HIGH COURT OF UTTARAKHAND AT NAINITAL AO No. 531/2007 National Insurance Company. …Appellant. Versus Smt. Anita and others. …Respondents. AND Cross Objection No. 787 of 2008 Smt. Anita. ….Applicant. Shri Prabhat Pandey, Advocate for the appellant, Shri I.S. Mehra, Advocate for the respondent no.1. Shri Prem Shankar Gupta, Advocate for respondent nos. 2 & 3. Dated: May 18, 2010 Hon’ble V.K. Bist, J. This appeal, preferred under Section 30 of Workmen’s Compensation Act, 1923 (hereinafter referred to as the Act) is directed against the judgment and award dated 20.09.2007 passed by the Workmen Compensation Commissioner/ Deputy Labour Commissioner, Haldwani, Nainital in Workman Compensation Case (for brevity W.C.C.) No. 75 of 2002, whereby the amount of Rs. 2,75,401/- is awarded in favour of the claimant/respondent no.1. 2. Brief facts of the case are that an application was moved by the claimant-Smt. Anita (present respondent no.1) widow of the deceased before the Commissioner, Workmen Compensation, alleging that her husband late Rajkumar was employed as driver in the establishment of M/s Vishwakarma Paper & Boarders Ltd., Kashipur, District Udham Singh Nagar. While performing his duties he died on 05.08.2002. Late Rajkumar was getting a sum of Rs. 4,500/- per month as his salary and at the time of death he was aged about 32 years. It was further alleged 2 in the application that Rajkumar died while he was under the employment of respondent nos. 2 & 3. As the respondents 2 and 3 did not pay compensation for the untimely death of her husband, therefore widow of the deceased moved application for awarding compensation to the tune of Rs. 7 lacs with interest as well as penalty. A W.C.A. Case No. 75 of 2002 was registered and the respondents 2 and 3 were summoned. Lateron appellant was also impleaded as defendant no.3. The respondent nos. 2 & 3 filed one written statement dated 24.03.2003 in which the factum of employment given by them was not denied, rather it was asserted that the concerned vehicle was duly insured with M/s National Insurance Company Ltd., Kashipur and deceased workman was also insured with the vehicle under the Act and the liability, if any, is upon the Insurance Company/appellant. The respondent nos. 2 & 3 further stated that the cause/time of death of the deceased can be verified only after the observation of the medical report but no such report was annexed with the claim petition. These respondents further stated that the salary of the deceased was Rs. 2,702/- per month and as per the record of the factory, the deceased had completed 33 years 5 months 4 days at the time of his death. Respondent nos. 2 and 3 further stated that on 05.08.2002, the deceased was absent from duty. The respondent nos. 2 & 3 also filed another written statement on 18.01.2005 and stated that the deceased was in their employment in the capacity of workman (unskilled) from 01.11.2000 to 05.08.2002 and expired during the course of medical treatment in Civil Hospital, (U.S. Nagar) on 05.08.2002. In this written statement, it has also been pleaded that deceased workman was in their employment on 05.08.2002. It has been further stated 3 that respondent nos. 2 & 3 have given cover to their employees by adopting the group policy for the workmen. It was declined that being a driver, the deceased workman was not covered under the group policy. It was further stated in the written statement that the deceased was insured alongwith other employees, and the Insurance Company will alone be liable for payment of compensation, if any, to the applicant as per the Act, as concerned W.C. Policy was renewed up-to-date and premium was also duly paid. 3. The appellant/defendant no.3 (National Insurance Company Ltd.) also filed written statement with the averments that the deceased was not a workman and he was not insured under Workmen Compensation Act, 1923. It has been stated that the case of the claimant is not covered under the policy of Motor Vehicle Act, 1988 because the accident of motor vehicle did not occur during the course of employment and the deceased was not a workman. Since particulars of insurance policy of deceased was not disclosed in the claim petition, in the absence of documentary evidence the claimant is not entitled to any compensation from the Insurance Company. It has been further stated that the claimant has to submit verified copy of the medical report of Govt. Hospital, Kashipur and memo of Kotwali Kashipur about suspected poisoning case. No accident was occurred and the case is suspected poisoning case. The Insurance Company will not indemnify to the insured, because the deceased was not insured. The claim petition is not maintainable under the terms and conditions of the policy. 