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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J. JAMADAR, J.
Smt. Harvinder Kaur Vishakha Singh – Appellant
Versus
Shri Tarvinder Singh K. Singh – Respondent
First Appeal No. 1476 of 2007
Decided On : 17-01-2022
Motor Vehicles Act, 1988 - Section 147 - Employees Compensation Act, 1923 - Section 3, 30(1) – Appeal - Appeal is directed against judgment and award in Application, passed by Commissioner for Workmen’s Compensation and Judge, whereby application preferred by appellants-applicants for compensation on account of death, of deceased, on account of accident arising out of and in course of his employment, while driving motor vehicle owned by opponent no. 1 employer and insured with opponent no. 2-insurer, to be dismissed - Whether such approach of learned Commissioner is justifiable - Whether applicants prove that deceased met with fatal accident in course of and arising out of use of vehicle with opposite party and died - Whether applicants prove that they are entitled to receive compensation claimed or such other amount from opposite parties Nos. 1 and 2 - Whether applicants prove that they are entitled to receive compensation with penalty and interests – Held, fact that insurance investigator (witness no. 1 for opposite party no. 2), had obtained a certificate from opposite party no. 1 that deceased was working with his organization since last two years and was driving tankers and was earning Rs. 2,000/- per month, as salary, could not have been so construed as to conclusively establish that deceased was not working with opposite party no. 1 - It is more so for reason that identity of registered owner of vehicle in question, fact that deceased was driving said vehicle at time of occurrence and it was insured with opposite party no. 2, were not in contest - In absence of a specific defence having been set up in written statement, in Court considered view, a document of aforesaid nature, which might have been obtained by insurance investigator in an unguarded moment, cannot command primacy to prejudice of dependents of deceased employee - Appeal stands allowed.
JUDGMENT :
N.J. JAMADAR, J.
1. This appeal is directed against the judgment and award dated 14th April, 2007 in Application (WCA) No. 17/B-8/2004, passed by the Commissioner for Workmen’s Compensation and Judge, 8th Labour Court at Mumbai, whereby the application preferred by the appellants-applicants for compensation on account of death, of late Vishakha Singh Suman Singh (the deceased), on account of accident arising out of and in the course of his employment, while driving motor vehicle (truck) bearing No. MH-04-F-8979, owned by opponent no. 1 employer and insured with opponent no. 2-insurer, on 3rd November, 2003, came to be dismissed.
2. The background facts leading to this appeal can be stated in brief as under:
(b) While the deceased was driving the said truck bearing No. MH-04-F-8979, on his way to Mumbai, in the course of employment, the deceased died at Chandwad, district Nashik. Inquest was held on the body of the deceased. Postmortem examination was conducted. It was opined that the deceased died on account of coronary artery heart disease. The applicants asserted that the deceased died on account of the stress and strain of employment as the deceased had been driving the said vehicle continuously since 17 to 18 days. On the day of the death, the deceased was on his way to Mumbai from Ranchi, which is at a distance of 1800 kms. from Mumbai. Thus, the applicants claimed compensation of Rs. 3,94,120/- along with interest and penalty.
(c) The opposite party no. 1-employer filed the written statement. It was admitted that the deceased was employed with opposite party no. 1 as a driver on the above-numbered vehicle and met death on 3rd November, 2003, at Chandwad, Nashik, on his way to Mumbai, in the course of employment. The opposite party no. 1 further admitted that he was paying wages of Rs. 4,000/- per month and a claim form was submitted to the insurer with the aforesaid particulars.
(d) Opposite party no. 2-insurer resisted the claim principally on the ground that the death, which the deceased met, was natural. The death was not on account of the use of the motor vehicle. Nor the accident occurred out of the employment. The contingencies as specified in Section (II) of the Contract of Insurance dated 29th September, 2003 and Section 147 of the Motor Vehicles Act, 1988, were not made out, and thus the applicants were not entitled to claim compensation. In substance, there was no nexus between the death, which the deceased met, and the use of the vehicle, which was insured with opposite party no. 2-insurer.
(e) In the backdrop of the aforesaid pleadings, the learned Commissioner framed following issues at Exhibit-O-4:
1. Whether the applicants prove that the deceased met with fatal accident in the course of and arising out of use of the vehicle with the opposite party and died?
2. Whether the applicants prove that they are entitled to receive the compensation claimed or such other amount from the opposite parties Nos. 1 and 2?
3. Whether the applicants prove that they are entitled to receive the compensation with penalty and interests?
(f) The learned Commissioner recorded the evidence of applicant no. 1 Smt. Harvinder Kaur (witness no. 1-for the applicants), Mr. Tarvinder Singh (witness no. 1 for opposite party) and Suryakant Kambli (witness no. 1 for insurer). After appraisal of the oral evidence and documents tendered
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