National Insurance Co. Ltd. v. PAPPU & ORS (MFA No. 40 of 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 MFA.No. 40 of 2007() -------------------WCC NO.1/2004 OF COMMISSIONER FOR WORKMEN'S COMPENSATION, ERNAKULAM APPELLANT/2ND OPP.PARTY --------------------------- NATIONAL INSURANCE CO.LTD., 57, THIRUVIKA INDUSTRIAL ESTATE, GUINDY POST, TAMIL NADU. BY ADV. SRI.RAJAN P.KALIYATH ## RESPONDENTS/APPLICANTS AND OP-1 ---------------------------------- 1. PAPPU, S/O.KUTTAN, MULAKKAKUDY HOUSE, POST VENGOOR, KURUPPAMPPADI VIA. ERNAKULAM DISTRICT. 2. SARASU, W/O.PAPPU, MULAKKAKUDY HOUSE, POST VENGOOR, KURUPPAMPPADI VIA. ERNAKULAM DISTRICT. 3. MUHAMMED BASHEER, S/O.MUHAMMED HUSAIN, PARAKKATT HOUSE, POST KOTTAPADI, KOTHAMANGALAM, ERNAKULAM DISTRICT. ADV. SRI.JIJO PAUL FOR R1 & R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * *** M.F.A.No.40 of 2007 ---------------------------------------Dated this the 23[rd] day of December 2011 ## **J U D G M E N T** ## **SHAFFIQUE,J** This appeal is filed by the 2[nd] opposite party challenging an award passed by the Commissioner for Workmens Compensation awarding an amount of Rs.4,23,580/- with 12% simple interest on the said amount from the date of accident to the legal heirs of deceased M.P.Binu. The 2[nd] opposite party, being the insurer, is directed to pay the said amount. 2. The facts of the case reveals that Binu, a workman employed by the first opposite party as driver of a bus, suffered heart attack on 30/10/2003 and died on the same day between 12.30 a.m and 5.30 a.m which, according to the claimants, arose out of and in the course of employment. It is said that the bus was parked at a Petrol outlet and the deceased was sleeping inside the bus at the time of the incident. 3. It is contended by the first opposite party that, as the bus was halting after the trip, there is no employer employee 2 M.F.A.No.40 of 2007 relationship between the deceased Binu and the first opposite party. He contended that the vehicle was insured and the policy was in force at the time of accident and the 2[nd] opposite party is liable to indemnify the first opposite party. 4. The 2[nd] opposite party also contended that the death of the deceased was not due to an accident that has arisen out of and in the course of employment and the heart attack had occurred after the working hours and that the death was not in any way connected with the employment. They also denied that the deceased was a workman under the first opposite party. 5. The 2[nd] applicant, mother of the deceased, was examined as AW1 and she relied upon Exts.A1 to A6. During evidence, AW1 has stated that her son Binu was working with the first opposite party as a driver in a bus for the last three years and that after the running time, he used to remain in the vehicle to take care of the bus and that he used to come home only after 10 or 15 days. She also deposed that the heart attack occurred as the deceased was continuously driving the bus and during the his last trip, the tyre of the vehicle punctured which had to be changed and it was due to the said stress and strain 3 M.F.A.No.40 of 2007 that he suffered the heart attack. 6. The Commissioner after considering the evidence on record had come to a finding that the workman had to remain in the bus during night hours as facilities were not provided by the employer as per the Motor Transport Workers Act, that the strain attributable to the work accelerated heart attack and the deceased died inside the bus after his duty hours, that an unexpected death of the workman is an accidental death and therefore the deceased was a workman under the Act, that the death occurred due to the accident which has arisen out of the use of the motor vehicle and hence liable to be compensated. 7. The appeal is filed on various substantial questions of law. However, during the course of arguments, the appellant had raised the following substantial questions of law. i) Whether the finding of the Commissioner that the death of Binu had arisen out of and in the course of employment is perverse and contrary to the evidence? ii) Whether in the case of death of workmen due to cardiac arrest while sleeping in the bus is connected to the use of the vehicle or employment and whether the insurer is liable to 4 M.F.A.No.40 of 2007 pay the compensation? iii) Whether the award of interest could be fastened on the insurance company from the date of the accident in the light of judgment in **National Insurance Co.Ltd. v. Mobasir Ahammed and others [II (2007) ACC 274]** . 8. According to the learned counsel for the appellant, Binu suffered a heart attack while he was in the bus after the trip and therefore, it is not, in the course of employment. 