AI Structured Summary
Not yet generated for this judgment
Judgment
B. Manohar, J.—1. These two appeals are filed by the New India Assurance Company as well as the claimants, being aggrieved by the judgment and order dated 28.10.2004 made in WCA/SR No. 153/2003 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Sub-Division-I, Vijayapura (hereinafter referred to as ''the WCC).
MFA No. 1306/2005 is filed by the New India Assurance Company, being aggrieved by the judgment and order of the WCC fastening the liability on the insurer to compensate the claimants, whereas MFA No. 1797/2005 is filed by the claimants, being not satisfied with the quantum of compensation awarded by the WCC for the death of one Balasaheb Kodaga.
Since both the appeals have been filed challenging the very same judgment and order passed by the WCC, they are clubbed together and disposed of by this common judgment.
The appellants in MFA No. 1797/2005 had filed a claim petition contending that one Balasaheb Kodaga, who was the husband of first claimant, father of second claimant and the son of claimant Nos. 3 and 4 was working as a driver in a jeep bearing Reg. No. MH-09/S-4865 belonging to the first respondent which was insured with the second respondent in the claim petition. On 24.01.2003, deceased Balasaheb left the house at 5.00 a.m. Some persons had hired the said jeep to go to Jyotiba. However, the said jeep has not been returned. After four days, the claimants got the information that said Balasaheb was murdered by using the rope and his dead body was found in the canal of Pohale village. The first claimant had identified the body as of her husband. She claimed that for the last two years, he was working as a driver in the jeep belonging to the first respondent in the claim petition and owner of the vehicle was paying him a salary of Rs. 4,000/- p.m. Her husband was murdered by unknown persons during the course and out of employment. Hence, the respondents have to compensate the claimants. Therefore, they filed a claim petition seeking for compensation.
In pursuance of the notice issued by the WCC, respondent No. 1 - owner of the vehicle filed written statement admitting that deceased Balasaheb was working as a driver in the jeep belonging to him for a period of two years and he was paying a salary of Rs. 4,000/- p.m. Further, he was murdered while he had taken the vehicle to Jyotiba. The vehicle is covered by insurance policy. Hence, the insurer has to compensate the claimants and sought for dismissal of the claim petition.
The second respondent - insurance company filed written statement denying the entire averments made in the claim petition and also denied the relationship of master and servant between the deceased and the owner of vehicle. Further, it is contended that no document has been produced to show that the deceased was a workman falling under the meaning of Section 2(1)(n) of the Workmen''s Compensation Act. Further, no accident has been occurred on 24.01.2003. Hence, the question of paying compensation by the insurance company does not arise. Further, due to enmity between the deceased as well as some persons, he has been murdered. For that, the insurance company is not liable to pay the compensation. If the said jeep had met with an accident and had the driver been died in the accident, then only the insurance company is liable to compensate the claimants. Hence, sought for dismissal of the claim petition.
On the basis of pleadings of the parties, the WCC framed necessary issues.
The claimants in order to prove his case, the first claimant got examined herself as PW. 1 and got marked the documents as Exs. P1 to P6. On behalf of the respondents, the Officer of the insurance company was examined as RW. 1 and the insurance policy was marked as Ex. R1.
The WCC after considering the oral and documentary evidence let in by the parties and taking into consideration the police record, held that the deceased who was working as a driver in the jeep was murdered by unknown person and the said murder was taken place during the course and out of employment. Further, owner of the vehicle also admitted that the deceased was working as a driver in the jeep belonging to him. Further, the claimants are the dependants of the deceased and they are entitled for compensation. Though the claimants claim that the deceased was earning Rs. 4,000/- p.m., no document has been produced to substantiate the same. In view of that, the WCC taking into consideration the income of deceased as Rs. 2,085/- p.m. and deducting 50% thereof by applying the relevant factor of 216.91, awarded a sum of Rs. 2,26,129/- with interest at 12% p.a. from the date of passing of the judgment and order. With regard to the liability is concerned, the vehicle in question was insured with the New India Assurance Company. As on the date of the incident, the insurance policy was in existence. Since the incident had occurred during the course and out of employment, the liability has been fastened on the insurance company to compensate the claimants. Being aggrieved by the judgment and order passed by the WCC, the insurance company has filed MFA No. 1306/2005. Being not satisfied with the quantum of compensation awarded by the WCC, the claimants have filed MFA No. 1797/2005 seeking for enhancement of compensation.
