The Oriental Insurance Co. Ltd. v. SMT. Jini and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY &** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930** **MFA.No.145 of 2008()** **----------------------------WCC.140/2002 of W.C.C.,THRISSUR** **....................** ## **APPELLANT/2ND OPPOSITE PARTY:** **---------------------------------------------------------** **THE ORIENTAL INSURANCE CO. LTD., THRISSUR, REPRESENTED BY ITS ASSISTANT MANAGER,, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI -18.** **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** ## **RESPONDENTS/APPLICANTS/1ST OPPOSITE PARTY:** **-------------------------** **1. SMT.JINI, W/O.LATE RAJU, VALLUPARAMBIL HOUSE, P.O.MANAKULANGARA, KODAKARA.** **2. MASTER ABHISHEK, S/O.LATE RAJU, VALLUPARAMBIL HOUSE, P.O.MANAKULANGARA, KODAKARA.** **3. ABHIRAMI, D/O.LATE RAJU, VALLUPARAMBIL HOUSE, P.O.MANAKULANGARA, KODAKARA.** **4. SMT.LEELA, W/O.RAMANKUTTY, VALLUPARAMBIL HOUSE, P.O.MANAKULANGARA, KODAKARA.** **5. MRS.K.G.MINI SURESH, W/O.K.G.SURESH, KARYANGATTIL HOUSE,** - **P.O.KALLETTUMKARA.** ## **BY** **THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------M.F.A.NO.145 OF 2008 () ----------------------------------Dated this the 23[rd] day of September, 2008** ## **J U D G M E N T** ## **KOSHY,J.** A 37 year old man while driving a mini lorry, developed chest pain. Though he was admitted in the hospital, he died on the same day within a few hours. His dependents, wife, two minor children and aged mother claimed compensation under the Workmen's Compensation Act against his employer and appellant Insurance company, as vehicle was insured by it at that time. Commissioner found that the accident occurred during the course of employment and it is arising out of employment and chest pain developed while driving. Insurance company was made liable to deposit the amount. Compensation was awarded strictly as per the provisions of the Workmen's Compensation Act. There is no dispute regarding the calculation of the amount. This appeal is filed by the appellant Insurance company contending that death MFA.145/08 2 was not the result of an injury occurred in an accident. 2. Firstly it is contended that the deceased died out of natural disease and it is not arising out of employment and Insurance company is not liable to pay the compensation. Secondly, it is contended that interest of 12% awarded from the date of accident is against statutory provision. It is true that accident is not defined either in the Motor Vehicles Act or in the Workmen's Compensation Act. Accident is an untoward incident and if an occurrence is unexpected and without design on the part of the workman, it is an accident **(See Janaki Ammal and others v. Divisional Engineer, Highways, Kozhikode (1956 (2) LLJ 233))** . But even if accident occurs during the course of employment, the employer will be liable under the Workmen's Compensation Act only if it has got some causal connection with the employment and then only it can be stated that it is 'arising out of employment' as held in **B.E.S.T. Undertaking v. Mrs. Agnes (AIR 1964 SC 193)** and **Jyothi Ademma v. Plant Engineer ((2006) 5 SCC 513)** . That will necessarily MFA.145/08 3 depend upon the facts. Here the driver was only 37 years old. According to the employer, even though he was driving the lorry, the lorry was hired by one Ayurvedic company for transporting their products and at that time, accident occurred and therefore, it cannot be stated that he is the owner of the vehicle. The vehicle was hired but the deceased was employed by the 5[th] respondent and not by the Ayurvedic company who hired the lorry with the driver. Hence the lorry owner is the employer of the deceased driver. No appeal is also filed by the employer challenging the above finding. With regard to the heart failure, the Commissioner found that while deceased was driving the lorry owned by the 1[st] respondent, he felt chest pain and when the vehicle reached at Edappal, he was totally collapsed due to cardiac arrest and he was admitted in the Edappal Hospital and he died in the hospital on the same day. According to the Commissioner, it is due to the physical strain and exertion that has resulted in the cardiac arrest and deceased was continuously driving the vehicle from the early morning and since there was no other driver, he continued to drive the MFA.145/08 4 vehicle even after he felt chest pain. These are finding of facts of the Commissioner. There was no other evidence available. The Commissioner gave a definite finding that accident arose during the course of employment while driving the vehicle and his act of continuous driving has a causal connection to the cause of accident. It is contended that his work has accelerated the disease if he was having the heart problem. In this connection, we refer to the decision of the Bombay High Court in **Laxmibai Atmaram v. Chairman & Trustees, Bombay Port Trust (AIR 1954 Bombay 180)** . We are of the opinion that it is a finding of fact and he was carrying goods in the lorry and accident occurred during the course of employment and there is no substantial question of law. With regard to the question of interest, it is an admitted case that interest is payable on the amount under Section 4A of the Workmen's Compensation Act from the date when the 'compensation fell due'. This question was considered in **K.S.E.B v. Valsala ((1999) 8 SCC 254)** , by a MFA.145/08 5 three member bench of the Supreme Court. There the employer contended that the accident occurred before the amendment of the Act by Act No.30 of 1995, and therefore, since the compensation fell due before the amendment of the Act, compensation need be calculated only as per the pre-amended provision. According to the claimants, since their claim was adjudicated after the amendment, they are entitled to higher compensation on the basis of amended provision. Therefore, question to be considered was when the 'compensation fell due'. Differing from the earlier view of the Apex court, the three member bench held that compensation falls due on the date of accident, and therefore, compensation can be calculated only on the basis of the provisions of the Act as existing on the date of accident. A Constitution Bench of the Supreme Court in _**Pratap Narain Singh Deo v. Srinivas Sabata and another (AIR 1976 SC 222)**_ (paras 7 and 8) held that the compensation falls due on the date of accident. In **Gopinath v. United India Insurance Co. Ltd. (2000 II LLJ 80 Kerala)** , it was held that interest is payable from the date of accident after interpreting Section 4A. In **Maghar** MFA.145/08 6 **Singh v. Jashwant Singh ((1998) 9 SCC 134),** accident occurred on 26.7.1984. Here a three member bench of the Honourable Supreme Court awarded compensation with effect from 26.7.1984 even though using the constitutional powers of the Supreme Court, in the interest of justice, considering that for 15 years interest is to be paid, reduced the interest from 12% to 9%. In these circumstances, considering the statutory provision, we are of the opinion that 12% interest awarded from the date of accident also requires no interference. Appeal is accordingly dismissed. ## **J.B.KOSHY, JUDGE** ## **K.P.BALACHANDRAN, JUDGE** prp ## **J.B.KOSHY & K.P.BALACHANDRAN, JJ.** ## **--------------------------------------------------------** **M.F.A.NO. OF 2006 ()** **---------------------------------------------------------** **J U D G M E N T** **---------------------------------------------------------** **23[rd ] September, 2008**