Branch Manager, National Insurance Company Ltd. v. Shahina & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2017/22ND BHADRA, 1939** **MFA.No. 83 of 2014 () ----------------------** **AGAINST THE ORDER/JUDGMENT IN WCC 12/2005 OF THE COMMISSIONER FOR EMPLOYEE'S COMPENSATION,KOLLAM DATED 30-03-2013** **APPELLANT(S)/APPELLANT/RESPONDENT NO 2:** **--------------------------------------** **THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD. PARAMESHWWARAN PILLAI BHAVAN,HOSPITAL ROAD,KOLLAM** **BY ADVS.SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA** ## **RESPONDENT(S)/RESPONDENTS/APPLICANTS 1,3 AND 4:** **-----------------------------------------------** ## **1. SHAHINA** - **W/O.JAYAPRASAD,ATTOOR KIZHAKETHIL,LEKSHMANA NAGAR,153,ULIYOCOVIL P.O,KOLLAM** ## **2. SHIJITHA(MINOR)** - **D/O.JAYAPRASAD,ATTOOR KIZHAKKETHIL,LEKSHMANA NAGAR 153,ULIYOCOVIL P.O,KOLLAM,REPRESENTED BY HIS MOTHER SHAHINA,THE 1ST RESPONDENT HEREIN** **3. THANKAMMA** **W/O.BHASKARAN,ATTOOR KIZHAKETHIL,LEKSHMANA NAGAR 153,ULIYOCOVIL P.O,KOLLAM** ## **R1&3 BY ADV. SRI.C.RAJENDRAN** **THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.HARILAL & A.M.BABU, JJ. .......................................... M.F.A (WCC) No.83 of 2014 ........................................... Dated 13[th] September, 2017** ## **JUDGMENT** ## **K.HARILAL, J.** The National Insurance Company Limited, the insurer in WCC 12/2005 on the file of the Commissioner for Workmen's Compensation, Kollam has come up in appeal challenging the judgment granting an amount of Rs.3,79,120/- to the respondents herein. The case of the applicants is that on 25.4.2004 at about 11.20 p.m when the deceased was driving an auto rickshaw bearing registration No. KL-02 F5378 he lost his control and hit on the divider and capsized. Immediately he was taken to District Hospital where he succumbed to the injuries on 1.5.2004 at 6.05 p.m. According to the applicants, the accident was arising out of and in the course of employment and thereby the first opposite party is liable to pay compensation for the death caused by the accident. Further it was averred that the deceased was aged 38 years at the time of accident and he was employed as driver of the auto rickshaw owned and possessed by the first opposite party. 2. The first opposite party resisted the said claim for compensation contending that the deceased was a neighbour 2 ## **M.F.A (WCC) No.83 of 2014** of the first opposite party and he has taken the auto rickshaw from him for travelling, as his own auto rickshaw was under repair. Later, the auto rickshaw met with an accident at Chinnakada. Further it was contended that the accident was not arising out of and in the course of employment. His alleged death on 1.5.2004 was not due to the said accident and death was caused by massive heart attack. The compensation claimed is highly exorbitant and he was not receiving any amount from him as an employee. Further it was contended that at any circumstance if the applicants are found liable to receive any compensation due to the alleged accident the second opposite party who was the insurer of the vehicle during the period of accident is liable to pay the compensation to the applicants. 3. The second opposite party also resisted the claim contending that the accident was not arising out of and in the course of employment. Further it was contended that the applicant had suffered a massive cardiac arrest and the same culminated in his death. There was absolutely no strain or stress or injury which caused to him in this regard and there is no connection between the death and accident. The amount 3 ## **M.F.A (WCC) No.83 of 2014** claimed by the applicants are exorbitant as the deceased was not drawing an amount of Rs.4,000/- per month as claimed by them. There was no proper entrustment of driving work by the first respondent and thus on that ground also the second opposite party is not liable to indemnify the first respondent. 4. On the aforesaid rival pleadings the applicants adduced both oral and documentary evidence which consists of Exts A1 to A14 and the oral testimony of AW1, the first applicant. But no evidence had been adduced by the opposite parties. After considering the evidence on record, the Commissioner for Workmen's Compensation had passed the impugned judgment granting an amount of Rs.3,79,120/- with 12% interest to the applicants. This appeal is filed challenging the legality and correctness of the findings of the Commissioner for Workmen's Compensation. 5. Heard the learned counsel for the appellant and the learned counsel for the respondents. 6. Even though the appeal was filed on various grounds challenging the legality and correctness of the findings of the Commissioner for Workmen's Compensation, the learned counsel for the appellant mainly contended that absolutely 4 ## **M.F.A (WCC) No.83 of 2014** there is no evidence to prove that causal connection between the accident and death. In other words, the death was not caused by the accident. According to him, in order to substantiate the said contention the learned counsel for the appellant drew our attention to the postmortem report. On the other hand, the learned counsel for the respondents advanced arguments to justify the findings of the court below that the accident was arising out of and in the course of employment. 