THIRU T SHANMUGA MUDALIAR Vs. TMT NOORJAHAN

JUDGEMENT

(1.) The driver of the bus belonging to the appellant in L.P.A.No.72 of 2002 and insured by the appellant in L.P.A.No.141 of 2002 died on 23-09-1995. A claim was made by his legal representatives (the respondents herein) under Section 10(1) of the Workmen's Compensation Act on the ground that the death was caused because of the heavy strain due to the employment. The Workmen's Compensation claim Commissioner awarded compensation but only against the insured/ employer. The learned Single Judge, allowed the civil miscellaneous appeal filed by the employer holding that the Insurance Company is jointly and severally liable to pay the compensation. Against that these appeals have been filed.

(2.) The liability to pay compensation has been resisted on the ground that no materials have been placed for consideration such as the FIR, the post mortem certificate for ascertaining the cause of death, nor any proof of the salary particulars. There cannot be any dispute that if the liability to pay compensation is upheld then the liability of the insurer also must follow necessarily.

(3.) On the fateful day, the driver had halted the bus at the stop, stepped out to have refreshments and succumbed to heart failure. In the application filed by the claimants it is stated that the death occurred "while on duty due to overstrain arising out of and in the course of the employment". In the counter filed by the employer it is admitted "that the deceased workmen Abdul Sattar, driver of the vehicle died due to heart attack while on duty." It is the Insurance Company, which in its counter had denied that the death arose out of and in the course of the employment. The conductor has been examined as a witness on behalf of the claimants and it is his case that on 23-09-1995 the deceased driving the bus and he was the conductor, and that when the bus reached Tiruvannamalai the driver stopped the bus to take some refreshments and the driver fell ill at the very stop, where the bus had stopped and that he threw up, his body turned cold and that he was taken to the Tiruvannamalai Government Hospital and he died. He has stated that the death occurred on account of the strain of duty. The cross-examination in this regard is more on the question of whether the trip sheet has been filed to show whether actually the deceased was driving the bus at the time of the death.