4 4. In order to prove her case, the claimant examined herself before the learned Workmen Compensation Commissioner/ Deputy Labour Commissioner in which she reiterated and supported the version made in the claim petition stating therein that her husband late Rajkumar was employed as driver in the establishment of M/s Vishwakarma Paper & Boarders Ltd., Kashipur, District Udham Singh Nagar. While performing his duties he died on 05.08.2002 at 5:20 p.m. and he was getting a sum of Rs. 4,500/- per month as his salary and at the time of death he was aged about 32 years. She stated that Rajkumar died while he was under the employment of respondent nos. 2 & 3. In support her version the claimant filed photocopies of the certificate issued by the Medical Superintendent, certificate issued by the Sub Divisional Magistrate, certificate relating to funeral of the deceased, death certificate and copy of family register. The respondent nos. 2 & 3 examined Shri Manoj Kumar Joshi, Time Office In-charge M/s Vishwakarma Paper & Boarders Ltd., Kashipur. This witness, in his testimony, stated that Rajkumar was employed as driver in their establishment and he was getting Rs. 2,702/- per month. This witness has categorically stated that Rajkumar died on 05.08.2002 while discharging his duties. The workman was fully and legally covered under the group policy of National Insurance Company Ltd., duly renewed, and the liability, if any, is upon the Insurance Company/appellant. The Insurance Company/ appellant also produced evidence of Shri Vijay Kumar Arora, Branch Manager, National Insurance Company, who stated that the driver was not covered under the WCA Policy. The learned Workmen Compensation Commissioner/ Deputy Labour Commissioner vide order 5 dated 20.09.2007 awarded the amount of Rs. 2,75,401/- as compensation in favour of the claimant/respondent no.1. Being aggrieved with this order dated 20.09.2007 the Insurance Company has come up in the instant appeal. 5. The cross objection has been filed by the applicant/respondent no.2 for setting-aside the order/ award dated 20.09.2007 passed by the learned Workmen Compensation Commissioner/ Deputy Labour Commissioner in W.C.C. No. 75 of 2002 ‘Smt. Anita vs. Chairman/M.D. M/s VishwaKarma Paper and Board Ltd. and others’, so far as it relates to the quantum of compensation and also with the prayer to enhance the same in toto. 6. I have heard Shri Prabhat Pandey, the learned counsel for the appellant, Shri I.S. Mehra, the learned counsel for the respondent no.1, Shri Prem Shankar Gupta, the learned counsel for respondent no. 2 & 3 and also perused the record. 7. Shri Prabhat Pandey, the learned counsel for the appellant submitted that the workman died his natural death and the policy does not cover such death, hence liability of payment of compensation cannot be fastened upon the Insurance Company. According to him, the learned Workmen Compensation Commissioner has fastened liability of payment of compensation upon the appellant to the tune of Rs. 2,75,401/- ignoring provision of Sub Section 1 and 2 of Section 3 of the Act. Learned counsel for the appellant referred Sub Section 1 & 2 of Section-3 of the Act. Section 3 of the Act is being quoted hereunder:- 6 “3. Employer’s liability for compensation:- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding (three) days; (b) in respect of any {injury, not resulting in death (or permanent total disablement) caused by} an accident which is directly attributable to- (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman. [(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is provided, the accident shall be deemed to have arisen out of, and in the course of, the employment: Provided that if it is proved- 7 (a) that a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule II has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment; and (b) that the disease has arisen out of and in the course of the employment, the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section: Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.] [(2A). If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was user more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.] (3) [The Central Government or the State Government], after giving, by notification in the Official Gazette, not less than three months, notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub-section (2) shall apply [in the case of a notification by the Central Government, within the territories to which this Act extends, or, in case of a notification by the State Government, within 8 the State] as if such diseases had been declared by this Act to be occupational disease peculiar to those employments.] (4) Save as provided by [sub-sections (2), (2A)] and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment. (5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury- (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.” 