National Insurance Company Ltd. Vs. Beena Devi and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/768739
SubjectLabour and Industrial
CourtRajasthan High Court
Decided OnJan-23-2002
Case NumberS.B. Civil Misc. Appeal No. 960 of 2001
Judge H.R. Panwar, J.
Reported inRLW2003(1)Raj499
ActsWorkmen's Compensation Act, 1923 - Sections 3 and 30;
AppellantNational Insurance Company Ltd.
RespondentBeena Devi and ors.
Appellant Advocate Sanjeev Joharim, Adv.
Respondent Advocate Manish Pitalia, Adv.
DispositionAppeal dismissed
Cases ReferredBhagubai v. General Manager
Excerpt:
- - 6. she has categorically stated that the owner of the said truck clearly instructed her husband not to leave the truck unattended while it is loaded with the goods. 6 as well as the appellant-insurer are liable for the payment of compensation. the test in such a situation would be who would fail if no evidence is led.panwar, j.1. this appeal is directed against the judgment and award dt. 30.11.2000 passed by learned commissioner, workmen's compensation, chittorgarh (hereinafter referred to as 'the commissioner') in w.c. case no. 6/98, whereby the commissioner awarded a sum of rs. 1,35,560/- as compensation in favour of respondent-claimants no. 1 to 5 ((hereinafter referred to as 'the claimants') and against respondent no. 6 and the appellant national insurance company ltd. (hereinafter referred to as 'the appellant-insurer'). 2. i have heard learned counsel for the parties and perused the judgment and award impugned. 3. it is contended by the learned counsel for the appellant that since the death of pritam singh was caused because of over exertion, which resulted in ailment, therefore, such death of deceased pritam singh cannot be said to be due to any personal injury caused to the deceased by an accident arising out of and in the course of employment. it is further contended that the commissioner fell in error in holding the appellant-insurer liable for compensation as on the relevant date of occurrence, deceased pritam singh had not a valid driving licence to drive the vehicle involved in the accident. 4. i have given my thoughtful consideration to the submissions made at the bar. it is not in dispute that deceased pritam singh was engaged as a truck driver on truck no. hr-29/b-0718, which was owned by respondent no. 6, arvinder singh and was under a valid insurance with the appellant-insurer for the period commencing from 8.1.1997 to 7.1.1998. the owner of the truck has not disputed regarding the deceased being in his employment. on 24th and 25th, august, 1997 and prior to that deceased pritam singh was engaged as a driver of the said truck and he died in the course of employment on 25.8.1997 while he was coming along with the said truck from banglore to delhi. the said truck was loaded with the goods booked from banglore to delhi and he died on the way while in the course of employment. the employer has not disputed the monthly salary which used to be paid to the deceased at the rate of rs. 3000/-. the only contention raised by the learned counsel for the appellant-insurer is that the death of pritam singh was not caused due to the employment injury in the course of employment. before the commissioner, respondent no. 1, smt. beena devi wife of the deceased, categorically stated on oath that her husband was driver on the truck owned by respondent no. 6 for last 10 years. he along with the said truck went from delhi to banglore and returned from banglore to delhi with the truck loaded with the goods being transported for the benefit of the owner and as such on the relevant date i.e. 24th and 25th august, 1997, her husband was in the employment of respondent no. 6. she has categorically stated that the owner of the said truck clearly instructed her husband not to leave the truck unattended while it is loaded with the goods. the owner did not provide her husband another driver to drive the said truck for covering such a large distance from delhi to banglore and back. as such, due to long drive by her husband, he suffered dysentery. the employer was intimated by her husband to make alternate arrangement but instead of making alternative arrangement, her husband was asked by the owner,respondent no. 6 not to leave the truck unattended while it is loaded with the goods and instigated upon him to drive the truck to the destination at delhi. this has resulted in his sudden death in the said truck. dead body of the deceased was found on the driving seat of the truck, which shows that the deceased was made to drive the truck against his health condition and as such, the cause of death was due to the constant long driving and over exertion in the course of employment of respondent no. 6 and as such, the death of pritam singh was caused while he was discharging his duty and, therefore, employer, respondent no. 6 as well as the appellant-insurer are liable for the payment of compensation. the claimants have also placed on record ex.1 police report, ex.2 post mortem report and various documents relating to the registration, insurance and permit of the vehicle on which deceased was driver. 