9. In **United India Insurance Co.Ltd. v. Gopalakrishnan [1989 (1) KLT 421]** a division bench of this court considered the question as to whether heart attack during the course of employment amounts to an accident within the meaning of Section 3 of the Act. It is held that : “Though it is necessary that there should be a casual connection between the employment and the death in the unexpected way in order to bring the accident within Section 3, it is not necessary that it should be established that the workman died as a result of exceptional strain or some exceptional work that he died on the day in question. If the nature of the work and the hours of work caused great strain to the 5 M.F.A.No.40 of 2007 employee and that strain caused the unexpected death, it can be said that the workman died as a result of an accident which has arisen in the course of his employment.” And it is further held in para 23 of the said judgment that: “Though the workman died due to heart failure, we are certain that it is not necessary that the workman was actually working at the time of his death and that the death must occur while he was working or had just ceased to work. Further, we find that the evidence shows a great probability which satisfies in a reasonable manner that the strenuous work contributed to the fatal accident. This finding of the Commissioner is not unreasonable which requires interference by this Court.” It is further held by this Court in **National Insurance Co.Ltd v. Sheeja** [2011(3) KLT 561], relying upon an earlier judgment of this Court as reported in **Shah v. Rajankutty** [2005 (3)KLT 1014] that : “An unexpected death from the point of view of the deceased therefore, can be characterised as an accident. Only a casual 6 M.F.A.No.40 of 2007 connection or association is necessary. Here the employee was a driver of the stage carriage. It would be unrealistic to think that the job of a driver of a stage carriage does not involve stress and strain particularly in the context of the competition which is the ground reality, and the very job of driving particularly bears the time schedules which are imposed on stage carriages makes stress inevitable”. 10. The point therefore to be considered is whether a heart failure while the driver was sleeping in the bus after the trip is in the course of employment. After considering the entire case law with reference to Section 3(1) of the Act, the Supreme Court in **B.E.S.T.Undertaking v. Mrs.Agnes [AIR 1996 SC 193]** held that “Under S.3(1) of the Act the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does not necessarily end when the “down tool” signal is given or when the workman leaves the actual workshop where he 7 M.F.A.No.40 of 2007 is working. There is a notional extension at both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. As employment may end or may begin not only when the employee begins to work or leaves his tools but also when he used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employee to use only a particular means of transport extends the area of the field of employment to the course of the said transport. Though at the beginning the word “duty” has been strictly construed, the later decisions have liberalized this concept. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion.” It is also necessary to refer to the principle laid down by the House of Lords in **Weaver v. Tredegar Iron and Coal Co.Ltd (1940) 3 AII ER 157** in regard to the concept of duty and extracted in BEST case (supra). “At pp. 163, 164, 166, the House of Lords reviewed the entire law and gave a wider meaning to the concept of “duty”. In the said 8 M.F.A.No.40 of 2007 case, the House of Lords by a majority held that the accident arose in the course of and out of the employment and the injured workman was entitled to compensation. Lord Atkinson posed the question thus: Is he doing something in discharge of a duty to his employer directly or indirectly imposed upon him by his contract of service? and answered: “..................... the word “duty” in the test has such a wide connotation that it gives little assistance as a practical guide” He proceeded to state: “Duty with the vague connotation given to it above cannot be rejected, but it does not seem to point very clearly to the desired goal. There can be no doubt that the course of employment cannot be limited to the time or place of the specific work which the workman is employed to do. It does not necessarily end when the “down tools” signal is given, or when the actual workshop where he is working is left. In other words, the employment may run on its course by its own momentum beyond the actual stoppingplace.” After considering the decisions on the subject, learned Lord concluded thus: 9 M.F.A.No.40 of 2007 “When all the cases have been looked at and considered, one is finally brought back to the words of the Act, “the course of the employment.” The course of the employment begins when the workman enters the employment, and it ceases when he leaves the employment, it being his duty to do both.” 11. The learned counsel for respondents 1 and 2 relied upon the judgment in **Shakuntala v. Prabhakar** [2006(4) KLT 1031 (SC)] to support the argument that each case has to be considered on its own facts and no hard and fast rule can be laid down in the matter. It is contended that evidence was adduced to indicate that the deceased died during the course of employment and due to the stress and strain and therefore the Commissioner, having found on the basis of evidence on record that death was in the course of employment, it cannot be challenged in the appeal. According to the learned counsel for respondents 1 and 2, in so far as there is no perversity in the findings of the Commissioner, there is no substantial question of law to be decided in the appeal. It is in evidence that the deceased died due to heart attack while he stayed in the bus 10 M.F.A.No.40 of 2007 after the trip waiting for the next trip in the morning. That he was asked to remain in the bus by the first opposite party would only indicate that he was in the course of employment and that he was on “duty” as held in BEST case (supra). The evidence of AW1 indicates that the deceased was always sleeping in the bus after the trip to take care of the bus and to continue the trip next day morning. AW1 had deposed that it was on account of stress and strain in driving the vehicle which resulted in the accident. The Commissioner also had on evaluation of the evidence come to such a finding and therefore the said finding of fact not being perverse, cannot be disturbed. 