8. Learned counsel for the appellant has submitted that there is no averment in the application that the workman died due to injury or disease suffered by him during the course of employment. In the claim petition, it has been mentioned that Rajkumar was found unconscious outside the gate of factory and died in the hospital, therefore the death of the deceased cannot be said due to of any accident in due course of his employment. He submitted that in the postmortem report also the cause of death is uncertain, hence the cause of death is not covered under Sub Section 1 of Section 3 of the Act. Rather, from the evidence on record, the deceased died a natural death and not because of work done for the employer. In this regard learned counsel for the appellant relied on the judgment of Division Bench of this High Court rendered in A.O. No. 470 of 2004 ‘United India Insurance Company Ltd. vs. Smt. Neema Bhandari’, 9 delivered on 31.07.2006 and decision of the Division Bench of this High Court rendered in A.O. No. 478 of 2005 ‘United India Insurance Company Ltd. vs. Kailash Chandra Pandey, delivered on 09.04.2007. 9. On the other side, Shri I.S. Mehra, the learned counsel for respondent no.1 submitted that the learned Workmen Compensation Commissioner has rightly held the appellant liable for compensation but he erred in believing the pay certificate of Rs. 2702/- produced by the employer whereas the deceased was getting Rs. 4,500/- per month. Shri Mehra further submitted that appellant company has neither taken the plea about the cause of death nor tried to get this issue framed in lower Court and now the appellant should not be permitted to take this plea. He also submitted that in view of admission of Time Office Incharge of employer company that death of the deceased occurred during the course of employment, the claimant has rightly been awarded compensation. He further submitted that the work of driver is not strain less rather is full of stress and in view of this fact it is clear that employment contributed towards death of deceased employee. He further submitted that compensation amount may be enhanced in toto alongwith 12% interest from the date of accident and also penalty. In support of his argument, he relied on AIR 1999 Supreme Court 3502, II (2007) ACC 770 and also judgment of this Court in A.O. No. 483 of 2007. Shri Prem Shankar Gupta, the learned counsel for the respondent nos. 2 & 3 admitted that driver is also included in the definition of workman. But, he submitted that in the present case, there is no evidence to demonstrate that the workman was put through sudden stressful condition in the course of his duties, which 10 resulted in his death, therefore, the employer cannot be held liable for compensation. He further submitted that liabilities of making payment of compensation, if any, is of the appellant as at the time of death, the deceased, alongwith other employees, was insured with the appellant-Insurance Company. In support of his arguments he referred IV (2006) ACC 769 (SC) and III (2006) ACC 356 (SC). 10. I have perused the judgment and award dated 20.09.2007 passed by the learned Workmen Compensation Commissioner and also entire record of the case. The learned Commissioner has reached to the conclusion that Rajkumar was employed as driver with the establishment of M/s Vishwakarma Paper and Boards Ltd. Kashipur and died on 05.08.2002 while he was discharging his duties as admitted by the respondent nos. 1 & 2 in their written statement. He held that the death of the deceased was the result of his employment with the respondent nos. 2 & 3, therefore the claimant is entitled for compensation. The Workmen Compensation Commissioner found the deceased workman fully and legally covered under the W.C. policy of National Insurance Company Ltd. duly occupied by the establishment and fixed the liability of the Insurance Company/ appellant. The learned Commissioner has accordingly passed award in favour of the claimant and awarded a sum of Rs. 2,75,401/- to be paid by the Insurance Company/ appellant. 