HIGH COURTOF CHHAmSGARH AT BILASPUR Misc.Appeal (ClNo. 766 of 2007 SB: Hoa'ble Shri Justice R.L. Jhaawar APPELLANT The New India Assuraace Coinpany Lunited. Versus RESPONDENTS Sint. Gayatri Khatri aad others. ORDER Post for order oa5a>.2.2011 -a-'-L. Sd/- R.L. Jhanwar Judge -»!>j; v J HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI R.L.JHANWAR, J. APPELLANT (Insurer) RESPONDENTS (Claimantsl Misc. Appeai tC) No. 766 of 2007 The New India Assurance Company Limited, through Divisional Manager, The New India Assurance Company Limited, Second Floor, Rama Trade Center, Bus Stand Road, Bilaspur (Chhattisgarh) VERSUS 1. Smt. Gayatri Khatri Wd/o Deepak Khatri, aged about 23 years, Cast Uriya Gada 2. Ku. Anjali, D/o Late Depak, aged 7 years 3. Ku. Rajani, D/o Late Depak Aged 5 years 4. Ku. Pooja D/o Late Depak, Aged 3 years. Respondents No.2 to 4 minors represented through respondentNo.1 5. Shri Duttiya Khatri S/o Buttu Khatri, aged about 65 years. 6. Vimla Khatri W/o Duttiya, aged about 60 years. 7. Jayatri Khatri, D/o Duttiya Khatri Aged 18 years. All respondents No. 1 to 7 R/o Indirapara Supala, Bhilai, Distt. Durg (Chhattisgarh). 8. Shri S.B.Saha, S/o Unknown, aged about 70 years. 9. Shri Arvind Saha, S/o Unknown, Aged about65years. Both Respondent No. 8 & 9, R/o Malviya Nagar, Durg (Chhattisgarh) 10. Shri Moolchand Saha, S/o Unknown, aged about 60 years, R/o Potiya Road, Durg (Chhattisgarh) 11. Managing Director, Simplex Engineering Co. Ltd., Industriai Area, Bhilai, Dist. Durg Chhattisgarh. APPEAL UNDBR SECTION 30 OF THE WORKMEN'S COMPENSATION ACT. 1923 Appearance; - Shri Saurabh Sharma, counsel for the appellant. Shri Vipin Tiwari, counsel for respondents No. 1 to 7. Shri R.g, Sinha, counsel for respondents No.8 to 11. fEmolovers) ORDER (Passedon^ .02.2011) '"^.^ "l~ "!'s€/ ^^^zss-ss^'' This is an appeal by th®insurer directed against fhe order dated 23.04.2007 passed in Case No. 104/04 cate- B-IW.CAct/Fatal by the Commissioner of Workmen's Compensation, Labour Court, Durg (henceforth 'the learned Commissioner') by virtue of which, the learned Commissioner has awarded sum of Rs.1,95,219.00 as compensation to the ciaimants/respondents No.1 to 7 for the death of Deepak. 2. Brief facts, in a nutshell, are that the deceased Deepak was working as Helper under Simplex Engineering Unit No.2, Bhitei. On 30.11.2001 the workmen Deepak Khatri sustasned injuries including sweliing when a heavy weight piate measuring 100 mm. fell on his right leg. He was admitted in B.M.Shah Hospital where the said injuries were covered by plaster. Since injuries sustained by him got infection, Deepak was referred to Sector - 9 Hospital where an amount of Rs.10.000/- was afleged to have been demanded. FinaiSy, Deepsk was referred to Medical College HospitaS, Raipurwhere he died on 2.1.2002. 3. On account of death of workmen Deepak, claim petition was filed before the learned Commissioner claiming compensation of rs. 1,56,175/-. The appellant and respondents No.8 to 11 by filing written sfatements denied al! the averments made in claim petition. 4. Aii the parties led their evidence before the learned Commissioner and the Searned Commissioner has, after appreciating the evidence available on record and submissions by the respective parties, held that death of Deepak Khatri took ptace arising out of and in the course of employment and awarded sum of Rs.1,95,219/- as tota! compensation to the ciaimants. The learned Commissioner while fastening the liability on the appetiant/insurer directed the .appellant that compensationshaS! be deposited within one month, faiiing which, the compensation shail further carry interest at 10% per annum. it is this order, which is undsr chaltenge by the appeiiant/insurer. 5. Shri Saurabh Sharma, ieamed counsel for the appeilant vehemently argued that the learned Commissioner has erred in holding that the deceased Deepak has died during the course of employment; has a!so erred in holding the appeltant/insurer iiabte to pay compensation along with penai interest; the leamed Commissioner ought to have held that the death of deceased Deepak took place due to malaria and not during the course of his empioyment. On these premises, learned counsel urged that the impugned award be set aside. 6. On the other hand, Shri Vipin Tiwari, leamed counsel for the claimants / respondents No.1 to 7 argued in support of the impugned order while Shri R.R.Sinha, leaned counsel for respondents No.8 to 11 adopted the arguments of learned counsel for the appeliant / insurer. 