c ^. ^ IN THE HON'BLE HIGH COURT OF CHHATTISHGARH AT BILASPUR M.A.(C)No.- lly- 72010^ APPELLANT ....--^ ^^^^r ^K®' .^ RESPONDENTS :- 1. DIVISIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE-II, SECOND FLORE, CHAWLA COMPLEX, SAINAGAR, DEVENDRANAGAR-ROAD,RAIPUR(C.G.) Vrs. ^. ^ 2- 0-^- 1^' 4. ARJINDER KAUR W/0 LATE MANJIT SINGH, AGE 32 YEARS, PARAMJIT KAUR S/0 LATE MANJIT SINGH AGE 18 YEARS HARPRIT SINGH S/0 LATE MANJIT ^u^y??>a^-w^w^^^/v7'^ /^^/>£S/'C^^AIr-t k'<>'-^ ALL RESIDENT - BEHIND TIN DARSHAN MANDIR, KAMP-1, BHILAI, TEH. & DISTRICT- DURG (C.G.) TAPAS PALIT S/0 MOTILAL TARUN PALIT, RESIDENT- N.B.B.F.C., TRANSPORT, TATIBANDH RAIPUR (C.G.) APPEAL UNDER SECTION 30 OF THE WORKMENS COMPENSATION ACT- 1923 .^'"ss% ^^ HIGILCOURT OF CHHATnSGARH.JtILJ^PUR DB: HOW»BLEL M. QUDDUSI fis HON'BLE G. MINHAJUDDIN, JJ M.AlCLNo. U70F2P10 APPBLLANT RESPONDENTS: Divisional Maiiager, the Oriental 133-suraace Coinpany Ltd. Vs. Arjiader Kaur aad 3 ofhers MISCBLLANBOU8 APPEAL UNDBR SECTION 30 OF THE WORKMEN'S COMPENSAT20N ACT. 1923 Present: Mr, Sudhir Agrawal, counsel for the appellant. None for tiie rcspoudents. ORAL ORDBR (16.11.2011) Per I.M. OUDDUSI. J. 1. List is beiag revised. Case is agoin. called out No oue is present for fhe respondents despite repeated caUs. However, Mr, Sudhir Agrawal, couusel for fhe appeUaut is present. Therefore, we are mclmed to hear leamed counsel for fhe appellaat aad proceed exparte agamst the rcspondents, 2. This appeal has been filed by the Insuraace Compaay agaiast tlie impugned award dated 24.10.2009 passed by Commissioner for Workmen's Compensation Act, 1923 (Labour Court), Durg, graiiting a coinpeusation of Rs.3,56,980/- plus 30% penalty thereon that is Rs.1,07,094/-. 3. Brief facts of the case as per the version of fhe claiaiants are that on 16.07.2007 deceased Manjit Siagh was assigned duty ^^s-s^ ^Kte:^^ 4. to drive fhe Truck bearmg Regn.No.C.G.04-E/4645 owned by non-appUcant no.l. After loading tlie Tnick at Raipur, Maajit Siagh was goiag to Pune (Maharashtra) by driviag the said Truck. On tlie way at SakoM (Maharashtra), all of a sudden he suffered chest paia, due to which, he parked the Truck on fhie road side aad due to furtlier developiaent of paia ia chest, his coUeague aad others have adiaitted him ia Distdct Hospital, Bhaadara (Maharashtra) where fhe doctors have diagnosed him as fhe patient of braia heniorrhage aa.d paralysis. He was referred to Sector-9, BhUai Hospital where during fhe course of treatmeut, agaia fhe deceased sufiered heart attack aad died on 17.7.2007, It is alleged that the deceased worker died due to heavy burdensoine work assigned to him during the course of enxploym.ent under non-appUcaat no.l, which has caused heart attack resultiag ia his deafh. At the tune of accident, the deceased was aged about 42 years, he was eniployed as driver by non-applicaat no.l aad was drawing inonthly wages of Rs.4500/- plus 200/- as daily atlowan.ee. The clamiaiits beiag legal reprcsentatives/ dependents have filed appUcation under section 22 of fhe Workmen's Compensation Act, 1923 (for short 'the Act of 1923') for fhe total award ofRs. Rs.3,79,120/- on vadous heads. The Coniinissioner, W,C, Act, has held fhat Manjit Siagh has died duiiag tlie course of em.ployraent under non-applicaiit no,l, he was aged about 42 years, aad the claimaats are entitled to receive a coinpensation amount of Rs,3,56,980/- froin the appeUant Insuraace Conipaiiy aiid 30% of penalty fhereon Le. Rs.1,07,094/- froin non-appUcant no.l (owner). ^^ :,^ S- We have heard learaed counsel for tiie appeUaiit aad have also gone fhrough fhe records. 60 There is provision ia Workmen's Conipensation Act that conipensation caa be claiaied only under fhe scope of section 3(1) contamed in. Chapter-II. Section 3(1) is reproduced as under: 3. Einployer's Uability for conipensation.—(1) If personal iajuiy is caused to a workmaa by accident arisiag out of and in fh-e course of his eniployinent, his emiployer, shaU be liable to pay coinpensation ia accordance with fhe provisions ofChapter-II: Provided fhat the eniployer shall not be so Uable— (a) ia respect of any injury which does not result ia the total or partial disableinent of fhe workinan for a period exceediag three days; (b) ia respect of any iajury, not resultiag ra deafh or permaneut total disableinent caused by an accident which is directiy attributable to— (i) the workniaa haviag been at the tinie thereof under the iafluence of drtnk or drugs, or (ii) fhe wiUfal disobedience of fhe workmaa to an order exprcssly given, or to a rule expressly framed, for fhe purpose of securiag the safety of workmen, or (iii) fh.e wiUfiil reiaoval or disregard by thLe workinan of any safety-guard or ofher device which he knew to have been provided for the purpose of seciiriag th.e safety ofworkm.ao.. 7. If injiiry or fhe deatli has been caused ofher tliaa b}r aii accident, tlie liabillty to pay corapensation has not been nientioned ia tlie Worknien Coinpensation Act, ^< '^";^\- ^te..; ^ ^ 8. ReUaace has been placed on a decision of fhe Supreine Court ia Shakuntala Chandrcdcemt Shreshti 'v' Preibhakctr Maruti Gctrocili (2007) 11 SCC 668. In the said case the deceased had adniittedly sufFered a niassive heart attack. Nofhnig