5. pw.2 dr. kamal bhargava categorically stated on oath before the commissioner that excess work results in tension and adversely affects the working capacity of a person. pw.3 fateh lal also stated on oath that the deceased pritam singh was driver on the vehicle owned by arvinder singh, respondent no. 6. he stated that he was cleaner on the said truck for last two years and before that also, he was cleaner on the, said truck. on the relevant date of occurrence, there was only single driver, deceased pritam singh and he went from delhi to banglore and back. the trip from delhi to banglore and back consumes about 15 days and for those 15 days, it was deceased pritam singh alone who had driven the vehicle. thus, from the evidence produced by the claimants, it is established that the death of pritam singh was caused arising out of and in the course of employment as a driver on the said truck and because of excess driving at the insistence of the employer, he suffered dysentery and tension, which resulted into his death on the driving seat of the said truck, thus, deceased was compelled to be on the said truck despite his ill health on account of exertion. he was directed by his employer, respondent no. 6 not to leave the truck unattended as it was loaded with the goods. thus, death of pritam singh was caused while he was discharging his duties. hence, death of deceased has direct nexus with the employment and, therefore, in my considered opinion, the tribunal has rightly concluded that deceased pritam singh died while discharging his duties in the course of employment of respondent no. 6. 6. so far as plea raised by the appellant insurer with regard to the driving licence of the deceased is concerned, burden to prove that the driver of the vehicle did not have a valid licence, was on the appellant-insurer. 7. in narcinva v. kamat and anr. v. alfredo antonio doe martins and ors. (1), the hon'ble supreme court observed as under:- 'the insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. if a breach of a term of contract permits a party to the contract to not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. the test in such a situation would be who would fail if no evidence is led.' 8. thus, the contention raised by the learned counsel for the appellant insurer in this regard is without any foundation. 9. learned counsel for the appellant insurer relied on a judgment of the hon'ble karnataka high court in ananthamma v. managing director, cooperative spinning mill ltd. (2), wherein there was not any material placed on record from the claimants' side remotely suggesting that any injury was caused to the workman and on that basis, the court denied the compensation. the case in hand is totally on different facts and as has been noticed above, the claimants have established by legal evidence that the death of pritam singh had direct nexus with nature of the duties discharged by him during the course of employment. 10. in bhagubai v. general manager, central railway, v.t., bombay (3), the bombay high court while considering the case on similar fact, observed as under:- 'there must be a causal connection between the accident and the employment in order that the court can say that the accident arose out of the employment of the deceased. the cause contemplated is the proximate cause and not any remote cause. if the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place lie has to face a peril and the accident is caused by reason of that peril which he has to face then a causal connection is established between the accident and the employment.' 11. the case in hand is squarely covered by the observations made by the bombay high court in bhagubai v. general manager, central railway, v.t., bombay (supra). this appeal is under section 30 of the workmen's compensation act, 1923 (for, short 'the act'). the proviso to section 30 of the act provides in clear terms that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees. in the instant case, neither the appellant has formulated any substantial question of law in its memo of appeal nor there is any substantial question of law involved in this appeal. the only challenge made by the appellant is with respect to the disputed questions of facts and such finding of fact cannot be assailed in appeal under section 30 of the act. 12. no other point is pressed. 13. in view of the aforesaid discussion, there is no merit in this appeal. accordingly, it fails and is dismissed at the admission stage. no order as to costs.
Judgment:

