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Bombay High Court

BABITA UMAKANT NARWADE AND OTHERSversusSANJAY SOPAN MARDE AND ANOTHER

Disposal
Admitted/Allowed/Granted/Rule Absolute

Holding

The Court held that the death was attributable to injuries sustained in the accident and thus arose out of and in the course of employment, allowing the appeal.

Summary

The deceased driver Umakant Narwade died after a road accident that occurred while he was employed as a driver for the respondent employer. His widow, children and mother filed a compensation claim under the Employees Compensation Act, 1923, which was dismissed by the Compensation Commissioner on the ground that no post‑mortem was conducted. The appellants appealed, raising the questions whether the death arose out of and in the course of employment and whether the Commissioner was justified in refusing to answer certain issues. The High Court held that the nature of the injuries sustained was sufficient to presume that the death resulted from the accident and therefore fell within the scope of the Act. Consequently, the appeal was allowed, compensation of Rs.4,15,960 with 12% interest was awarded, and the respondents were directed to appear for determination of a penalty under the Act.

Issues considered

  • Whether the fatal accident can be said to have arisen out of and in the course of employment of the deceased driver.
  • Whether the Compensation Commissioner was justified in refusing to answer issues 6, 7, 8 and 9 on the ground that the claimants failed to prove death in service.

Legislation cited

Subjects

  • compensation
  • death in service
  • employer liability
  • insurance
  • Employees Compensation Act
  • fatal accident
  • out of and in the course of employment
  • interest
  • penalty

Judgment

2026:BHC-AUG:39038


                                                      1                       906-fa-597-2014.odt


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD
                                   FIRST APPEAL NO. 597 OF 2014

              1.     Babita Umakant Narwade (Died)
                     Through Appellant Nos.1 and 2.

              2.     Divya d/o Umakant Narwade
                     Age 23 years, (Minor) Occu : Nil,
                     R/o. Masla (Kh), Taluka Tuljapur,
                     District Osmanabad.

              3.     Rohan s/o Umakant Narwade,
                     Age 19 years (Minor), Occu : Nil,
                     R/o. As above.

              4.     Sakharbai w/o Vithal Nartwade (Died)
                     Through Appellant Nos.1 and 2.                   ..Appellants

                     VERSUS

              1.     Sanjay Sopan Marde
                     Age Major, Occu : Business,
                     R/o. Killaji, Taluka Tuljapur,
                     District Osmanabad.

              2.    The New India Assurance Company
                    Ltd, Near Mule Hospital, Solapur,
                    District Solapur.                                 ..Respondents
                                                 ...
                              Advocate for Appellants : Mr. Chavan PS.
                       Advocate for Respondent No.2 : Mr. M.R. Deshmukh
               Advocate for Respondent No.1 : Mr. N.D. Kendre h/f Mr. V.B. Deshmukh
                                                 ...
                                             CORAM : ROHIT W. JOSHI, J.
                                               DATED      : AUGUST 27, 2026
              ORAL JUDGMENT :

              1.        The appellants are dependents of deceased Umakant

              Narwade, who expired on 05.12.2007. It is not in dispute that while he
                                           2                            906-fa-597-2014.odt


was in employment with respondent no.1 as a driver, he met with a

road accident on 29.07.2007. He was initially admitted to a private

hospital     named      Siddheshwar     Multi     Facility   Hospital    Solapur.

Thereafter, he was shifted to Civil Hospital at Solapur on 31.07.2007.

He was discharged on 04.11.2007. He has suffered following injuries

for which he has undergone surgical procedure at Civil Hospital at

Solapur :

     1.         Neck femur, (rt) cII shaft femur (rt),
     2.         CII communited Patala (rt)
     3.         CII Tibia (rt) promixmal U3 rd.

2.              The deceased was discharged against medical advice from

Civil Hospital on 04.11.2007. A month thereafter i.e. on 05.12.2007,

he died at his residential house. The widow, children and mother of

deceased preferred an application seeking compensation on account of

demise of deceased during course of his employment vide W.C.A. No.16

of 2008. The learned Compensation Commissioner has dismissed the

claim petition on the ground that after demise of the deceased, post-

mortem was not conducted and as such, there was no evidence to infer

that the deceased had expired due to injuries suffered in road accident.

