The New India Assurance Co. Ltd. v. Smt. Dhan Bai

1 Smt. Dhan Bai, W/o late Shri Mannu Vishwakarma, around 35 years.

Ku. Poornima, D/o late Shri IVIannu Vlshwakarma, around 15 years.

Ku. Pooja, D/o late Shri Mannu Vishwakarma, aged about 12 years.

Dharamraj, S/o late Shri Mannu Vishwakarma, agedaround 5 years. 2 to 4 are minor through their mother and natural guardian Applicant No.1. All R/o Rajendra Prasad Nagar (ResDondentNo.1)

M. Bhrlai Ward No.28, District Durg (CG) Mohan, S/o (Khursipar), (Contractor), S.M.S. 1, B.S.P. Bhilai, Tehsil & District Durg (CG) R/o StreetNo. 10, Qtr. No. 2-B, Sector- 5, Bhilai. (Respondent No.2)

Managing Director, Bhilai Steel Plant, Bhilal, District Durg (CG) (APPEAL UNDER SECTION 30 OF THE WORKMEN'S COIVlPENSATtON ACT) (SB: Hon'bte Mr. N.K. Aaarwah J.) ^x s^^$^ Present : Shri K.N.Nande, counsel for the appeltant. Shri B.P.Singh, counsel for respondents No.1 to 4 Shri K.S.Pawar, counsel for respondent No.5 Shri P.R.Patankar, counsel for respondent No.6 AWARD (Passed on ^ .05.2012) This insurer's appeal against the award dated

16.09.2011 passed by the Commissioner for Workmen's 'the Compensation-cum-Labour Court, Durg (for short Commisstoner') jn case No. 50/WCA/2009 (Fatal). Facts ofthe case, in brief, are as under: I) The husband of responctent No.1 and father of respondents No.2, 3 and 4 - late Mannu VJshwakarma was working as a Labourer wlth respondent No.5. The principal employer is respondent No.6. On 10.05.2007, at about 3.30 p.m. durtng the course of his employment, Mannu Vishwakarma suddeniy developed chest pain, he was admitted to hospital where Doctor decjared him dead. The autopsy was conducted wherein the Doctor could not opjne the cause of hts death. ii) Admittedly, late Mannu Vishwakarma died during the course of empSoyment and was also jnsured under the workmen's compensation policy issued appellant/jnsurance company. "^^' ,.,^"^^\ '% .^ y,^""'% 'w^'^ ::^^^'" ^... m iii) The respondents No.1 to 4, i.e., dependents of deceased Mannu Vishwakarma preferred a clalm under Sectlon 10 of Workmen's Compensation Act, 1923 (for brevity 'the Act of 1923'). iv) The respondents No.5 and 6 denied, cteceased died of accidental Snjury in the course of and out of employment. v) The Commissioner, however, hoiding deceased - Mannu Vishwakarma died of an accidental injury in the course of and out of his emp!oyment, awarded compensatjon of Rs.2,75,884/- against r^pondents No.5, 6 and appellant herein.

Hence, this appeal under Section 30 ofthe Act of 1923. Thi's Court, on 15 12.2011, admitted this appeat on the following substantlai question of law: 'Whether Commissioner for Workmen's Compensation, Labour Court, Durg, was justifled in holding Mannu Vlshkarma dled on account of injuries sustained by Nm which arose out of and during the course of employment. " Shri K.N.Nande, tearned counsel appeartng appellant, placing reliance upon the judgment of Supreme Court in the case of Shahuntala Chandi'akant Shreshtfv, Prabhakar Msnitl Garvali and another, (2087) 11 SCC @88, would submit: the respondents No.1 to 4 have faiSed to discharge their burden to prove, deceased died of accidental ' y-^' I i- ^T3^<' ^^^^,. ''" ^ 1 i ,..';' .^ "^^"•^:^ v^"u':' ^. l<;^ injury in the course of and out of employment; atso failed to prove casual connection of employment with cleath, and therefore, the Gommissioner has certainiy erred in aflowing respondents No.1 to 4's cSaim petition and in fastening liabllity of payment of compensation upon the appetlant.

5. Shri KS.Pawar and Shri P.R. Patankar, learned counsel appearing for respondents No.5 and 6 supported the contention raised by the appellant's counsel.

6. On the contrary, Shri B.P.Singh, leamed counsel appearing for the claimants/respondents No.1 to 4 c©ntended: the Commissioner has rightiy held, the accident had occurred due to stress and strain arising out of and during the course of employment and thus has rightly passed the award. It was further contended: in any case, since the Doctor, who conducted the autopsy. could not opine the cause of death, therefore, the Commjssioner should have given an opportunity to the cjaimants/respondents No.1 to 4 to examine the Doctor, who conducted the autopsy and also to adduce evidence to clarify the exact cause of death and the fact whether or not deceased dled of an acoidentai injury in the course of and out of employment and the case may be remanded back to the Commissioner for the above purpose. :1^ ^,

I have heard the counsel appearing for the parties and perused the order jmpugned including records of Commissioner.

Admittediy, while workjng under the empSoyment of respondent No.5, deceased - Mannu Vishwakarma developed severe chest paln and ultimately has died. It is also not In dispute, the Doctor, who conducted th@ avtopsy, could not oplne the cause of death in the post-mortem report (Ex.P.4).

The Supreme Court, of Shakuntala Chandrakant Shreshti (supra) has held: what is necessary for attractlng the charging provision contained in Section 3 of the Act of 1923 is that (i) an injury must be caused to the workman; ji) such injury must have been caused by an accident; and (iii) it arose out of and in the course of his "Accident", ordinarily, would have to be employment. understood as unforeseen or uncomprehended or as that which coutd not be foreseen or comprehended. A finding of fact, thus, has to be arrlved at, intQr aiia, having regard to nature of the work and the situatjon in whieh the deceased was placed. An accident may lead to death but that an accident had taken place must be proved. Onty because a death has taken place jn course of employment will not amount to accident. Death must arise out of accident. There is no presumptjon that an accident had occurred. The \ ^ J. ;•••' 6 © Supreme Court jn the above case, has further held: the onus is upon the applicant to show that it was the worR and the resulting strain which contributed to or aggravated the injury. if the evidence brought on recorcis establishes a greater probabijity which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case.

Reverting to the facts of the present case, jndlsputably, the c!aimants examined respondent No.1 - Dhan Bai, the wldow of deceased - Mannu Vishwakarma whereas respondents No.5 & 6 dld not enter into witness box. Dorctor, who conducted the autopsy, has aiso not opined any cause of death in the post-mortem report (Ex. P.4). None of the partles have examlned the Doctor, who conducted the autopsy. The evidence availabie on record is also not sufficientto amve at a conclusion whether or not deceased died of accidental jnjury in the course of and out of employment Therefore, jn the facts and circumstanGes of the present case, in the considered opinlon of this Court, St wouid be proper to remand the matter to the C(»nmissioner for deciding the claim case afresh.

For the reasons mentioned hereinabove, the appeal preferred by the appellant/insurance company is allowed In part. The award impugned passed against the appeilant is '"••^ /y tf'.^ ^ set aside. The matter Is remitted to the Commlssioner for decjding the claim petition filed by the responderrts No. 1 to 4 afresh

Needless to mention here that the Commissioner shall afford fuli and proper opportunity to the parties to adduce evidence, to examine the Doctor, who conducted the autopsy and to file additjonal documents, If any.

In view of above, it is not necessary at this stage to answer the substantlal question of law.

Parties to the appeal are direct^t to appear before concerned Commjssioneron 23.05.2011. Record of the Commlssioner be sent back forthwith.