* HIGH COURT OF DELHI : NEW DELHI
FAO. No.346/2007
% Judgment reserved on:7th September, 2009
Judgment delivered on:16th September, 2009
United India Insurance Co. Ltd.
Regional Office-I,
Kanchanjunga Building,
8th Floor,
18, Barakhamba Road,
New Delhi-110 001. ....Appellant.
Through: Mr. L.K. Tyagi, Adv.
Versus
1. Smt. Dariyao Kanwar
W/o. Late Sumer Singh
2. Bipan Kanwar
D/o. Late Sumer Singh
3. Moti Singh
S/o. Late Sumer Singh
4. Munni Kanwar
D/o. Late Sumer Singh
5. Lal Singh
S/o. Late Sumer Singh
All residents of
H.No. 11, Rajput Mohalla,
Village & P.O. Girdharpura,
Tehsil Udaipurwti,
Distt. Jhunjhuna (Rajasthan)
FAO No.346/2007 Page 1 of 12
6. Sh. Kuldeep Bhatia
11, Guru Nanak Auto Market,
Punjabi Bagh,
New Delhi. ..Respondents.
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
United India Insurance Company-appellant, has
filed this appeal against order dated 22nd March, 2007
of Commissioner Workmen Compensation (for short as
„Commissioner‟). Vide impugned order, Commissioner
passed an award for Rs. 3,26,140/- along with interest
@ 12% p.a., w.e.f. 15th September, 2003 till realization,
in favour of respondents/claimants.
2. Brief facts are that, deceased-Sumer Singh was
employed as driver with respondent No.6. On 15th
September, 2003, deceased was on his professional
FAO No.346/2007 Page 2 of 12
visit and was driving the vehicle. When he reached
Udaipur in Rajasthan, his condition deteriorated due to
strenuous and continuous driving. He parked his
vehicle and thereafter, expired due to failure of his
bodily organ due to stress and strain of driving. His
post-mortem was conducted and a case was registered.
Respondents No.1 to 5 are legal heirs/claimants of the
deceased.
3. Appellant in its written statement denied that
deceased was employed as a driver, as no driving
license or other documentary evidence has been
placed on record. It was also denied that any such
incident as alleged, took place during course of his
employment. As per claimants‟ case, deceased died
due to failure of bodily organ, while post mortem
report states that all organs of deceased were healthy
at that time. Thus, petition is not maintainable.
4. Notice was issued to respondents No.1 to 5, who
were duly served for 26th September, 2008. Since,
FAO No.346/2007 Page 3 of 12
there was no appearance on their behalf, appeal was
admitted for hearing. On 7th September, 2009, none
appeared for them.
5. Arguments advanced by learned counsel for
appellant have been heard.
6. It is contended by learned counsel for appellant
that claim of respondents, under Section 3 of Workmen
Compensation Act (for short as „Act‟), is not
maintainable, since death of deceased was not caused
by accident, during the course of employment.
7. Another submission is that there is no medical
evidence on record to show that death occurred due to
heart attack or organ failure was the consequence of
mental strain or stress, due to employment as alleged.
8. Learned counsel in support referred to
Shakuntala Chandrakant Shreshti v. Prabhakar
Maruti Garvali & Anr, IV (2006) ACC 769 (SC), in
which Supreme Court observed;
FAO No.346/2007 Page 4 of 12
“Unless evidence is brought on
record to elaborate that the death by
way of cardiac arrest has occurred
because of stress or strain, the
Commissioner would not have
jurisdiction to grant damages. In
other words, the claimant was
bound to prove jurisdictional fact
before the Commissioner. Unless
such jurisdictional facts are found,
the Commissioner will have no
jurisdiction to pass an order. It is
now well-settled that for arriving at
a finding of a jurisdictional fact,
reference to any precedent would
not be helpful as a little deviation
from the fact of a decided case or
an additional fact may make a lot
of difference by arriving at a correct
conclusion. For the said purpose,
the statutory authority is required
to pose unto himself the right
question.”
9. Widow of deceased, in her statement stated that
deceased was going in his truck from Delhi to Baroda.
On way, his condition deteriorated and he died due to
failure of his bodily organ, due to stress and strain of
continuous driving.
10. There is no evidence on record to show that
deceased died as a result of organ failure, as alleged
by claimants. Post mortem report Exb. AW1/3, does
FAO No.346/2007 Page 5 of 12
not show that there was any organ failure. Opinion of
Doctor who conducted post mortem examination, is as
under;
“Regarding cause of death will be
given after receiving chemical
and histopathological examination
report”.
11. This clearly shows that cause of death has not
been given in post mortem report. Moreover, Post
Mortem report states;
“Organ generation ; external and
internal-Healthy”.
12. Under such circumstances, it cannot simply be
assumed that death occurred due to stress and strain,
of continuous driving, which resulted in organ failure.
There has to be sufficient proof to support that claim.
