High Court
Legal Reasoning
(1)fa406.21IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 406 OF 2021WITHCIVIL APPLICATION NO. 14645 OF 2019Varishth Bhu- Vaidnyanik...AppellantBhujal Sarvekshan and Vikas Yantrana,Administrative Building,Old Collector Office Campus, LaturVERSUS1.Varsha Maruti Ingole, ...RespondentsAge-Major, Occu-Household2.Rohit Maruti Ingole,Age-Minor, Occu-Education3.Om Maruti IngoleAge-Minor, Occu-Education(Claimant Nos. 2 and 3 both minorAge U/g of mother claimant No.1All R/o. Prakash Nagar (Vikas Nagar)Barshi Road, LaturMr. S. K. Shirse, Advocate for the appellant Mr. S. S. Manale, Advocate for respondent Nos. 1 to 3CORAM:KISHORE C. SANT, J.RESERVED ON:27th JUNE, 2024PRONOUNCED ON:11th JULY, 20241 of 11 (2)fa406.21JUDGMENT:1.This appeal arises out of the judgment and orderdated 04-05-2019 passed by the learned Commissioner underEmployees Compensation Act, 19823/ Judge. Labour Court,Latur in Application (WCA) No. 11/ 2017. By way of impugnedjudgment and order the learned Commissioner held thatdeceased Maruti aged 38 years died of injury caused in accidentduring the course of employment with respondent on 23-09-2016. The appellant employer by applying relevant factor of189.56 is directed to pay the lump-sum compensation ofRs.7,47,600/- @ 12% from one month of the date of accident tillthe date of depositing of the amount. Further penalty wasdirected of Rs.3,73,800/-. Present appellant is respondent beforethe learned Commissioner. Present respondents are originalclaimants before the learned Commissioner.2.Facts in short giving rise to the present appeal are asunder:-2 of 11 (3)fa406.21a]That deceased Maruti who happened to be husbandof applicant No.1 and father of applicant Nos. 2 and 3 who wasworking under the employment of respondent. He was workingsince 18-10-1995 as class-IV employee who was paid wagesRs.8000/- per month. On 30-09-2016, he was carrying bundlesof documents from the office of respondent to office of ZillaParishad. While carrying those documents he fell down on stairsof Zilla Parishad, in which he sustained grievous injuries on hishead. He was carried to the hospital, where he died even beforetreatment. After the accident claimants issued a notice underunder Section 10 of the Employment Compensation Act on 19-12-2016 and called upon respondent to deposit and paycompensation amount. A notice was replied by respondent.Though it was admitted that deceased was in employment, hisworking hours were different and at the time of accident it wasstated that he was not on duty. Since the respondent failed topay the compensation, the applicants filed application. c.In the application, the defense of the respondent3 of 11 (4)fa406.21mainly is that at the time of death deceased was not on duty. Hisduty hours were from 6 am to 10 am and 6 pm to 10 pm asGuard/Watchman. The accident took place at Zilla ParishadBuilding. When the accident took place, he was not supposed tobe on duty. The accident therefore cannot be said to be arisingout of and during course of employment.d]Learned Commissioner after trial and on goingthrough the evidence held that the accident took place duringthe course of employment and proceeded to pass impugnedjudgment and order.3.Heard the learned advocates for the parties.4.Learned AGP vehemently argued the appeal. Hesubmits that deceased died natural death due to heart attackand not because of accident. Duty chart produced on recordwould show that his duty hours were 6 am to 10 am in themorning and 6 pm to 10 pm in the evening. At the time of4 of 11 (5)fa406.21accident he had no reason to come in the premises. He relies onthe duty chart in support of his submission about duty hours. Hefurther relies upon the judgment reported in 2009 AIR (SC)2019 in the case of Malikarjuna G.Hiremath Vs Branch Manager,Oriental Insurance Company Ltd. And anr, AIR 1964 SC 193 &in the case of General Manager, BEST Undertaking Bombay VsAgnes reported in 1964 AIR(SC) 193. He ultimately prayed thatin any case the matter requires a remand on the point ofdeciding the exact cause of death which in his submission is notproved from the evidence on record. From the postmortem noteshe submits that cause of death is coronary artery insufficiency.5.Learned advocate for the respondent vehementlyopposed the appeal. He submits that there is no substantialquestion of law involved as required under Section 30 of theEmployees Compensation Act. It is proved that deceased wascarrying the bundle of files and in that he fell down from thestair case and received injuries. Column No. 17 of thepostmortem notes would show that the deceased received5 of 11 (6)fa406.21injuries on occipital region. There was contusion irregularreddish blood infiltration which clearly indicates that deceasedhad met with an accident. Duty chart which was produced onrecord was of 2013. No duty chart of the year 2016 wasproduced by appellant. There is no sufficient pleadings inrespect of defense. Onus to prove that the deceased was not onduty was on the appellant. There is no question asked in thecross-examination