R. Mane, Advocate. For the Respondents: R1-R4, Raghavendra Purohit, Dinesh M. Kulkarni, Advocates.



Judgment Text

(Prayer: This MFA is filed Under Section 30(1)(A)(AA) of the Workmen’s Compensation Act, 1923 praying to set aside the judgment and order dated 25.04.2013 passed by the court of the Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division No.2, Belgaum, in WCA/SR No.117/2011 by allowing this appeal.)

1. This is insurer’s appeal calling in question the legality of the award dated 25.04.2013 in WCA SR No.117/2011 passed by the learned Labour Officer and Commissioner for Workmen’s Compensation, Sub Division II, Belgaum (for short “the Commissioner”).

2. Brief facts are that one Santosh Shama Vittu Kolekar was working as a cleaner in lorry bearing registration No.MH- 07/793 owned by respondent No.1-Sri. Gajanan Kashinath Mayekar and insured with the appellant herein. The claimants are parents and siblings of the deceased. It is stated that on 14.12.2009 while he was proceeding in the said truck, when he reached near Madhukol near Belagavi, he collapsed in the place where he was sitting in the lorry and when he was shifted to the hospital, the medical officer pronounced him dead.

3. During the claim proceedings, respondent No.1 insured filed his written statement admitting all the averments except the wages claimed by the claimants. Respondent No.2 filed its separate written statement and denied any liability to pay the compensation.

4. During the enquiry, claimant No.1 examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.7. Respondents got marked the policy of insurance as Ex.R2(1).

5. Upon consideration of the materials produced and evidence let in, learned Commissioner recorded a finding that employer-employee relationship between respondent No.1 and the deceased was established and further that the incident resulting in the death of the deceased had taken place in the course of and arising out of the employment. Learned Commissioner also recorded a finding that deceased was aged 19 years 10 months and he was earning Rs.4,000/- by way of wages per month. By applying appropriate relevant factor, he awarded compensation of Rs.4,45,420/- with interest thereon at 12% per annum.

6. Learned counsel appearing for the appellant-insurer vehemently contends that a substantial question of law arises for consideration. He submits that even though the deceased who was a cleaner had died in the lorry itself, the materials produced before the learned Commissioner would go to show that there is no causal connection between the death and the employment. In this connection, he drew my attention to Ex.P.5, which is the postmortem examination report, as per which death had taken place on account of respiratory failure due to massive pleural effusion suffered by the deceased. He, therefore, submits that the finding of the learned Commissioner is wholly illegal and it is liable to be interfered with. In this behalf, he placed reliance on the decision of the Hon’ble Supreme Court reported in (2007) 11 SCC 668 (Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali and another).

7. Learned counsel appearing for the claimants, on the other hand, submitted that the materials produced before the learned Commissioner clearly showed that deceased was proceeding in the lorry in which he was employed as a cleaner at the time of his death. He further submitted that on account of extreme stress attached to the work of a cleaner of lorry, deceased Santosh Kolekar had died by suffering massive pleural effusion and therefore, there is causal connection between the death of the deceased and his employment as a cleaner. In this behalf he places reliance on following decisions.

* 2010 (4) KCCR 3023 (M/s.National Insurance Co. Ltd. vs. Zaheeda Banu and others.

* 2013 ACJ 526 (Param Pal Singh vs. National Insurance Co.Ltd. and another)

* HCR 2019 Kant 234 (National Insurance Co. Ltd., vs. Smt.Renukamma)

8. I have given my anxious consideration to the submissions made on both sides and I have perused the records. There is no dispute about the fact that deceased Santosh Kolekar was working as a cleaner in lorry bearing registration No.MH- 07/793 owned by respondent No.1-Ganajana Kashinath Mayekar and insured with appellant-the New India Assurance Company Limited. There is also no dispute about the fact that deceased had died on 14.12.2009 at about 8.45 p.m. while he was proceeding in the said lorry. The medical record namely Ex.P.5, which is postmortem examination report, clearly shows that the deceased had died on account of respiratory failure due to massive pleural effusion. The medical officer who performed the postmortem examination also noted gross pulmonary oedema in both the lungs. He also noted that both the lungs were pinkish in colour and cut section showed exudates from alveoli.

9. This only shows that the deceased did not die due to heart attack as was sought to be contended before me on behalf of the claimants-respondents. It would further show that obviously the deceased was a young man aged about 20 or 21 years and was suffering from pre-existing condition and while he was proceeding in the lorry, the medical conditions culminated in his death on account of respiratory failure due to massive pleural effusion. Obviously this cause of death cannot be linked to his employment as a cleaner, which does not carry any precipitating conditions to aggravate his medical problem.

10. It is necessary to make a reference to the observation of the Hon’ble Supreme Court in a similar situation in Shakuntala Chandrashekhar Shreshti v. Prabhakar Maruti Garvali and another reported in (2007) 11 SCC 668 at para 26, 27, 28, 29, 36 to 42, which reads as follows:

“26. 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.

27. The deceased was traveling in a vehicle. The same by itself can not give rise to an inference that the job was strenuous.

28. Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf.

29. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefor can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard-and-fast rule can be laid down therefor.

30. xxxxx

31. xxxxx

32. xxxxx

33. xxxxx

34. xxxxx

35. xxxxx

36. Only because the cause of death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting in injury.

37. The nature of duty of the deceased was that of a helper. Per se that the duties would not be such which could cause stress or strain. If an additional duty was required to be performed by him, the same was required to be clearly stated.

38. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well-settled that for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question.

39. Section 30 of the said Act postulates an appeal directly to High Court if a substantial question of law is involved in the appeal.

40. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain. It was merely stated that he was working as a Khalasi in a truck which was going to Tavarewadi Village from Kolhapur to get the milk. The autopsy was conducted at Chandgad District Hospital. The driver Parasharam Chandrakant Shreshti admittedly brought him to hospital. He was his brother. The post mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day. From the post mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a causal connection between accident and serious injury so as to fulfill the requirements of the terms "out of employment". Indisputably, there has to be a proximate nexus between cause of death and employment. A stray statement made by Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly, she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination.

41. This vital aspect of the matter was required to be considered by the High Court so as to arrive at a finding as to how the said accident has arisen or not.

42. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record.”

11. The law is well settled that merely because death had taken place in the course of employment does not necessarily lead to drawing of further inference that it is arising from the employment. These two are altogether separate aspects. It is only when death took place in the course of employment as well as arising out of the employment, that is, when there is a causal connection between the death and the employment that the cause of action arises for award of compe

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nsation in this jurisdiction. As already referred to in the earlier part of the judgment, the death was on account of respiratory failure due to massive pleural effusion suffered by the deceased, which has no causal connection with his employment as a cleaner in the lorry. In that view of the matter, there is a substantial question of law arising in this case regarding causal connection between the death and the employment and since the finding recorded by the learned Commissioner is not based on evidence, it is perverse. Accordingly, I set aside the said finding of the learned Commissioner and consequently the appeal is entitled to be allowed. Hence, the following: ORDER The above appeal is allowed. The judgment and order dated 25.04.2013 passed by the learned Commissioner in WCA SR No.117/2011 insofar as the present appellant is concerned is set aside. The claim petition insofar as the appellant herein is concerned is dismissed. The amount in deposit before this Court shall be refunded to appellant-insurance company forthwith. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
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