13. Section 3 (1) of the Act, which is relevant for the
purpose of this case reads as follows;
“3. Employer’s Liability For
Compensation. – (1) If personalFAO No.346/2007 Page 6 of 12
injury is caused to a workman by
accident arising out of and in the
course of his employment, his
employer shall be liable to pay
compensation in accordance with
the provisions of this Chapter:
Provided that the employer shall not
be so liable –
(a) in respect of any injury which
does not result in the total or partial
disablement of the workmen for a
period exceeding [three] days;
(b) in respect of any [injury], not
resulting in death, [or permanent
total disablement], caused by] an
accident which is directly
attributable to –
(i) the workman having been at the
time thereof under the influence of
drink or drugs, or
(ii) the willful disobedience of the
workman to an order expressly
given, or to a rule expressly framed,
for the purpose of securing the
safety of workmen, or
(iii) the willful removal or discharged
by the workman of any safety guard
or other device which he knew to
have been provided for the purpose
of securing the safety of workmen.”
14. As per this Section, it has to be established that
there was some casual connection between the death
FAO No.346/2007 Page 7 of 12
of workman and his employment. If, workman dies as
a result of disease from which he was suffering or
while suffering from a particular disease, he dies of
that disease as a result of wear and tear of
employment, no liability would be fixed upon employer.
15. In Mackinnon Mackenzie & Co. (P) Ltd. v.
Ibrahim Mahammad, AIR 1970 SC 1906, Supreme
Court held;
“5. To come within the Act the injury
by accident must arise both out of
and in the course of employment.
The “words in the course of the
employment” mean “in the course of
the work which the workman is
employed to do and which is
incidental to it”. The words “arising
out of employment” are understood
to mean that during the course of
the employment, injury has resulted
from some risk incidental to the
duties of the service, which, unless
engaged in the duty owing to the
master, it is reasonable to believe
the workman would not otherwise
have suffered. In other words, there
must be a causal relationship
between the accident and the
employment. The expression “arising
out of employment” is again not
confined to the mere nature of theFAO No.346/2007 Page 8 of 12
employment. The expression applies
to employment as such to its nature,
its conditions, its obligations and its
incidents. If by reason of any of
those factors the workman is
brought within the zone of special
danger the injury would be one
which arises out of employment. To
put it differently if the accident had
occurred on account of a risk which
is an incident of the employment, the
claim for compensation must
succeed, unless of course the
workman has exposed himself to an
added peril by his own imprudent
act.”
16. Similarly, in The Municipal Corporation v.
Smt. Sulochanabai Sadashiv Joil, (1979) 81
BOMLR 82, it was observed;
“Three factors must be established
to attract the liability under Section
3 of the Act. Firstly, there must be
an injury. Secondly, it should be
caused in an accident. Thirdly, it
should be caused in the course of
the employment. Mere death in
ordinary course by some bodily
ailment or even in the course of
employment cannot attract liability
of employer under Section 3. The
words „injury‟ and „accident‟ in
Section 3 of the Act imply the
existence of some external factor to
cause death apart from internal
ailment of the body.”
FAO No.346/2007 Page 9 of 12
17. In Sakinabibi and Anr. vs. Gujarat State Road
Transport Corporation, 1992 ACJ 603, Gujarat High
Court held;
“In order to earn an award for
compensation under Section 3 of the
Act, it is necessary to prove that the
personal injury or the resultant
death (as the case may be) is caused
to a workman by accident arising out
of and in the course of his
employment with the employer. The
words “out of employment”
emphasise a casual connection
between the employment and the
accidental injury. Though the word
“accident” occurred in Section 3 of
the Act, is not defined in the Act, the
said expression has been subjected
to number of judicial decisions, as a
result of which, it has come to
acquire a settled meaning. It is a
well-settled position of law that
under Section 3 of the Act, it must
be shown that there was a proximate
cause and nexus between the
personal injury or the accident and
the work or employment. Therefore,
it is incumbent upon the applicants
to prove that there was a causal
relationship between the injuries
and the work in question. Section 3FAO No.346/2007 Page 10 of 12
of the Act clearly prescribes that the
personal injury or the accident must
be proved to have arisen out of and
in the course of employment. If it is
successfully proved or shown that
the injury sustained by the workman
had arisen out of and in the course
of his employment, then the
workman or the dependent of the
deceased workman would be
qualified and eligible for
compensation under Section 3 of the
Act.”
18. In the present case, Commissioner did not go into
jurisdictional facts nor arrived at any finding based on
any legal evidence, as there is no casual relationship
between the injuries and the work in question.
19. The impugned order under these circumstances
cannot be sustained. The same is set aside and
present appeal stands allowed.
20. At the time of admission of appeal, it was ordered
that attached amount shall not be disbursed to the
respondents. As appeal has been allowed, attached
FAO No.346/2007 Page 11 of 12
amount be released to appellant, only after expiry of
period of limitation for filing appeal.
21. Parties shall bear their own costs.
22. Trial court record be sent back.
16th September, 2009 V.B.GUPTA, J.
rb
FAO No.346/2007 Page 12 of 12