BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD. Vs. SHAHINA

JUDGEMENT

(1.) The National Insurance Company Limited, the insurer in WCC 12/2005 on the file of the Commissioner for Workmen's Compensation, Kollam has come up in appeal challenging the judgment granting an amount of Rs. 3,79,120.00 to the respondents herein. The case of the applicants is that on 25.4.2004 at about 11.20 p.m when the deceased was driving an auto rickshaw bearing registration No. KL-02 F5378 he lost his control and hit on the divider and capsized. Immediately he was taken to District Hospital where he succumbed to the injuries on 1.5.2004 at 6.05 p.m. According to the applicants, the accident was arising out of and in the course of employment and thereby the first opposite party is liable to pay compensation for the death caused by the accident. Further it was averred that the deceased was aged 38 years at the time of accident and he was employed as driver of the auto rickshaw owned and possessed by the first opposite party.

(2.) The first opposite party resisted the said claim for compensation contending that the deceased was a neighbour of the first opposite party and he has taken the auto rickshaw from him for travelling, as his own auto rickshaw was under repair. Later, the auto rickshaw met with an accident at Chinnakada. Further it was contended that the accident was not arising out of and in the course of employment. His alleged death on 1.5.2004 was not due to the said accident and death was caused by massive heart attack. The compensation claimed is highly exorbitant and he was not receiving any amount from him as an employee. Further it was contended that at any circumstance if the applicants are found liable to receive any compensation due to the alleged accident the second opposite party who was the insurer of the vehicle during the period of accident is liable to pay the compensation to the applicants.

(3.) The second opposite party also resisted the claim contending that the accident was not arising out of and in the course of employment. Further it was contended that the applicant had suffered a massive cardiac arrest and the same culminated in his death. There was absolutely no strain or stress or injury which caused to him in this regard and there is no connection between the death and accident. The amount claimed by the applicants are exorbitant as the deceased was not drawing an amount of Rs. 4,000.00 per month as claimed by them. There was no proper entrustment of driving work by the first respondent and thus on that ground also the second opposite party is not liable to indemnify the first respondent.