Panwar, J.

1. This appeal is directed against the judgment and award dt. 30.11.2000 passed by learned Commissioner, Workmen's Compensation, Chittorgarh (hereinafter referred to as 'the Commissioner') in W.C. Case No. 6/98, whereby the Commissioner awarded a sum of Rs. 1,35,560/- as compensation in favour of respondent-claimants No. 1 to 5 ((hereinafter referred to as 'the claimants') and against respondent No. 6 and the appellant National Insurance Company Ltd. (hereinafter referred to as 'the appellant-insurer').

2. I have heard learned counsel for the parties and perused the judgment and award impugned.

3. It is contended by the learned counsel for the appellant that since the death of Pritam Singh was caused because of over exertion, which resulted in ailment, therefore, such death of deceased Pritam Singh cannot be said to be due to any personal injury caused to the deceased by an accident arising out of and in the course of employment. It is further contended that the Commissioner fell in error in holding the appellant-insurer liable for compensation as on the relevant date of occurrence, deceased Pritam Singh had not a valid driving licence to drive the vehicle involved in the accident.

4. I have given my thoughtful consideration to the submissions made at the bar. It is not In dispute that deceased Pritam Singh was engaged as a truck driver on truck No. HR-29/B-0718, which was owned by respondent No. 6, Arvinder Singh and was under a valid insurance with the appellant-insurer for the period commencing from 8.1.1997 to 7.1.1998. The owner of the truck has not disputed regarding the deceased being in his employment. On 24th and 25th, August, 1997 and prior to that deceased Pritam Singh was engaged as a driver of the said truck and he died in the course of employment on 25.8.1997 while he was coming along with the said truck from Banglore to Delhi. The said truck was loaded with the goods booked from Banglore to Delhi and he died on the way while in the course of employment. The employer has not disputed the monthly salary which used to be paid to the deceased at the rate of Rs. 3000/-. The only contention raised by the learned counsel for the appellant-insurer is that the death of Pritam Singh was not caused due to the employment injury in the course of employment. Before the Commissioner, respondent No. 1, Smt. Beena Devi wife of the deceased, categorically stated on oath that her husband was driver on the truck owned by respondent No. 6 for last 10 years. He along with the said truck went from Delhi to Banglore and returned from Banglore to Delhi with the truck loaded with the goods being transported for the benefit of the owner and as such on the relevant date i.e. 24th and 25th August, 1997, her husband was in the employment of respondent No. 6. She has categorically stated that the owner of the said truck clearly instructed her husband not to leave the truck unattended while it is loaded with the goods. The owner did not provide her husband another driver to drive the said truck for covering such a large distance from Delhi to Banglore and back. As such, due to long drive by her husband, he suffered dysentery. The employer was intimated by her husband to make alternate arrangement but instead of making alternative arrangement, her husband was asked by the owner,respondent No. 6 not to leave the truck unattended while it is loaded with the goods and instigated upon him to drive the truck to the destination at Delhi. This has resulted in his sudden death in the said truck. Dead body of the deceased was found on the driving seat of the truck, which shows that the deceased was made to drive the truck against his health condition and as such, the cause of death was due to the constant long driving and over exertion in the course of employment of respondent No. 6 and as such, the death of Pritam Singh was caused while he was discharging his duty and, therefore, employer, respondent No. 6 as well as the appellant-insurer are liable for the payment of compensation. The claimants have also placed on record Ex.1 police report, Ex.2 post mortem report and various documents relating to the registration, insurance and permit of the vehicle on which deceased was driver.

5. PW.2 Dr. Kamal Bhargava categorically stated on oath before the Commissioner that excess work results in tension and adversely affects the working capacity of a person. PW.3 Fateh Lal also stated on oath that the deceased Pritam Singh was driver on the vehicle owned by Arvinder Singh, respondent No. 6. He stated that he was cleaner on the said truck for last two years and before that also, he was cleaner on the, said truck. On the relevant date of occurrence, there was only single driver, deceased Pritam Singh and he went from Delhi to Banglore and back. The trip from Delhi to Banglore and back consumes about 15 days and for those 15 days, it was deceased Pritam Singh alone who had driven the vehicle. Thus, from the evidence produced by the claimants, it is established that the death of Pritam Singh was caused arising out of and in the course of employment as a driver on the said truck and because of excess driving at the insistence of the employer, he suffered dysentery and tension, which resulted into his death on the driving seat of the said truck, Thus, deceased was compelled to be on the said truck despite his ill health on account of exertion. He was directed by his employer, respondent No. 6 not to leave the truck unattended as it was loaded with the goods. Thus, death of Pritam Singh was caused while he was discharging his duties. Hence, death of deceased has direct nexus with the employment and, therefore, in my considered opinion, the Tribunal has rightly concluded that deceased Pritam Singh died while discharging his duties in the course of employment of respondent No. 6.

6. So far as plea raised by the appellant insurer with regard to the driving licence of the deceased is concerned, burden to prove that the driver of the vehicle did not have a valid licence, was on the appellant-insurer.

7. In Narcinva V. Kamat and Anr. v. Alfredo Antonio Doe Martins and Ors. (1), the Hon'ble Supreme Court observed as under:-

'The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract to not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led.'

8. Thus, the contention raised by the learned counsel for the appellant insurer in this regard is without any foundation.

9. Learned counsel for the appellant insurer relied on a judgment of the Hon'ble Karnataka High Court in Ananthamma v. Managing Director, Cooperative Spinning Mill Ltd. (2), wherein there was not any material placed on record from the claimants' side remotely suggesting that any injury was caused to the workman and on that basis, the court denied the compensation. The case in hand is totally on different facts and as has been noticed above, the claimants have established by legal evidence that the death of Pritam Singh had direct nexus with nature of the duties discharged by him during the course of employment.

10. In Bhagubai v. General Manager, Central Railway, V.T., Bombay (3), the Bombay High Court while considering the case on similar fact, observed as under:-

'There must be a causal connection between the accident and the employment in order that the court can say that the accident arose out of the employment of the deceased. The cause contemplated is the proximate cause and not any remote cause. If the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place lie has to face a peril and the accident is caused by reason of that peril which he has to face then a causal connection is established between the accident and the employment.'

11. The case in hand is squarely covered by the observations made by the Bombay High Court in Bhagubai v. General Manager, Central Railway, V.T., Bombay (supra). This appeal is under Section 30 of the Workmen's Compensation Act, 1923 (for, short 'the Act'). The proviso to Section 30 of the Act provides in clear terms that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees. In the instant case, neither the appellant has formulated any substantial question of law in its memo of appeal nor there is any substantial question of law involved in this appeal. The only challenge made by the appellant is with respect to the disputed questions of facts and such finding of fact cannot be assailed in appeal under Section 30 of the Act.

12. No other point is pressed.

13. In view of the aforesaid discussion, there is no merit in this appeal. Accordingly, it fails and is dismissed at the admission stage. No order as to costs.