Full Judgment
N.K. Mody, J.
1. Being aggrieved by the order dated 6.12.2000, passed by the Commissioner for Workmen's Compensation, Labour Court, Indore in Claim Case No. 16 of 1998 W.C.N.F. whereby, the claim petition filed by the appellants on account of death of Gurmukhsingh was dismissed, the present appeal has been filed. Appeal is admitted on the following substantial question of law:
Whether in the facts and circumstances of the case learned court below was justified in dismissing the claim petition filed by the appellants?
2. Short facts of the case are that appellants filed a claim petition before learned court below alleging that appellants are L.Rs. of deceased Gurmukhsingh who was aged 37 years and was working as driver on a tanker bearing registration No. MP 09-7402 which was owned by respondent No. 1 and one Sattu alias Satyanarayan s/o Madanlal and insured with respondent No. 2. It was alleged that deceased was earning Rs. 2,000 p.m. as salary and Rs. 50 per day as travelling allowance. Further case of the appellant was that on 7.12.1997 deceased Gurmukhsingh was on his duty on the tanker and left for Mumbai. It was further alleged that on 12.12.1997 when Gurmukhsingh was filling in the gas with Hindustan Petroleum Co. Ltd. at Chembur, Mumbai at that time Gurmukhsingh fell down in the office and sustained grievous injuries. Gurmukhsingh was brought to Sai Baba Karunalaya for his treatment where he died. It was alleged that Gurmukhsingh died during the course of his employment. Therefore, respondents are liable for payment of compensation as offending vehicle was insured with respondent No. 2. It was prayed that the claim petition filed by the appellant be allowed and compensation be awarded.
3. The claim petition was contested by both the respondents by filing separate written statement. So far as respondent No. 1 and one Sattu who happens to be brother of respondent No. 1 and was non-applicant No. 2 before the learned Tribunal are concerned, it was alleged that offending tanker is insured with respondent No. 2, therefore, in case of liability it is the respondent No. 2 insurance company, who is liable for payment of compensation.
4. In the written statement filed by the respondent No. 2 it has been alleged that Gurmukhsingh was not working as driver on the offending vehicle at the time of his death. It was alleged that cause of death was cardiac arrest which is having no nexus with the alleged employment. In the facts and circumstances, respondent No. 2 is not liable for payment of compensation and it was prayed that the claim petition be dismissed.
5. After framing of issues and recording of evidence, learned court below found that there was no accident and also there was no heart attack, the cause of death of Gurmukhsingh was head injuries and dismissed, against which the present appeal has been filed.
6. Learned Counsel for appellants argued at length and submits that since deceased Gurmukhsingh was in the employment of respondent No. 1 and offending vehicle was insured with respondent No. 2, therefore, appellants are entitled for compensation and learned court below committed error in dismissing the claim petition.
7. Learned Counsel for respondent No. 2 submits that after due appreciation of evidence on record, learned court below has found that there was no nexus between the employment and his death. It is further submitted that intimation was given by Harjeetsingh who is appellant No. 2 and is son of the deceased and also working as cleaner on the offending vehicle that Gurmukhsingh was patient of fits and since he fell down on grill, he suffered injuries, in the facts and circumstances no illegality has been committed by the learned court below in dismissing the claim petition. For this contention, the learned Counsel placed reliance on a decision of Hon'ble Apex Court in the matter of Jyothi Ademma v. Plant Engineer, Nellore Thermal Station : 2006 ACJ 2165 (SC), wherein in a case where workman died at workplace because of heart attack and widow claimed compensation on the plea that death was due to stress and strain closely linked with employment, Hon'ble Apex Court observed that:
(6) Under Section 3 (1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease from 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 death arose out of the employment and the employer would be liable.
8. From perusal of the record it is evident that deceased Gurmukhsingh, who was the driver of the offending tractor left for Mumbai on 7.12.1997 and he died on 12.12.1997, when he was filling in the gas in the tanker. To prove his case appellants have examined Nasim Bi, widow of the deceased, while respondent No. 1 who is the employer examined himself. From the post-mortem report, which is Exh. P4, the cause of death was falling down and sustained head injuries. There is nothing on record to show that deceased was suffering from any disease. As per the post-mortem report age of the deceased was 40 years. Thus, he was a young man. For making out a case for compensation the burden to prove that cause of death was arising out of and in the course of employment was on the appellants. To prove this fact appellants were required to establish that there was some causal connection between the death of the workman and the employment. The compensation can be refused only if the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease he dies of the disease as a result of wear and tear of the employment no liability would be fixed upon the employer.
9. In the present case, undoubtedly, the deceased who was a young man, went to Mumbai with a tanker for filling in the gas. There is nothing on record to show that what was the arrangement for his stay at Mumbai and also when he reached Mumbai. No evidence has been led by the respondents to prove that the deceased was suffering from any disease. In the matter of Jyothi Ademma : 2006 ACJ 2165 (SC), the facts of the case were quite distinguishable. In that case it was brought on record that deceased was suffering from chest disease and was previously being treated for such disease. It was also found from the evidence that the job of the deceased was only to switch on or off and the doctor also opined that there was no scope for stress or strain in his duties. In the present case not only any evidence was adduced by the respondents to prove that the deceased was suffering from any disease but also it is proved that deceased was on a strenuous job as he went to Mumbai with a tanker as driver and was to come back after filling in the gas. In absence of any evidence in rebuttal adduced by the respondents, this Court is of the view that the learned court below committed error in dismissing the claim petition.
10. In view of this, appeal filed by the appellants stand allowed. The order impugned herein is set aside, holding that the appellants are entitled for compensation as the injury caused to deceased was in the course of employment. Since learned court below has not assessed the amount to which appellants are entitled as compensation, therefore, this Court is left with no option except to remand the case to the learned court below with a direction to pass an appropriate order relating to the amount of compensation and interest and penalty.
11. With the aforesaid observations, appeal stands disposed of. No order as to costs.