Difference between revisions of "Mallikarjuna G Hiremath Vs Branch MGR Oriental Insurance Co. Ltd & Ors (2009) INSC 294 (12 February 2009)"

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INTRODUCTION Mallikarjuna G Hiremath VS MGR Orienal Insurance is a case where the challenge in the appeal was to the Judgement of a learned Single Judge of the Karnataka High Court allowing Miscellanous First Appeal filed under Section 30(1) of the Workmen Compensation Act, 1923 (in short the `Act') filed by respondent No.1 (hereinafter referred to as the(`insurer'). The insurer had challenged the award passed by the Commissioner for Workmen Compensation (hereinafter referred to as the `Commissioner') in respect of the death of a driver.

FACTS 1. The appellant owned the vehicle to which the deceased was the driver. 2. Respondent no.2 filed an appeal stating that her husband Veeresh Kumar (hereinafter referred to as the ‘deceased’) worked as a driver in a truck bearing No. KA 34 1183. 3. She stated that her husband left Siraguppa to go to Gurugunta Amreshwara Temple along with certain passengers as per the directions of the appellant of this case. 4. When the vehicle reached Gurugunta, the deceased went to the pond and while taking bath at a pit, he slipped and fell down and had breathed his last breath due to drowning. 5. The claim petition was filed taking the stand that the death of the deceased had occurred during the course of and within employment under the appellant. 6. The vehicle had been the subject of insurance with the insurer and, therefore, it had been claimed that the insurer was liable to pay the compensation as the risk of the driver was covered under the policy 7. The Commissioner, Bellary by his order dated 11th July 2002 had allowed the petition and determined the compensation payable at Rs.2,20,046/- with an additional 12% interest. It had been held that the insurer was liable to pay the compensation. 8. The insurer had filed an appeal before the High Court, as mentioned above the stand taken by both the insurer and the appellant was that there was no connection between the accident causing death of the vehicle and therefore, neither the insurer nor the insured had any liability to pay any compensation. 9. The High Court had allowed the appeal filed by the insurer holding that there was no casual connection and therefore the insurance company was not liable. Further the High Court held granted the liberty to recover the compensation awarded from the appellant.

JUDGEMENT 1.Challenge in this appeal was to the judgement of a learned Single Judge of the Karnataka High Court allowing the Miscellaneous First Appeal filed under Section 30(1) of the Workmen Compensation Act, 1923 (in short the ‘Act’) filed by respondent No.1 (hereinafter referred to as the ‘insurer’). The insurer had challenged the award passed by the Commissioner for Workmen Compensation (hereinafter referred to as the ‘Commissioner’) in respect of the death of a driver. 2.In support of the appeal, learned counsel for the appellant had submitted that the death had not been occasioned during and in course of employment. It was also not disputed that the vehicle was the subject of insurance and the risk of the driver was covered under the policy. The High Court had accepted that the driver did not die as a result of an accident involving the vehicle. But the vehicle had been taken by the deceased in the course of employment at the behest of the appellant of the case to the temple. The main question raised by the High court was whether the death of the driver had occurred out of an accident arisen out of and in the course of his employment. 3.The High Court had also noted that there was no casual connection between the accident causing the death and the vehicle. The High court had also noted that since there was no such casual connection, he insurer would have not been held liable in terms of the policy as the vehicle which was the subject matter of the insurance was not involved in the accident and the insurer had no liability. 4.The learned counsel for the appellant had submitted that the approach of the High Court was clearly erroneous. After having held that there had been no casual connection between the death and the employment of the workman and after acquitting the insurer, the High court should not have directed the claimant (the family of the deceased) to recover the amount from the appellant of the case. 5.The learned counsel for the insurer had submitted that it had no liability in view of what is stated in he Section 147(1)(b) (i) of Motor Vehicles Act, 1988 (in short ‘M.V. Act’). 6.There had been no appearance on behalf of the respondent No.2. 7.Section 3(1) of the Act is relevant for the purpose of the case reads as follows:- EMPLOYER'S LIABILITY FOR COMPENSATION. - (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter : Provided that the employer shall not be so liable - (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to - (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen." 8.Under Section 3(1) it had to be established that there had been some casual connection between the death of the workman and his employment. If the workman died a natural death because of the disease which he had been suffering from or while suffering from a particular disease he died of that disease as a result of the wear and tear of the employment, no liability would be fixed upon the employer. But if the employment would have been a contributory cause or would have accelerated the death, or if the death would have been not only due to the disease but also the disease coupled with the employment, then it could have been said that the death had arisen out of the employment and the employer would have been held liable. 9.The word “accident” means an untold mishap which is not expected or designed. “Injury” means physiological injury. In Fenton v. Thorley & Co. Ltd. (1903) AC 448, it had been observed that the expression “accident” is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A.C. in Trim Joint District, School Board of Management v. Kelly (1914) A.C. 676 as follows: "I think that the context shows that in using the word "designed" Lord Macnaghten was referring to designed by the sufferer". 10.The above position has been highlighted by this court in Jyothi Ademma v. Plant Engineer, Nellore and Anr. (2006 (5) SCC 513). 11.It was the specific case of the claimants that on 30.11.2000, the deceased who had been driving the vehicle on the direction of the insured had gone to Gurugunta from Siraguppa. There he had gone to a temple and was sitting on the steps of the pond in the temple and had slipped and fell into the water and dies due to drowning. This according to the court was not sufficient in view of the legal principles delineated above to fasten liability on either the insurer or the insured. The High Court was not justified to hold that the present appellant was liable to pay compensation. 12. The appeal was allowed with no order as to cost.

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