1 FA1732.15 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1732 OF 2015 1. Kanchan W/o Badrinarayan Mule, Age : 27 Years, Occu. : Household, 2. Ku. Neha D/o. Badrinarayan Mule, Age : 8 Years, Occu. : Nil, 3. Deepak S/o Badrinarayan Mule, Age : 6 Years, Occu. : Nil, Applicant Nos. 2 and 3 are minors Under Guardianship of Applicant No. 1 4. Majalsabai W/o Natha Mule, Age : 64 Years, Occu. : Household, All R/o. : Aundha (Nagnath), Taluka : Aundha (Nagnath), District : Hingoli .. Appellants Versus 1. Laxmibai W/o Madhavrao Deshmukh, Age : Major, Occu. : Business, R/o. : Aundha (Nagnath), Taluka : Aundha (Nagnath), District : Hingoli 2. The New India Assurance Co. Ltd., Through its Branch Manager, Having office at : “Yeshodeep Building”, Shivaji Road, Parbhani, Taluka and District : Parbhani .. Respondents Shri S. V. Surywwanshi, Advocate for Appellants. Respondent No. 1 is served. Shri A. B. Gatne, Advocate for the Respondent No. 2. 2 FA1732.15 CORAM : S. V. GANGAPURWALA, J. CLOSED FOR JUDGMENT ON : 15.10.2015 JUDGMENT PRONOUNCED ON : 30.10.2015 JUDGMENT :- 1. The present appellants had filed an application for compensation before the Commissioner, Workmen’s Compensation, Hingoli, seeking compensation on account of the death of Badrinarayan who died due to heart attack. The said claim application is rejected basically on the ground that, the appellants could not prove that, deceased died during the course of and out of employment. 2. Mr. Suryawanshi, the learned counsel for appellants submits that, the Commissioner, Workmen’s Compensation, Hingoli, has held the present appellants to be the legal heirs of deceased Badrinarayan. It has also held that, the deceased was employee of respondent No. 1. However, committed an error in holding that, the appellants could not prove that, the deceased died during the course of employment. The learned counsel submits that, the evidence is led to show that, the deceased who was the driver with respondent No. 1 was directed to go on tour by the vehicle of respondent No. 1. P. W. No. 2 is examined and he has also proved that, he was in the vehicle driven by the deceased and P. W. No. 2 alongwith other persons such as Madhukarrao Dodal, Ratnakar Mukkilwar, Dharmraj Karewar and Smt. Shrikumar Mukkilwar had gone on pilgrimage. On 01.08.2010 they started from Ramtek and from Ramtek to Lakhana Daul. Thereafter, they went to Jabalpur and from Jabalpur they went to Bajrang Gad and from Bajrang Gad to Chandkhedi (Rajasthan). 3 FA1732.15 From Rajasthan they reached to Jelar (Madhyapradesh) and from Jelar (Madhyapradesh) they reached to Susner (Madhyapradesh) on 06.08.2010 at about 10 a. m. When they reached at Susner driver i.e. the deceased got down from the vehicle on account of chest pain and he died on the spot. The learned counsel further submits that, the said P. W. No. 2 further deposed that, the deceased was continuously driving the vehicle and therefore there was strain on his body and mind and he died due to heart attack. Said witness further deposed that, doctor told him that, deceased died due to heart attack because of strain on his mind and body. The learned counsel submits that, postmortem report is produced. According to the learned counsel, only because the doctor did not come to the Court and depose before the Court, the Court has failed to consider the case of the appellants. The learned counsel submits that, on number of occasions summons were issued to the concerned doctor. However, the doctor did not respond to the suit summons and did not attend the Court for giving evidence. According to the learned counsel, when doctor is not responding and could not be procured without an amount of delay then, the said postmortem report could have been considered. Even in view of Section 32 of the Evidence Act. The learned counsel relies on the Judgment of the Apex Court in a case of Prithi Chand V/s. State of H. P. reported in A. I. R. 1989 S. C. 702. According to the learned counsel, appellants have to establish their case on the touch stone of preponderance of probability and standard of proof beyond reasonable doubt is not to be applied. The learned counsel relies on the judgment of the Apex Court in a case of Bimla Devi and Others V/s. Himachal Road Transport Corporation and Others reported in A. I. R. 2009 S. C. 2819. So also, the judgment of learned Single Judge of this Court in a case of Prakash S/o Mahadeorao Nirmal V/s. 4 FA1732.15 Rajesh Ramfer Yadav and Others reported in 2014 (3) Mh. L. J. 415. According to the learned counsel, the postmortem report can be read in evidence just like F. I. R., spot panchanama, inquest panchanama. The learned counsel submits that, the Evidence Act is not applicable to the provisions under Workmen’s Compensation Act. As such, the strict proof as is required under the Evidence Act to prove postmortem report would not be required. The learned counsel relies on the judgment of Division Bench of this Court in a case of Zubeda Bano Wd/o Abdul Aziz Qureshi and Others V/s. Divisional Controller, Maharashtra State Road Transport Corporation, nagpur and Others reported in 1990 (2) Mh. L. J. 685. 