Smt. Shashikala Jahagirdar, learned Advocate appearing for the appellant-insurance company in MFA No. 1306/2005 contended that the judgment and order passed by the WCC is contrary to law. No document has been produced to show that the deceased was working as a driver in a jeep belonged to the owner of the vehicle. Further, no accident had been occurred to the said vehicle. If the accident had occurred and resulted in death or grievous injuries, then only the insurer is liable to compensate as per Section 3 of Employees Compensation Act, 1923 (for short ''the Act''). In the instant case, no accident had taken place. On the other hand, the police record states that the driver of the said jeep was murdered by unknown persons and his dead body was recovered on 27.01.2003 near the canal of forest area. There is no nexus between his death and the employment. The motive of death is not for stealing the vehicle. Due to the enmity between the driver and some unknown persons, the driver was murdered. Hence, the insurance company cannot be held liable to compensate the claimants and sought for allowing the appeal by quashing the judgment and order passed by the WCC.
On the other hand, Sri Bapugouda Siddappa, learned Advocate appearing for the appellants/claimants in MFA No. 1797/2005 contended that the compensation awarded by the WCC taking into consideration the income of the deceased as Rs. 2,085/- p.m. is contrary to law. The owner of vehicle himself admitted that he was paying the deceased a sum of Rs. 4,000/- p.m. The insurance company has also not disputed the said fact. Inspite of the same, the compensation awarded by the WCC, taking the income of the deceased at Rs. 2,085/- p.m. and applying the relevant factor is on the lower side. The WCC ought to have taken the income of the deceased at Rs. 4,000/- p.m. and awarded the compensation. Further, the incident had occurred during the course and out of employment. The owner of the vehicle also admitted that the deceased was working as a driver in his jeep. Apart from that, on 24.01.2003, the deceased left the house at 5.00 a.m. and while he was carrying the passengers to Jyotiba, he was murdered by unknown persons. The vehicle was not traced as on today. Hence, the claimants are entitled for enhancement of compensation and sought for dismissal of the appeal filed by the insurance company. In support of his contention, he relied upon the decisions of the Hon''ble Supreme Court in the case of Smt. Rita Devi and Others v. New India Assurance Co. Ltd. and Another reported in , AIR 2000 SC 1930 and in the case of United India Insurance Co. Ltd. v. Kanshi Ram reported in , 2004 (2) T.A.C. 875 (Del.).
I have carefully considered the arguments addressed by the advocates appearing for the parties and perused the judgment and order passed by the WCC and the oral and documentary evidence adduced by the parties and also the judgments relied upon by them.
The record clearly discloses that deceased Balasaheb was working as a driver in a jeep bearing Reg. No. MH-09/S-4865 belonging to respondent No. 1 in the claim petition. On 24.01.2003, he left the house in the morning at 5.00 a.m. and he was engaged by some passengers to go to Jyotiba. However, he did not return from Jyotiba and the said jeep was also not traced. On 27.01.2003, the dead body of deceased Balasaheb was traced near the canal of Pahole village. On investigation, it was found to be of Balasaheb. He was the driver of the jeep belonged to respondent No. 1 in the claim petition. Inspite of investigation, the jeep was not traced. The wife of the deceased and mother identified the dead body as of Balasaheb. The claimants filed a claim petition contending that during the course of employment, the deceased was murdered by unknown persons by strangulating him. The nylon rope was also found around his neck and also found yellow mark around the neck.
The question that arise for consideration in this appeal is;
"Whether the death was occurred during the course of employment and the insurance company is liable to compensate the claimants?"
There is no eyewitness to prove the death of Balasaheb. The decomposed body was found after three days of death. The nylon rope was tied around the neck and neck portion had become yellow. The post mortem report clearly supports the case that the death is due to strangulation. The police record as well as the post mortem report disclose that the death occurred three days earlier to receiving the body, that means the death had occurred as on the date when the deceased was working as a driver of the said jeep. Though the dead body was found near the canal of Pohale village, the jeep was not traced. Hence, it is clear that in order to rob the driver and to steal the jeep, the driver of the jeep was robbed and murdered and the jeep was stolen. Hence, it has to be held that the death has occurred during the course and out of employment.
