In an extremely commendable judgment, the Bombay High Court has as recently as on January 17, 2022 in a refreshing, remarkable, robust and rational judgment titled Smt. Harvinder Kaur Vishakha Singh vs Tarvinder Singh K Singh in First Appeal No. 1476 of 2007 has directed an employer to compensate the kin of a truck driver, observing that the stress and strain caused during his employment had ultimately led to his demise. It must be mentioned here that the single Judge Bench of Justice NJ Jamadar held that the deceased driver’s heart attack could be termed an accident arising out of and in the course of his employment, as contemplated under Section 3 of the Workman’s Compensation Act. The Bench thus very rightly set aside the Labour Court’s order, allowed an appeal filed by the motorman’s kin in 2007 and directed the travel company owner and insurance company to cough up Rs. 2,78,260/- along with interest at the rate of 12% p.a. from December 3, 2003. The court also ordered the owner to pay costs of Rs. 25,000.
To start with, this judgment authored by a single Judge Bench of Justice NJ Jamadar first and foremost puts forth in para 1 that, “This appeal is directed against the judgment and award dated 14th April, 2007 in Application (WCA) No.17/B-8/2004, passed by the Commissioner for Workmen’s Compensation and Judge, 8th Labour Court at Mumbai, whereby the application preferred by the appellants – applicants for compensation on account of death, of late Vishakha Singh Suman Singh (the deceased), on account of accident arising out of and in the course of his employment, while driving motor vehicle (truck) bearing No.MH-04-F-8979, owned by opponent no.1 employer and insured with opponent no.2 – insurer, on 3rd November, 2003, came to be dismissed.”
While elaborating on the background of the case, the Bench then envisages in para 2 that, “The background facts leading to this appeal can be stated in brief as under:(a) Late Vishakha Singh, the husband of applicant no.1 – Smt. Harvinder Kaur, father of applicant no.2 – Master Charanjit Singh and applicant no.3 – Kum Luv Prit Kaur and son of applicant no.4 – Mr. Suman Singh and applicant no.5 – Smt. Mahindra Kaur, was employed with opposite party no.1 – Mr. Tarvinder Singh, as a driver on the truck No.MH-04-F-8979. The said vehicle was insured with opposite party no.2. The applicants claim that the deceased was 35 years of age. He was drawing wages of Rs.4,000/- per month.
(b) While the deceased was driving the said truck bearing No.MH-04-F-8979, on his way to Mumbai, in the course of employment, the deceased died at Chandwad, district Nashik. Inquest was held on the body of the deceased. Postmortem examination was conducted. It was opined that the deceased died on account of coronary artery heart disease. The applicants asserted that the deceased died on account of the stress and strain of employment as the deceased had been driving the said vehicle continuously since 17 to 18 days. On the day of the death, the deceased was on his way to Mumbai from Ranchi, which is at a distance of 1800 kms. from Mumbai. Thus, the applicants claimed compensation of Rs.3,94,120/- along with interest and penalty.
(c) The opposite party no.1 – employer filed the written statement. It was admitted that the deceased was employed with opposite party no.1 as a driver on the above-numbered vehicle and met death on 3rd November, 2003, at Chandwad, Nashik, on his way to Mumbai, in the course of employment. The opposite party no.1 further admitted that he was paying wages of Rs.4,000/- per month and a claim form was submitted to the insurer with the aforesaid particulars.
(d) Opposite party no.2 – insurer resisted the claim principally on the ground that the death, which the deceased met, was natural. The death was not on account of the use of the motor vehicle. Nor the accident occurred out of the employment. The contingencies as specified in Section (II) of the Contract of Insurance dated 29th September, 2003 and Section 147 of the Motor Vehicles Act, 1988, were not made out, and thus the applicants were not entitled to claim compensation. In substance, there was no nexus between the death, which the deceased met, and the use of the vehicle, which was insured with opposite party no.2 – insurer.
(e) In the backdrop of the aforesaid pleadings, the learned Commissioner framed following issues at Exhibit-O-4:
- Whether the applicants prove that the deceased met with fatal accident in the course of and arising out of use of the vehicle with the opposite party and died?
- Whether the applicants prove that they are entitled to receive the compensation claimed or such other amount from the opposite parties Nos.1 and 2?
- Whether the applicants prove that they are entitled to receive the compensation with penalty and interests?
(f) The learned Commissioner recorded the evidence of applicant no.1 Smt. Harvinder Kaur (witness no.1 – for the applicants), Mr. Tarvinder Singh (witness no.1 for opposite party) and Suryakant Kambli (witness no.1 for insurer). After appraisal of the oral evidence and documents tendered for her perusal, the learned Commissioner was persuaded to return the finding that the employer – employee relationship between the deceased and opposite party no.1 was established. However, the applicants were non-suited on the ground that the death, being natural, cannot be said to have been caused by an accident arising out of and in the course of his employment. The learned Commissioner while answering the issue nos.2 and 3, went on to further record that the question as to whether the deceased was in fact employed with the opposite party no.1 was in the corridor of uncertainty as it was brought out in the cross-examination of Tarvinder Singh – opposite party no.1 that he was dealing in the business of transport under the name and style of Amrit Roadlines, a partnership firm. Thus, the mere fact that on the date of the accident, the deceased was working as a driver on the above-numbered vehicle, owned by opposite party no.1, was not sufficient to award compensation, held the learned Commissioner.”