3. The learned counsel further submits that, the Commissioner, Workmen’s Compensation, Hingoli, also ought to have considered that, there was a casual connection to the death of deceased with that of his employment as a driver. The vocation of driving was a material contributory factor for the death. The same is attributed to the nature of employment which was in the course of his employers business. The learned counsel relies on the judgment of the Apex Court in a case of Param Pal Singh Through Father V/s. National Insurance Co. and Another reported in 2013 (3) Mh. L. J. 934. The learned counsel submits that, the Commissioner has held the income of the deceased as Rs. 4,000/- per month as against Rs. 6,000/- per month, which is proved by the evidence. Even respondent No. 1 has admitted that, the respondent No. 1 was paying salary of Rs. 6,000/- per month to the deceased. There was no reason to hold the salary of the deceased as Rs. 4,000/- per month. 4. Mr. Gatne, the learned counsel for the respondent / Insurance Company submits that, the appellants failed to examine 5 FA1732.15 the doctor. In absence of the evidence of the doctor the cause of the death by heart attack is caused by employment only is not proved. Only because a person dies of heart attack the same does not give rise to automatic presumption that, the same was caused due to employment. No legal fiction can be raised in regard to the said fact. Only medical evidence can prove that, the heart attack was because of stress and strain of work. In absence of the medical evidence the case put forth by the appellants cannot be accepted. The learned counsel relies on the judgment of the Apex Court in a case of Shakuntala Chandrakant Shreshti V/s. Prabhakar Maruti Garvali and Another reported in 2007 (11) S. C. C. 668. The learned counsel submits that, the onus is upon the appellants to show that, it was the work and the resulting strain which contributed to or aggravated the injury. The finding to that effect cannot be arrived at without the medical evidence. There is no evidence that, employment contributed to the death. 5. The learned counsel further submits that, there is nothing on record to suggest that, the deceased was getting Rs. 6,000/- per month. The Tribunal has considered the said aspect also. As the death was not on account of the employment the claim petition is rightly rejected. 6. With the assistance of learned counsel I have gone through the judgment and the record and proceedings. 7. This being an appeal under the provision of Employees Compensation Act, can only be entertained on substantial question of law. Upon hearing the learned counsel, the substantial question of law as arises in the present petition can be culled out as under - 6 FA1732.15 “Whether the Commissioner has applied the test of preponderance of probability while arriving at the conclusion that, the death of deceased was not due to employment ?” 8. The fact that, the deceased was employed with respondent No. 1 is accepted by the Commissioner. It is also the fact borne out by the evidence that, the deceased was asked to carry passengers on a long tour for pilgrimage. P. W. No. 2 was one of the member of the tour party, who had gone on pilgrimage in the vehicle driven by the deceased is examined before the Court. The said witness has given the details threadbare from the start of the journey till the deceased suffered heart attack and died. He has specifically stated that, he knows deceased Badrinarayan Natha Mule. On 01.08.2010, he himself and his wife, Madhukar Dodal and his wife, Ratnakar Mukkirwar and his wife, Dharmraj Karewar and his wife and Shrikumar Mukkirwar and his wife went to pilgrimage by the Cruiser Jeep of Laxmibai Deshmukh, on this jeep deceased Badrinarayan was the driver. He has further deposed that on 01.08.2010, they started from Hingoli to Ramtek. Thereafter, they went to Lakhana Daul, from Lakhana Daul to Jabalpur and from Jabalpur to Bajrang Gadh, from Bajarang gadh to Chandkhedi (Rajasthan) and from Chandkhedi they reached to Dola Madhyapradesh on 05.08.2010. Thereafter, they started for susner from Dola Madhyapradesh at about 5:00 a. m. and they reached at susner on 06.08.2010 at about 10:00 a. m. After they reached Susner at about 10:00 a. m., when they got down from the vehicle, the driver Badrinarayan complained of chest pain and he died on the spot. He has further deposed that Badrinarayan Mule was alone driving the vehicle continuously and therefore 7 FA1732.15 there was strain on his body and mind and he died. They took the deceased to Civil Hospital, Susner. Doctor told that deceased died due to continuous driving of the vehicle and due to heart attack. He has further deposed that thereafter they gave information to the vehicle owner about the death of deceased. Then, son of the respondent No. 1 came to Susner in another vehicle and they brought dead body of the deceased Badrinarayan to Aundha Nagnath. He has further deposed that they have canceled the tour and came back. This evidence is not shattered in the cross examination. 