The Hon''ble Supreme Court in the identical circumstances in a judgment reported in , AIR 2000 SC 1930 cited supra, in paragraph No. 9, 10 and 18 has held as under:
"9. A conjoint reading of the above two subclasses of Section 163A shows that a victim or his heirs are entitled to claim from the owner/Insurance Company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle (emphasis supplied) without having to prove wrongful act or neglect or default of any one. Thus it is clear, if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of motor vehicle then they will be entitled for payment of compensation. In the present case, the contention of the Insurance Company which was accepted by the High Court is that the death of the deceased (Dasarath Singh) was not caused by an accident arising out of the use of motor vehicle. Therefore, we will have to examine the actual legal import of the words death due to accident arising out of the use of motor vehicle.
The question, therefore, is can a murder be an accident in any given case? There is not doubt that ''murder'', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a ''murder'' which is not an accident and a ''murder'' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.
In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out the use of motor vehicle. Therefore, the trial Court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle."
Further, Hon''ble High Court of Delhi by interpreting Section 3 of the Act, in paragraph Nos. 12, 15, 16 and 18 has held that, "the accident had a casual connection with the employment inasmuch as the workman was travelling in the train to attend a conference organized by the employer in terms of a direction issued in that regard to him." He was assaulted in the train and murdered by unknown persons. Thus, it was held that the accident occurred in the course of his employment. Further, the Hon''ble High Court of Delhi while interpreting Section 3 of the Act, held that "the word "accident" excludes the idea of willful and intentional act but as explained in Nisbet v. Rayne and Burn, "the phrase ought to be held to include murder as it was an accidental happening so far as the workman was concerned."
The High Court of Madras in a judgment reported in C.M.A. No. 2144 of 2006 and M.P. No. 1 of 2006 in the case of G. Amsaveni v. Mrs. V. Komala has taken a similar view.
The WCC relying upon the large number of judgments, held that the death has occurred during the course of employment and awarded the compensation. I find that there is no infirmity or illegality in the judgment and order passed by the WCC. The insurance company has not made out a case to interfere with the judgment and order passed by the WCC. Accordingly, MFA No. 1306/2005 filed by the insurance company is dismissed.
With regard to quantum of compensation is concerned, admittedly the accident had occurred in the year 2003. The deceased was a driver by profession. Though no document has been produced to show that he was a driver, the owner of the vehicle himself admitted that the deceased was working as a driver. The income of Rs. 2,085/- p.m. taken by the WCC is on the lower side. In the year 2003, the drivers would earn more than Rs. 3,500/- p.m. Hence, taking into consideration the income of the deceased as Rs. 3,500/- p.m., deducting 50% towards his personal expenses and applying the relevant factor of 216.91, the claimants are entitled to a total sum of Rs. 3,79,593/- (Rs. 3,500/- less Rs. 1,750/- (i.e., 50%) = Rs. 1,750/- x 216.91) as against Rs. 2,26,129/- awarded by the WCC. Thereby, they are entitled to enhanced compensation of Rs. 1,53,464/- (Rs. 3,79,593/- less Rs. 2,26,129/-). Further, in the judgment reported in , 2012 AIR SCW 4384 in the case of Oriental Insurance Co. Ltd. v. Siby George & Others, the Hon''ble Supreme Court has taken the view that the claimant is entitled to interest @12% p.a. from one month after the accident. Accordingly, I pass the following;
ORDER
MFA No. 1306/2005 filed by the insurance company is dismissed.
MFA No. 1797/2005 filed by the claimants is allowed in part. The judgment and order dated 28.10.2004 made in WCA: SR No. 153/2003 is modified. The claimants are entitled to enhanced compensation of Rs. 1,53,464/- with interest @ 12% p.a. from one month after the accident.
The amount in deposit before this Court in MFA No. 1306/2005 be transferred to the Civil Judge (Sr. Dn.), Vijayapur.
The Insurance Company has to pay the enhanced compensation within a period of three weeks from the date of receipt of a copy of this order.