11. In the record of the case, I find two written statement filed by the respondent nos. 2 & 3 before the Workmen Compensation Commissioner. One written 11 statement was filed on 24.03.2003 and in paragraph-1 of the said written statement, the opposite party nos. 2 & 3 came up with the case that late Rajkumar, husband of the claimant/respondent no.1, was absent from his duties on 05.08.2002. Another written statement was filed by the same respondents on 18.01.2005 in which it is mentioned that late Rajkumar was in their employment in the capacity of workman from 01.11.2000 to 05.08.2002 and expired during the course of medical treatment in Civil Hospital, U.S. Nagar on 05.08.2002. Time Office Incharge of the employer also admitted in his statement that the deceased died during the course of employment. Thus, the stand taken by the respondents 2 and 3 about the deceased employee at the time of his death is self contradictory. There is nothing on record which could prove that the deceased workman died due to the accident or due to the injuries suffered by him during the course of his employment. In claim petition also, this much is mentioned that deceased employee died on his duty in factory premises during his course of employment. In postmortem report also, the cause of death is uncertain. The onus is upon the claimant/applicant to prove that it was the work and the resulting strain which contributed to the death of employee. But, in the present case, the claimant/respondent no.1 failed to prove this fact. Therefore, the death of the deceased employee is neither covered under sub-section (1) of Section-3 nor is covered by the provisions contained in sub-section 2 of Section-3 of the Act as the deceased employee cannot be said to have died by the disease which is covered under Part-A of Schedule III or Part-B of Schedule III. In my opinion, the learned Workmen Compensation Commissioner erred in reaching to the conclusion that deceased Raj Kumar died 12 during the course of his duty. In view of aforesaid discussion, I do not find any force in the arguments of learned counsel for the claimant/respondent no. 1. Case law cited by him i.e. AIR 1999 Supreme Court 3502 is not applicable in the present case as facts of present case are different. Another judgment of this Court in Appeal No. 483 of 2007 is also not applicable in the present case as same relates to award of interest which claimant cannot get as his claim has been declined. Similarly, the claimant will also not get benefit of case law II (2007) ACC 770 (HP) which is in respect of penalty awarded under Section 4(i) (c) (ii) of the Act. 12. In the case of Jyothi Ademma vs. Plant Engineer, Nellore and another, reported in (2006) 5 Supreme Court Cases-513 the Apex Court in paragraph nos. 6, 7 & 8, has observed as under:- “6. Under Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. It the workman dies as 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 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. 7. The expression “accident” means an untoward mishap which is not expected or designed. “Injury” means physiological injury. In Fenton v. Thorley & Co. Ltd. it was observed that the expression “accident” is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A.C. in 13 Trim Joint District School Board of Management vs. Kelly as follows; “I think that the context shows that in using the word ‘designed’ Lord Macnaghten was referring to designed by the sufferer.” 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.” 13. In this Case also, this Court does not find anything on which basis it could be said that strain of work resulted or contributed in the death of the deceased employee. 14. In view of the aforesaid discussions, the appeal is allowed. The impugned judgment and award dated 20.09.2007 passed by the Workmen Compensation Commissioner/ Deputy Labour Commissioner, Haldwani, Nainital in Workman Compensation Case is hereby quashed. The cross-objection filed by the claimant/ respondent no.1 stands dismissed. 15. Perusal of record shows that on 11.12.2007, cheque no. 846973 amounting to Rs. 2,25,401.00 payable at Bank of Baroda, Haldwani was given to the claimant/ respondent no.1 by the Workmen Compensation Commissioner/Deputy Labour Commissioner, Kumaun, Haldwani, Nainital. National Saving Certificate of Rs. 50,000/- was also made in the name of minor son of the deceased. It appears that payment made through cheque has been withdrawn by the claimant. In view of these 14 circumstances, this Court leaves it open to the appellant- Insurance Company to write off the same. 16. No order as to costs. (V.K. Bist, J.) 18.05.2010 NCM: