RESHAM KUNWARBHAI Vs. MADANLAL S O GANESHDAS CHANDRA

JUDGEMENT

(1.) Being aggrieved by the order dated 21.2.2008 passed by Commissioner for Workmen's Compensation, Labour Court, Mandsaur in Case No. 8/WC Fatal/2006 whereby the claim case filed by the appellants was allowed and awarded compensation of Rs. 4,00,000 on account of death of Viramsingh alias Vikramsingh along with interest at the rate of 12 per cent per annum w.e.f. 21.2.2008 and penalty at the rate of 50 per cent, present appeal has been filed. Short facts of the case are that the appellants are the legal representatives of deceased Viramsingh alias Vikramsingh who filed claim case before learned court below alleging that bus bearing registration No. MP 44-0141 was owned by respondent No. 1 and insured with respondent No. 2 at the relevant time. It was alleged that deceased was driver on bus and getting salary of Rs. 4,000 per month. It was alleged that on 20.2.2006 at about 7 a.m. when the deceased was to go on the said bus from Neemuch to Bhawanimandi there was a mechanical fault in the bus. It was alleged that for the purpose of repairing he lay down below the bus, at that time, other mechanic was trying to get the vehicle started. It was alleged that at that time all of a sudden deceased felt chest pain, he was taken to Choudhary Nursing Home, Neemuch, where he was declared dead. It was alleged that upon the intimation criminal case was registered and in the post-mortem it was found that the cause of death was cardiac arrest. It was alleged that deceased was in the employment of respondent No. 1 and the offending vehicle was insured with respondent No. 2 and death was caused during the course of employment due to strenuous work, therefore, appellants are entitled for compensation. The claim case was contested by the respondent No. 2 on various grounds including on the ground that no case is made out for which appellants are entitled for compensation. It was alleged that no intimation was given to the respondent No. 2 by the respondent No. 1 about the occurrence of accident. It was prayed that the claim case be dismissed. After framing of issues and recording of evidence learned court below found that the accident occurred during the course of employment in which Viramsingh died. It was also held that the respondent No. 1 is liable for payment of compensation. So far as respondent No. 2 is concerned, learned court below found that cause of death was not excessive stress, therefore, respondent No. 2 is exonerated. Being aggrieved by this part of the order whereby respondent No. 2 was exonerated, present appeal has been filed.

(2.) Learned counsel for the appellants argued at length and submits that impugned order whereby respondent No. 2 has been exonerated is illegal, incorrect and deserves to be set aside. It is submitted that since once learned court below has come to the conclusion that the deceased was in the employment of respondent No. 1 and the accident occurred during the course of employment, therefore, there was no justification on the part of learned court below to exonerate the respondent No. 2. It is submitted that the learned court below has placed reliance on a decision in the matter of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali,2007 ACJ 1 and Jyothi Ademma v. Plant Engineer, Nellore Thermal Station, 2006 ACJ 2165. It is submitted that both the cases are quite distinguishable. Learned counsel placed reliance on a decision of this court in the matter of Oriental Insurance Co. Ltd. v. Heerabai,2009 ACJ 147, wherein driver of Tempo died when Tempo was parked at the site of mine from where murram was to be loaded and he was digging the mine along with other labourers when the accident occurred, it was held that accident occurred in the course of employment. Further reliance is placed on a decision in State of Rajasthan v. Ram Prasad, 2001 ACJ 647, wherein death of a workwoman due to lightning and the contention that lightning is an act of God and it has no connection with employment, Hon'ble Apex Court held that the death arose out of and in the course of employment and the heirs of the workwoman are entitled to compensation. It was further observed that workwoman was working on the site and she would not have been exposed to the hazard of lightning striking her had she not been working there. It is submitted that in the facts and circumstances of the case, learned court below committed error in exonerating respondent No. 2. It is submitted that the appeal be allowed and part of the award whereby respondent No. 2 has been exonerated be set aside.

(3.) Learned counsel for the respondent No. 2 submits that after due appreciation of evidence learned court below found that since there was no excessive stress, therefore, the respondent No. 2 cannot be held liable for payment of compensation. It is submitted that apart from this, even if it is assumed that it was found that the deceased was driver and was in employment of respondent No. 1, then too, since the incident is having no causal connection with the employment, therefore, the learned court below committed no error in exonerating the respondent No. 2. It is submitted that appeal be dismissed.