7. In view of the arguments at the bar the question to be considered is whether the Commissioner for Workmen's Compensation is justified in finding that the death was arising out of and in the course of employment. Going by the impugned judgment it could be seen that the employeremployee relationship was also disputed by the first opposite party. But at the same time he admitted that the accident as alleged by the applicants occurred on 25.4.2004, while the deceased was driving auto rickshaw owned and possessed by the first opposite party. It is not disputed that the accident occurred as alleged by the applicants in the application and the injured died on 1.5.2004, while he was undergoing treatment in the District Hospital. As regards the denial of employer- 5 ## **M.F.A (WCC) No.83 of 2014** employee relationship we find that in so far as the first opposite party admits that the accident was occurred, while the deceased was driving his auto rickshaw, the burden is on him to prove that he was not his employee, when the accident occurred. But no evidence has been adduced to prove that he was not an employee and he has taken his auto rickshaw as a neighbour for traveling to Kollam town, when his auto rickshaw was under repair. In the absence of any evidence, to prove the said contention, the Compensation Commissioner is justified in drawing a presumption that the deceased was employed by the first applicant when the accident occurred. 8. The next question to be considered is whether the death was the result of the accident, which arose out of and in the course of employment, contemplated under Sec.3 of the Workmen's Compensation Act. In **AIR 2009 SC 2019 (Mallikarjuna G.Hiremath vs. Branch Manager, Oriental Insurance Co. Ltd & Another)** the Supreme Court has considered the scope and extent of the expression accident was 'arising out of ' and 'in the course of' employment as given below: Under S.3(1) it has to be established that there was some causal connection between the death of the workman and 6 ## **M.F.A (WCC) No.83 of 2014** his employment. If the workman dies a natural death because 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 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. 9. The proposition that can be culled out from the above decision is that the expression 'arising out of employment' means that there must be a causal relationship between the accident and the employment. If the accident has occurred on account of the risk which is an incident of employment, it has to be held that the accident has arisen out of the employment and in the course of employment. Similarly, where the injury sustained from accident was a contributory or accelerating cause which led to sudden death, it can be said that the death arose out of the employment and in the course of employment. 10. In the instant case, it is a case of the applicants that the death was caused by the accident. It is true that the death occurred after 5 days from the date of accident while he was 7 ## **M.F.A (WCC) No.83 of 2014** undergoing treatment in the District Hospital, Kollam. But in Ext A7 postmortem report the cause of death is shown as “postmortem findings are consistent with the death due to coronary artery occlusion”. There arises the question whether coronary artery occlusion was caused by the accident or whether there is any causal connection between the coronary artery occlusion and the injuries sustained in the accident. We are of the opinion that unless it is proved by adducing sufficient medical evidence it cannot be held that coronary artery occlusion was caused by the injuries sustained in the accident. But, going by the impugned judgment it could be seen that no evidence either oral or documentary had been adduced to prove the cause of death except the postmortem certificate. 11. We further observe that the Compensation Commissioner has lost sight on the opinion as the cause of death shown in Ext A7 postmortem certificate. In other words, from the postmortem certificate alone it cannot be held that there was a causal connection between the death and the injuries sustained in the accident. Hence we are unable to justify the findings of the Commissioner for Workmen's Compensation that the death was arising out of and in the 8 ## **M.F.A (WCC) No.83 of 2014** course of employment. Consequently, the impugned judgment under challenge in this appeal is set aside. Having regard to the fact that the application was filed invoking the provisions of beneficiary social legislation we are inclined to give an opportunity to the dependents of the workman to prove the cause of death by adducing further evidence. Consequently, the application filed by the applicants will stand remitted back to the Commissioner for Workmen's Compensation for fresh consideration after affording an opportunity to both parties to adduce further evidence. The parties shall appear before the Commissioner for Workmen's Compensation on 16.11.2017. The Commissioner shall dispose of the application afresh within a period of three months from the date of appearance. This Miscellaneous First Appeal (WCC) is disposed of as above. **K.HARILAL Judge** **A.M.BABU Judge** _sks/15.09.2017_ 9 **M.F.A (WCC) No.83 of 2014**