9. In a case of, Shakuntala Chandrakant Shreshti V/s. Prabhakar Maruti Garvali and Another referred supra, as relied by respondents the Apex Court has observed that - “ the onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. If the evidence brought on record establishes a greater probability which satisfied a reasonable ground that the work contributed to the causing of the personal injury. It would be enough for the workmen to succeed but the same would depend upon the facts of each case.” 10. In the present matter the claimants have pleaded that, it is because of the strain that the deceased was driving the vehicle continuously for 5 days he suffered a heart attack. The said fact is corroborated by the member of the touring party. The deceased was driving the vehicle continuously for 5 days from Maharashtra to Madhaya Pradesh thereafter to Rajasthan. The 8 FA1732.15 member of the touring party i.e. P. W. No. 2 has also testified that, the deceased died due to heart attack and the doctor who had attended the deceased had told that because of the stress he died. There is ample evidence on record to suggest that it was the work and the resulting strain which contributed for the heart attack and consequential death of the deceased / driver. The copy of the postmortem report substantiates the said fact. Efforts were made by claimants to issue summons to the doctor. In spite of repeated summons the doctor did not appear. The other evidence on record establishes the case of the claimants with a greater probability that the employment contributed to the death of the deceased / driver. The Apex Court in a case of Shakuntala Chandrakant Shreshti V/s. Prabhakar Maruti Garvali and Another referred to supra has observed as under - “In a case of this nature (death due to cardiac arrest) to prove that accident is taken place, factors which would have to be established, inter alia, are : 1] stress and strain arising during the course of employment, 2] nature of employment, 3] injury aggravated due to stress and strain.” 11. Though there may not be any presumption about heart attack being caused because of the employment still considering the evidence on record it is clearly established that the deceased was driving the vehicle continuously for 5 days. The said fact is corroborated by the evidence of the P. W. No. 2 i.e. the tour member. So also he has stated that, the doctor told that, the deceased died due to heart attack caused by strain of continuous 9 FA1732.15 driving. The Apex Court in a case of, Prithi Chand V/s. State of H. P. referred supra has observed - “carbon copy made by one uniform process of certificate of doctor given in discharge of professional duty and the doctors attendance could not be procured without an amount of delay the copy is admissible.” In the present case postmortem report is not relied only on the ground that doctor is not examined. The record shows that time and again summons were issued to the doctor however the doctor did not respond. 12. Considering the aforesaid conspectus of the matter it is clear that, deceased Badrinarayan died due to heart attack during the course of and out of employment. 13. The next question would be monthly salary of the deceased. It is avered that, his salary was Rs. 6,000/- per month. The Commissioner found the said salary to be exorbitant. There is no actual proof of the salary being received by the deceased. But Tribunal held the salary to be Rs. 4,000/- per month. I do not see any illegality in the same. Considering the salary to be Rs. 4,000/- per month, age of the deceased as 32 years and by applying multiplier of 203.85 the claimants would be entitled to Rs. 4,07,700/- (Rs. Four Lacs Seven Thousand Seven Hundred). The Commissioner has also framed the issue of penalty. However had answered in the negative on the ground that issue No. 3 was answered in the negative. The claimants would be entitled for penalty of 50% i.e. Rs. 2,03,850/- (Rs. Two Lacs Three Thousand 10 FA1732.15 Eight Fifty) from the employer i.e. respondent No. 1. In the result, I pass the following order - I] The appeal is allowed. II] The respondent Nos. 1 and 2 shall jointly and severally pay an amount of Rs. 4,07,700/- (Rs. Four Lacs Seven Thousand Seven Hundred) to the claimants / present appellants alongwith interest at the rate of 12% per annum from the date of petition till realization. III] The respondent No. 1 / employer shall pay 50% of the amount as penalty to the claimants i.e. Rs. 2,03,850/- (Rs. Two Lacs Three Thousand Eight Hundred Fifty). [ S. V. GANGAPURWALA, J. ] sam/Oct. 15