has been brought on record to show that fhe heart attack was caused whUe doiag aiiy job. Even accoidiag to fhe einployer, he at fhe relevaat tinie was inerely gettmg down froni the vehicle. In para 27 the Hon'ble Apex Court held fhat "an accident may lead to deafh but fhat an. accident had taken place niust be proved. Only because a deafh has taken place ni course of eniploynient wiU. not amount to accident. In ofher words, deafh must arise out of accident. There is no presuinption fhat aa accident had occurred, In case of this nature to prove fhat accident has taken place, factors which would have to be estabMshed, iater aMa, are : (i) stress aad straia adsiag durmg fhe course of euiployinent, (ii) nature ofemployment (iii) Injuiy aggravated due to stress and straia. In paras 29 & 30, Hon'ble the Apex Court has fuilher held as under : W29. "Only because a person dies of heart attack, the saine does not give rise to autoiaatic prcsuinption fhat the saine was by way of accident. A person may be sufferiag from a heart disease although he raay not be aware of fhe same. Medical opuiion will be of relevaace providiag giiidaace to court ia this behalf." <(30. Circumstaaces must exist to estabhsh that death was caused by reason of failurc of heart was because of stress aad straia of work. Stress aad h strain resultiag ia a sudden heart failure ia a case of tlie present nature would not be presuined, No legal fiction therefore caa be raised. As a person suffermg froni a heart disease inay not be aware fhereof, inedical opinion therefore would be of relevaace. Each case, fherefore, has to be considered on its own fact and no hard and fast rule can be laid down fherefor,w Fuifh.er ia para 39 it has been held as under: "39. Unless evidence is brought on record to elaborate that fhe death by way of cardiac arrest has occiured becazise of stress aad straia, fhe Coiiiniissioner would not have jurisdiction to grant damages. In ofher words, fhe claiaiant was bound to prove jurisdictional fact before fhe Coinniissioner, Unless such jurisdictional facts are found, fhe Conindssioner will have no jxuisdiction to pass aa order. It is now weU setUed fhat for ardviag at a findiag of jurisdictional fact, reference to aay precedent woiild not be helpfal as a little deviation froxn the fact of a decided case or an. additional fact inay inake a lot of dtfference by ardviag at a correct conclusion. For the said purpose, fhe statutory authority is requrred to pose unto himselfthe right question." However, despite the above position of law laid down by Honlble Apex Court, Para 44 contams a direction fhat ia the event aiiy amount has been paid to the appeUaat/claimaat, the saaie need not be refunded. 9. A perusal offhe record shows that fhe deceased did not die due to accideutal iajury but accordiag to the claiQiaats he developed chest pam due to straia and stress durmg fhe course of employment aad died in fhe hospital. Dr, A. H. Khaa who 6 treated the deceased has deposed fhat the deceased was patient ofblood pressure aad sugar. There was paralysis on his left side, Blood test and C.T. Scaa were conducted on him. But uo report of C,T, scaa was produced. He has further deposed fhat ia fhe prescriptions^, there was inention of blood pressure aad paralysis. There was no heart attack. On a queiy put to him fhat whefher the sleeplessness aiid heavy work would be reasons for blood pressure, he repUed fhat fhere are no definite reasons for blood pressurc but niental stress would be one of the reasons, This witaess has not clearly stated tliat the death was due to cardiac arrest or soiae other reasons, It also appears fhat no postoiortem. was conducted on the person of deceased, fherefore, the report of postoiortem was not available, In fhese circiirastaaces, we are of the opiaion th.at the matter requires reconsideration at fhe end of Commissioner, Workmen Compensation to ascertam. fhe fact that whefher the deceased died of heart attack due to stress aiid strain ia fhe course of einploynient or sorae ofher reasons. 10. Hence, we allow fhis appeal ia part, set aside tih.e iaipugned award dated 24.10.2009 and remit the matter back to the Commissioner, Workmen's Compensation, for decision airesh m the light of the observations made above, The Coiamissioner may reexamine tiie doctor aad if necessary may also get medical opiaion from speciaMst doctors so as to reach a definite findiag, 11. Needless to mention fhat the parties shall be allowed to amend the pleadings, adduce further evidence, j51e documents or get the documents verified etc., and thercafter the Cominissioner ^' ^'^lv f&^ ?^ a ^\^^^ ^ shall inake fhe award afrcsh at fhe earliest. The pardes shall appear before tlie court below on 16th Jaauaiy, 2012, The records of the Tribiinal shaU be sent back wifhout further delay. Snice no one appears on behalf of fhe respondents before this Court, notice be issued to fhe respondents for securing their presence or for causiag their representation before the Court below. The amount which has been deposited by fhe Insuraace Company shaUL be subject to the fresh decision of fhe Conunissioner, 12. Iu fhe result, the appeal is allowed in part. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Rao