National Insurance Company Ltd. v. Sainaba and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935 ## M. F. A. (WCC). No. 218 of 2010 -------------------------------------------------------- (AGAINST THE ORDER IN WCC. 92/2003 DATED 17.02.2010 ON THE FILE OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION, PALAKKAD). ................................... APPELLANT(S)/2ND OPPOSITE PARTY IN WCC NO.92/03: -------------------------------------------------------------------------------- THE NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE, TRISSUR, REPRESENTED BY ITS MANAGER REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADVS.SRI.LAL GEORGE SMT.M.J.INDUJA RESPONDENT(S)/APPLICANTS & IST OPPOSITE PARTY IN WCC NO.92/03 - -------------------------------------------------------------------------------------------------------- 1. SMT. SAINABA, AGED 65 YEARS, W/O.KASIM RAWTHAR, KUNDIL PEEDIKA HOUSE, KALLEKAD P.O. PIRAYIRI VILLAGE, PALAKKAD DT. 678 015 2. KAMALUDHEEN, AGED 47 YEARS, S/O.KASIM RAWTHER, KUNDIL PEEDIKA HOUSE, KALLEKAD P.O. PIRAYIRI VILLAGE, PALAKKAD DT. 678 015. 3. RAHMATH, AGED 44 YEARS, D/O.KASIM RAWTHER, KUNDIL PEEDIKA HOUSE, KALLEKAD P.O. PIRAYIRI VILLAGE, PALAKKAD DT. 678 015. 4. SOUDHA, AGED 34 YEARS, D/O.KASIM RAWTHAR, KUNDIL PEEDIKA HOUSE, KALLEKAD P.O. PIRAYIRI VILLAGE, PALAKKAD DT. 678 015. 5. MUHAMMED MANZOOR, AGED 32 YEARS, S/O.KASIM RAWTHAR, KUNDIL PEEDIKA HOUSE, KALLEKAD P.O. PIRAYIRI VILLAGE, PALAKKAD DT. 678 015. 6. SHEEJA, AGED 26 YEARS, D/O.KASIM RAWTHAR, KUNDIL PEEDIKA HOUSE, KALLEKAD P.O. PIRAYIRI VILLAGE, PALAKKAD DT. 678 015. 7. NOORJAHAN, AGED 23 YEARS, S/O.KASIM RAWTHAR, KUNDIL PEEDIKA HOUSE, KALLEKAD P.O. PIRAYIRI VILLAGE, PALAKKAD DT. 678 015. ## M.F.A.(WCC).NO.218/10 8. NOUSHAD, AGED 20 YEARS, - S/O.KASIM RAWTHAR, KUNDIL PEEDIKA HOUSE, KALLEKAD P.O. PIRAYIRI VILLAGE, PALAKKAD DT. 678 015. 9. V.RAMACHANDRAN, S/O.VELAPPA MOOTHAN, 33/141, KARTHIKEYA NIVAS, MOOTHANTHARA P.O. PALAKKAD DT 678001. R9 BY ADV. SRI.VINOD KUMAR.C R1 TO 7 BY ADV. SRI.T.K.SANDEEP THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. M. JOSEPH & A. HARIPRASAD, JJ. ----------------------------------------------------M. F. A. (WCC).NO.218 OF 2010 ----------------------------------------------------Dated this the 19[th] August, 2013** ## **JUDGMENT** ## **K. M. Joseph, J.** Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act, 1923 (renamed as the Employees' Compensation Act, 1923 and hereinafter referred to as the Act). 2. By the impugned order, the Commissioner has ordered the appellant to pay ₹.4,19,840/= with simple interest at 12% from the date of the accident till the date of deposit. 3. Case of respondents 1 to 8 who are the applicants (and who are hereinafter referred to as the applicants) is briefly as follows: They are the mother and siblings of one Kaja Hussain (hereinafter referred to as the workman). The workman was employed by the 9[th] respondent who is the first opposite party, as a _**2**_ ## _**M.F.A.(WCC).NO.218/2010**_ driver. On 18.11.2002, the workman had taken a marriage party to St. Sebastian Church and he was waiting for return of the party, in the compound of the church. The workman died due to heart attack which has occurred due to the stress and strain as a driver. The Commissioner accepted the case of the applicants and he found that driving is a profession which has got stress and strain. The workman was on duty and he was waiting for taking back the marriage party. It was further found that so the period of waiting for the marriage party is his duty. After appreciating evidence, it was found that the workman would come under Section 2(l)(n) of the Act under the first opposite party. 4. We heard the learned counsel for the appellant, the learned counsel appearing for the applicants and also the learned counsel appearing on behalf of the first opposite party, the employer. 5. Learned counsel for the appellant would submit that the Commissioner acted illegally in finding that the workman had _**M.F.A.(WCC).NO.218/2010**_ _**3**_ suffered employment injury. It is his case that the workman died on account of heart attack which was as a result of the disease he was suffering from. He relied on the following Judgments: v. (i) _**Jyothi Ademma Plant Engineer, Nellore**_ (2006 (3) KLT 426). This is a case where the Apex Court had to consider a case where the job of the deceased was only to switch on or off and the doctor had opined that there was no scope for any stress or strain his duties. It is also found that the deceased was suffering from chest disease and was previously being treated for the disease. It is in that context that the Apex Court has held as follows: _“6. Under S.3(1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies a natural result 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 a contributory_ _**M.F.A.(WCC).NO.218/2010**_ _**4**_ _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._ _8. In the present case, it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded the High Court's judgment does not suffer from any infirmity.”_ (ii) The next decision which he brought to our notice is rendered by this Court in _**National Insurance Co. Ltd.**_ v. _**Sheeja**_ (2011 (3) KLT 561). Therein it was a case where the deceased was a driver of a stage carriage who died, according to the applicants, while driving the vehicle. It was found to be an accident in so far as it was a sudden unexpected death. The Court also took note of the _**5**_ _**M.F.A.(WCC).NO.218/2010**_ fact that the deceased was 39 years of age. The Court also undoubtedly took note of the nature of employment as a driver in a stage carriage wherein the driver had to stick to the time schedule adding stress and strain. (iii) Learned counsel for the appellant also drew our attention to the order passed by the Apex Court in _**Rashida Haroon**_ v. _**Kupurade Divisional Manager, Oriental Insurance Company Limited And Others**_ ((2010) 3 SCC 271). Therein, the Apex Court, no doubt, referred to Section 3 of the Act and further held as follows: _“9. It will be clear from the wording of the above section that compensation would be payable only if the injury is caused to a workman by accident arising out of and in the course of his employment. There has to be an accident in order to attract the provisions of Section 3 and such accident must have occurred in the course of the workman's employment.”_ _**6**_ _**M.F.A.(WCC).NO.218/2010**_ 6. Per contra, learned counsel for the respondent/applicants supported the order. He drew our attention to the Judgment of this Court in _**National Insurance Co. Ltd.**_ v. _**Sheeja**_ (2011 (3) KLT 561) and contended that the driver was only 39 years of age and that was taken into consideration. In this case, there is no dispute that the driver was aged thirty years. There is pleading that the workman died due to heart attack which occurred due to strenuous and continuous working as a driver. Not only that, AW1 who is none other than the fifth applicant, has in his chief examination spoken in clear terms about the stress and strain attending his employment as a driver. AW1 has specifically spoken about the fact that there was stress and strain. The workman was working even on Sundays without taking any leave. The Commissioner has entered the specific finding that the profession of a driver has got stress and strain. In particular, in this case also, as already noted, there is pleading. We would not think that any case has been made out _**M.F.A.(WCC).NO.218/2010**_ _**7**_ within our limited jurisdiction under Section 30 of the Act. The Appeal fails and it is dismissed. Sd/= **K. M. JOSEPH JUDGE** ## **Sd/=** **A. HARIPRASAD JUDGE** **kbk.** _**//True Copy//**_