7. I have heard iearned counsel for the parfes at length and perused the record of the Court beiow inciuding impugneci order, 8. In the present case, the questions that remain for consideration is as to whether death of dsceased Deepak took place due to accident arising out of and in the course of employment and whether the appellant / insurance company is wrongly hsid Siabie to pay compensation when the deceased died of malaria? In this connection, J shall first deal with evidence adduced by the parties. It has come in the evidence that the deceased was empioyee of one Confractor namely !.S. Patel and was working in the Simplex Engineering Company Limited, Bhitai. On 30.11.2001 white Deepak was working, hs got injuries on his knee when a heavy vi/eight plate measuring 100 mm fei! on his leg. Primary aid was given So him and thereafter he was discharged and on the very next day i.e. 1.12.2001 he attended to his duties as usual. It has atso come in the evidence thaf deceased was admitted in B.iVi.Shah Hospita!, Bhiiai and fhereafter he was referred to hospital situate at Sector - 9, Bhiiai where since a sum of Rs.10,000/- was aileged to have been demanded, therefore, for want of such amount, he was not in a position to be admitted and then he was admitted in Medical College Hospital, Raipur wher®he died on 2.1.2002. Thus, after perusing ttie evidence of A.W.1 Dutia, A.W.2 Gayatri and also N.A.W.1 Y.M.Dave, it is clear that on 30.11.2001 dsceased was working in Simptex Engineering Co. Ltd. and sustained injuries on his knee. Even then the deceasedattended to his duties on the very next day i.e. 01.12.2001 and after that he was admitted in B.M.Shah Hospitat, Bhilai and then in Secto-9, Bhilai hospital and that as he was not in a position to be admitted for want of money, he was admitted in Medical Coiiege Hospitai, Raipur on 02.01.2001 where he died on the same day. '-;»•«-. % J tiB^?'1! 1 s^'.^ It is also clear from the evidence that Exs.D.1, D.2 and D.3 are the policies showing coverage of the risk of workmen under the respondent/employer and those policies were in foree. Along with the above exhibits, exhibits relating to medical documents have also been fited. Ex.P.4 is the out patient ticket which cleariy shows that the deceased was admitted on 02.12.2001 in B.M.Shah Hospital and Medical Research Center, Bhilai for treatment of his left knee and thereafter he was discharged on (.12.2001. It was also mentioned therein that again the deceased was admitted for complaint of malaria on 17.12.2001. Ex.P.4 also dearly shows that he was referred to Sector 9 hospital, Bhilai for better treatment. Thereafter, since the deceased was not in a position to be admitted for want of money, therefore, he was admitted to Medical College Hospital, Raipur on 02.01.2002. Ex.P.10 is the document which is death report which shows that the deceased died on 02.01.2002 due to cerebral malaria. 9. An accident may lead to death but that an accident had taken place fce- must-,proved. Only because death has taken piace in course of empioyment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. Under Section 3 (1) of the Workmen's Compensation Act, 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 death because 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 ^aid that the death arose out of the employment and the employer woutd be liable. In the present case, as has a!ready been discussed above that no doubt on 30.11.2001 the deceased got injury on his knee when a heavy weight plat fell on his ieg and on the very next day i.e. 01.12.2001 he attended to his duties as usual and then he was admitted in B.M.Shah Hospital on 02.12.2001 and again on 17.12.2001 for complaint of malaria and ultimatety he died on 02.01.2002 due to cerebral malaria disease. Moreover, witnesses of the claimants did not state even single word that the deceased was suffeni l^ from malaria; after one month of accident, they admitted the deceased in Medical College Hospital, Raipur and they did not produce any document relating to treatment of injury sustained by the deceased arising out of and in the course of employment. Even they did not produce any documentto show that frqm where the deceased got medical treatment from 30.11.2031 to 20.12.2001. When the deceased, after getting medical treatment, attended to his duties on the very next day i.e. 1.12.2001 shows that the injury sustained by him was simple in nature and thereafter he was discharged after few days. The claimants have utterly failed to prove that there was some casual connection between the death of Deepak and his employment and since they have failed to show such, it is difRcult to hold that employer of the deceased and appellant/insurer are liabie to pay compensation. The tearned Commissioner while appreciating was not justified in not considering the above aspect and heid the appellant/insurer liable for payment of compensation. 10. For the foregoing reasons, it is held that death of deceased took place not in the accident arising out of and in the course of employment and the deceased died of cerebral malaria, as is evident from Ex.P.10. !t is also heid that neither employer nor insurer of company is liable to pay compensation. 11. Consequently, the appeal by the insurer is allowed. The impugned award is set aside. ——— §d/- R.L. Jhanwar Judge