United India Insurance Company … vs Sudhina on 15 January, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA.No. 130 of 2008()


1. UNITED INDIA INSURANCE COMPANY LIMITED,
                      ...  Petitioner

                        Vs



1. SUDHINA, W/O.LATE SURESH,
                       ...       Respondent

2. JANU, W/O.KELAPPAN, CHALIKUNNUMMEL

                For Petitioner  :SRI.P.JACOB MATHEW

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :15/01/2009

 O R D E R
                    C.N.RAMACHANDRAN NAIR &
                            C.K.ABDUL REHIM, JJ.
               ....................................................................
                             M.F.A. No.130 of 2008
               ....................................................................
                Dated this the 15th day of January, 2009.

                                      JUDGMENT

Ramachandran Nair, J.

Even though notice is served on the respondents, there is no

response. However, we have heard Senior counsel appearing for the

appellant. Counsel submitted that in the first place, the driver had no

business to unload and then carry the stones transported in the truck by

himself and therefore, the strain if any caused in the course of carrying

stones is not attributable to employment. However, we are not able to

agree with this contention because what is stated is that the driver was

engaged in transport and unloading of goods which means the truck

driven by him was engaged in transport and unloading of goods and

not that he was personally unloading the goods or carrying it to the

actual site. The evidence show that physical problem leading to heart

attack and death arose in the course of employment i.e. while he was

engaged as a driver in the transport of stones from one place to another.

The next contention raised by counsel for the appellant is that there is

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no medical evidence to show that the strain in the employment caused

the death. We do not find any cross-examination on relevant issues

such as make of the vehicle, condition of the road on which the vehicle

was used and the number of hours of work etc. A doctor cannot give

any medical evidence without reference to facts which are not on

record. Therefore, we do not think there is any scope for remanding

the matter on this issue. Since the deceased admittedly developed

symptom of heart problem while he was employed as driver in the

truck and since he died of heart attack shortly thereafter, it has to be

taken that the immediate cause of the disease and death is strain in the

employment. However, we find force in the contention of counsel that

interest granted by the Workmen’s Compensation Commissioner from

the date of accident is not tenable by virtue of decision of the Supreme

Court in NATIONAL INSURANCE CO. V. MUBASIR AHMED

(2007 AIR SCW 1265). We, therefore, modify the award by limiting

the interest from date of award till date of deposit. If excess is

deposited by the Insurance Company, such amount will be returned

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back to the Insurance Company. Balance amount will be disbursed

without delay. Appeal stands allowed to the above extent.

C.N.RAMACHANDRAN NAIR
Judge

C.K.ABDUL REHIM
Judge
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