3.              The appeal was admitted vide order dated 22.01.2018 on

the following substantial questions of law :

           A)     Whether, in the facts and circumstances of the
           present case, the fatal accident can be said to be arising
                                      3                                 906-fa-597-2014.odt


        out of and in the course of employment of deceased
        Umakant?
        B)    Whether,    the   Commissioner        was     justified    in
        refusing to answer the issue numbers 6, 7, 8 and 9, on
        the ground that the claimants failed to prove that
        Umakant died in an accident arising out of and in the
        course of his employment as driver?

4.           In   the   considered   opinion   of    this     Court,      learned

Compensation Commissioner ought to have considered the evidence on

record in its totality. The fact of accident is not in dispute. Similarly,

the injuries suffered by the deceased are also not disputed. Even if it is

assumed that the deceased did not die on account of injuries suffered

by him in the said accident, from the nature of injuries it cannot be

disputed, the injuries are sufficient to arrive at a conclusion that the

same would result in 100% loss of earning capacity of a driver. The

deceased had suffered multiple fracture injuries in his right leg and was

incapacitated to perform the said work.        If we go by the relevant

provisions, even if a claim petition was filed as injury claim during

lifetime of the deceased, the compensation awarded would be more

than compensation to be awarded against the death claim. In that view

of the matter, in the considered opinion of this Court, learned

Compensation Commissioner was swayed by irrelevant consideration in

rejecting the claim preferred by the appellants. This Court is also of the
                                      4                            906-fa-597-2014.odt


opinion that having regard to the nature of injuries and prolonged

treatment, there would be a presumption that the deceased expired due

to injuries suffered in the road accident. In that view of the matter, the

appeal deserves to be allowed by answering the substantial question of

law no. (A) in favour of the appellants.

5.          Normally, the case should have been remanded to learned

Compensation Commissioner for answering the issues relating to

computation. However, the accident has occurred in July-2007 and

deceased had expired in December-2007. The claim petition was filed

in the year 2008. Having regard to the aforesaid, this Court is not

inclined to remand the matter for the purpose of computation. The

deceased was 30 years and 2 months old at the time of his sad demise.

The factor of 207.98 will be relevant factor as per Schedule-IV of the

Employees Compensation Act, 1923 for determining the amount of

compensation. At the relevant time, the upper limit of income of the

deceased employee was fixed at Rs.4,000/-. In view of Section 4(1A)

of the Act, 50% deduction will have to be made from monthly wages of

the deceased for the purpose of computation of compensation.

6.          In view of the above, total amount of compensation

payable will be Rs.4,15,960/-. In addition to this, the appellants will

also be entitled for interest @ 12% p.a. in view of Section 4A of the Act.

In view of the above, the appeal is allowed in following terms :
                                              5                        906-fa-597-2014.odt


             (i)     Respondent nos.1 and 2 are jointly and severally directed

             to pay compensation of Rs.4,15,960/- to the appellants along

             with interest @ 12% p.a. from the date of accident i.e.

             29.07.2007 till date of realization of the said amount.

             (ii)    Issue show cause notice to respondent no.1 as to why 50%

             of penalty as contemplated under Section 4A of the Employees

             Compensation Act, 1923 should not be imposed against him.

             Notice is made returnable on 30.09.2026.         Learned advocate

             waives notice for respondent no.1.

             (iii)   Parties are directed to appear before the Compensation

             Commissioner        and     Civil    Judge      Senior     Division,

             Osmanabad/Dharashiv on 30.09.2026.

             (iv)    Parties to note that separate notice for appearance will not

             be issued.

             (v)     The learned Compensation Commissioner and Civil Judge

             Senior Division, Osmanabad/Dharashiv is directed to decide the

             question of payment of penalty on its own merits in accordance

             with law.



                                                      [ROHIT W. JOSHI J.]



Mujaheed//


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