12. It was next contended that there was no pleading to suggest that the workmen died in the course of employment. In the application it is averred that the workman employed by the first opposite party as driver in bus No.KL-05 L 6673 sustained heart attack on 30/10/2003, and died on the same day between 12.30 a.m and 5.30 a.m, which arose out of and in the course of his employment. The statement given by the father of the deceased, Pappu under Rule 23 indicates that the deceased died due to heart attack due to the strain and stress on account of 11 M.F.A.No.40 of 2007 employment. Under the Workmen's Compensation Act, 1923, application for compensation by workmen is in a format which reads as follows: “(1) the applicant, a workman employed by (a contractor with) the opposite party on the .......... day of ....... 19....../20........, received personal injury by accident arising out of and in the course of his employment. The cause of the injury was (here insert briefly in ordinary language the cause of the injury)..................................................................... ............................................................................... ....................................” 13. This, by itself, constitutes the pleading and the cause of injury apparently is heart attack which is pleaded. That the death was due to stress and strain is a matter of evidence and it is open for the claimants to adduce evidence to prove the said fact when there is a denial. AW1's evidence clearly reveals the same which can be justified. At any rate the Act being a beneficial legislation strict law of pleadings cannot be made applicable. The Commissioner, having accepted the evidence and having come to a finding which is possible, the same cannot be disturbed by this Court. 12 M.F.A.No.40 of 2007 14. The learned counsel for the appellant challenged the award of interest from the date of accident based on the decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Mubasir Ahmed & Anr. (II (2007) ACC 264). S.4A(1) casts an obligation on the employer to pay compensation 'as soon as it falls due' and S.4A(3) imposes a liability to pay interest if it is not paid within one month from the date compensation amount 'fell due'. A division bench of this court in **National Insurance Co. Ltd. vs Rekha ( 2007 (4) KLT 386)** after referring to Mubasir Ahamed's case (supra) held that: “ Now, it is settled law that compensation has to be calculated with reference to the provisions of the Act as on the date of accident as compensation 'fell due' on that date itself. In K.S.E.B. v. Valsala (1999 (3) KLT 348 (SC) = (1999) 8 SCC 254), a three member Bench of the Supreme Court held that relevant date for determination of the rights and liabilities of the parties concerned is the date of accident and not the date of adjudication of the claim. It is true that if there is dispute regarding liability, matter can be referred to the Commissioner. But, Constitution Bench of the Hon'ble Apex Court in 13 M.F.A.No.40 of 2007 Pratap Narain Singh Deo v. Shrinivas Sabata & Anr. (AIR 1976 SC 222 = ((1976) 1 SCC 289) held that even a reference under S.19 of the Act does not have the effect of suspending the liability of an employer to pay compensation under S.3 till after adjudication or settlement. It is the duty of the employer to pay/deposit compensation as soon as personal injury is caused to the workman in an accident during the course of employment. If the employer fails to do so within one month of the accident and also makes no provisional payment, he is liable to pay interest from the date of accident.” ................................. “A three member Bench decision in Maghar Singh v. Jashwant Singh ((1998) 9 SCC 134 = 1997 ACJ 517) which is relied on in National Insurance Company v. Mubasir Ahamed (2007 AIR SCW 1265), Hon'ble Supreme Court directed to pay interest from the date of accident. In Maghar Singh's case accident occurred on 26.7.1984. Application filed by the workman was rejected by the commissioner and High Court.” ................. “In Mubasir Ahamed's case, Maghar Singh's case was relied, but, directed to pay interest from the date of award only on the M.F.A.No.40 of 2007 14 basis of the facts of that case”. Hence the award of interest from the date of accident is proper and doesnot require interference. 15. Under these circumstances, we do not think that any interference is called for against the finding of the Commissioner and therefore, this appeal shall stand dismissed. **(K.M.JOSEPH, JUDGE)** **(A.M.SHAFFIQUE, JUDGE)** jsr