As it turned out, the Bench then observes quite rightly in para 3 that, “Being aggrieved by and dissatisfied with the aforesaid judgment and award, the appellants – applicants are in appeal.”
Without mincing any words, the Bench then feels it necessary to observe in para 21 that, “I am afraid to subscribe to the view of the learned Commissioner. If the aforesaid pronouncement is construed properly, in the backdrop of the fact situation therein, the crucial distinguishing factor appears to be the nature of the employment of the deceased. In the said case, the deceased was stated to be working as a cleaner. The nature of the said employment, which was essentially of a helper to the driver, was held to be not per se such onerous as to cause stress or strain. This distinguishing feature, in my considered view, was lost sight of by the learned Commissioner.”
As we see, the Bench then while succinctly referring to the relevant case law observes in para 25 that, “A useful reference can also made to the judgment in the case of Subhadrabai w/o Ganpatrao Suryawanshi (died) per LRs Aruna d/o Ganpatrao Suryawanshi vs. Maharashtra State Road Transport Corporation and others 2003 (11) LJSOFT 83, wherein it was held that death by heart attack is an accident is well recognized. It was inter alia observed as under:“21. Thus, death by heart attack is an accident is now well established by series of judicial pronouncements made from time-to-time. If the workman died of heart attack, there was a pre-existing heart condition which was aggravated by the strain of work of the deceased while performing his duties which resulted in his death and as such there is a causal connection between the injury and the accident which has been construed in wider sense as a mishap external or internal not expected or designed by the victim. The accident in the instant case was ‘failure of heart’. Considering the evidence on record it is obvious that the accident was in the course of the employment and, therefore, it can be said that it arose during the course of the employment within the meaning of Section 3(1) of the Act.””
Truth be told, the Bench then enunciates in para 26 that, “On the aforesaid touchstone, reverting to the facts of the case, there is evidence to indicate that the vehicle in question had left Mumbai for Ranchi 17 to 18 days prior to the date of the death of the deceased. On the day of occurrence, the deceased was on his way back to Mumbai from Ranchi. The deceased had started eight days prior to the day of occurrence from Ranchi. The distance to be covered was around 1800 kms. There was no second or spare driver on the said truck. These circumstances deserve adequate consideration.”
As anticipated, the Bench then mentions in para 27 that, “An effort was made during the course of the cross-examination of Mr. Tarvinder Singh – opposite party no.1 that his drivers do not get exerted. They do not drive continuously but take breaks. The deceased was healthy. There was no complaint about his health. Tarvinder Singh, not unexpectedly, asserted that the deceased do not die due to the work pressure.”
Most significantly, it is worth noting and which must capture maximum eyeballs that the Bench then while rebutting what is stated in para 27 graciously concedes in para 28 that, “The aforesaid admissions, even if they can be called so, and even construed at par, do not erode the enormity of the situation, which a driver faces, on account of long and arduous journey, for almost 18 days, uninterrupted. The long distance driving for about 3600 kms. can be expected to generate stress and strain, even subconsciously. I am, therefore, persuaded to hold that in the facts of the instant case, the death of the deceased can be said to have been accelerated on account of the stress and strain associated with the long distance driving for almost 18 days in trying circumstances. Any other view of the matter would defeat the beneficial object of the provisions contained in Section 3 of the Employees Compensation Act, 1923.”
Finally and far most significantly, the Bench then holds aptly in para 35 that, “For the foregoing reasons, the appeal deserves to be allowed. Hence, the following order:
: O r d e r :(i) The appeal stands allowed with costs.
(ii) Opposite party nos.1 and 2 do jointly and severally deposit the compensation of Rs.2,78,260/- along with interest at the rate of 12% p.a. from 3rd December, 2003 till realization.
(iii) Upon realization, the amount of compensation be disbursed to the appellants – applicants, in equal proportion.
(iv) Opposite party no.1 shall also pay a sum of Rs.25,000/- by way of penalty.
(v) Award be drawn accordingly.”
In short, the key takeaway of this extremely learned, laudable, landmark and latest judgment of the single Judge Bench comprising of Justice NJ Jamadar of the Bombay High Court is that in the facts of the instant case, the death of the deceased can be said to have been accelerated on account of the stress and strain associated with the long distance driving for almost 18 days in trying circumstances. So it goes without saying that the employer is duty bound to compensate the deceased driver as it would be the biggest injustice in not doing so. We also cannot be oblivious of the time tested dictum that, “A threat to justice anywhere is a threat to justice everywhere.” There is thus no reason to disagree with what the Bombay High Court has held in this leading case so commendably, cogently and convincingly!Sanjeev Sirohi