suggesting that the deceased was not on duty.The accident took place at 03.00 pm. The witness of the ZillaParishad had accepted that deceased was appointed as Class-IVemployee. He submits that the judgments cited above are notapplicable in view of the facts involved in this case. Non-producing of duty chart of 2016 give rise to adverse inference.He, thus, prays for dismissal of the appeal.6.This court has gone through the evidence andrecord. In support of the application, applicant No.1 Varsha fieldher affidavit in lieu of examination in chief. She was cross-examined at sufficient length. Nothing is taken on record to6 of 11 (7)fa406.21discredit her evidence. Respondent examined one DoctorBhalchandra Sanganwar, Senior Geologist, Latur. He stated thatbuilding of Zilla Parishad and his office was at distance of 1000ft. He deposed that working hours of the deceased were from 6am to 10 am and evening 6 pm to 10 pm. He proved the dutychart dated 01-12-2012 by which chart dated 01-01-2013 wasprepared. Deceased was working as Watchman. He was givenassignment of carrying files. The deceased died natural death. Inthe cross he admitted that his duty chart of the year 2016 is notproduced on record. From the postmortem report it is seen thatthere was injury on the skull over occipital region. It appearsfrom postmortem report that there were blockages to the extentof 85% it he artery of blood and in that view opinion aboutdeath was given due to coronary artery insufficiency. This is theonly witness is examined by appellant.7.This court has considered this case looking to theabove evidence and judgments cited by the learned AGP. So faras the facts are concerned, it has clearly come up before this7 of 11
Legal Reasoning
(8)fa406.21court that the deceased was in the employment of respondent-present appellant. He was on duty on the date of accident and atthe time of death, he was carrying bundles of files to the officeof Zilla Parishad, Latur. There he received accidental injuries. Anotice exh.U-30 was given on 19-06-2016 by the applicants.Said was replied on 29-12-2016. In reply mainly it is defensethat at the time of accident deceased was not on duty as hisworking hours were different. To consider whether the deceasedwas not on duty, possible evidence was to produce duty chart ofthe year 2016. Though this best evidence was available withrespondent, said is not produced on record. The court has thusrightly drawn adverse inference against respondent. Secondevidence is that deceased died natural death. It is seen that factof falling down from the stair case is clearly established. Theinjury is also established. It is not clearly established that thedeceased died only after heart attack and no such accident tookplace.8.Coming to the judgment cited by the appellants in8 of 11 (9)fa406.21the case of Malikarjun (supra) the Hon’ble Apex Court has heldthat the accident means an untoward mishap which is notexpected or designed. Injury means physiological injury. What isrequired to be proved that accident has taken place. In the saidcase deceased was working as driver who was taking truck toGurugunta. Thereafter he went to a pond for taking bath. Whiletaking bath he slipped and fell down in the water and died dueto drowning. In that view, it was held that the deceased did notdie of an accident during the course of employment. So far asthe judgment in the case of General Manager (supra) isconcerned, the deceased was working as driver of bus. On thedate of his death, the deceased had finished his work at 07.45pm. He took bus to bus depot and left the bus in the depot. Thedeceased thereafter boarded another bus to go to his residence.Said bus collided with a stationery lorry and in that accidentdeceased was thrown out on the road and received injury. Hesuccumbed to the injury. In such facts it was held that death isnot because during the course of employment and claim wasrefused.9 of 11
Decision
(10)fa406.219.This court has considered the facts of the judgmentcited on facts. This court finds that both the judgments are notapplicable to the present case. Here it is proved by therespondent through evidence of applicant No.1 that deceasedwas on duty and was carrying files to the office of the ZillaParishad when he was on duty. There is nothing on record todisbelieve this fact. There is no evidence adduced contrary to theevidence adduced by the respondent employer. No duty chart of2016 was produced before the court . This court finds that thusentire case is on facts. No substantial question of law is madeout to entertain the appeal. The appeal therefore, needs to bedismissed and same is hereby dismissed. If amount or part of theamount is lying with the learned Commissioner under E.C. andJudge Labour Court, Latur same be released in favour of originalclaimants alongwith interest.10.Appeal stands disposed off.11.No order as to costs.10 of 11 (11)fa406.2112.In view of dismissal of the appeal, pending civilapplications, if any do not survive and stand disposed off. [KISHORE C. SANT, J.]VishalK/fa406.2111 of 11