MODEL FORMAT OF NOTES OF ARGUMENTS
BEFORE DEPUTY COMMISSIONER OF LABOUR WHEN POSTMORTEM CERTIFICATE NOT PRODUCED
BY THE CLAIMANT.
BEFORE THE DEPUTY COMMISSIONER OF
LABOUR
place.
EC / 20.
Name of the claimant --- Petitioner.
VS
Name of the insurer ---
2nd
opposite party.
NOTES OF ARGUMENTS FILED
ON BEHALF OF 2ND OPPOSITE PARTY ABOVE NAMED.
1. The above mentioned case
has been filed by ---- and another claiming compensation of Rs.------------/
for the death of their son -------, when he was under employment of 1st
opposite party as crane operator. He was aged 21 years at the time of accident.
2. The petitioners state that
their son died when he was working as a crane operator in a vehicle bearing
regn.no. ----------- belonging to 1st respondent. On ------- at hrs he was working in SICALDISTRIPARKS Ltd,
he suffered chest pain because of the stress in work, and while trying to stop
the vehicle, he fell down from it, sustained injuries and succumbed to the
injuries on the way to the hospital.
3. Actually as per the FIR
the deceased was not engaged in operating crane. He was speaking with one --------
by sitting on the crane and at 2.30 pm his friend came, and when trying to get
down from the crane he fell down and got sprain in the foot went to the hospital
and returned. At 3.30 he got chest pain and again taken to the hospital and
then returned. At 5.00pm he got severe chest pain, taken to the hospital but
died on the way to the hospital.
4. The deceased did not died because of stress and stain during course of employment. Unless established that death occurred because of stress and strain during course of employment, compensation cannot be awarded. Cause of death not known and FIR has been filed only under sec 174 CrPC. Post mortem certificate also not produced. Death due to stress / strain caused during course of employment not established. When not established hon’ble cannot grant award as stated in 2017 (2) TNMAC 398 (MAD)
5. The claimants have not
established that the incident had occurred out of and during the course of
employment. The principles governed regarding this aspect as per shakuntala
chandrakant shreshti Vs prabhakar Maruthi garvali and another 2006(2) TNMAC
255(SC) is
1. There must a casual
connection between the injury and the accident and the accident and the work
done in the course of employment.
2. The onus is upon the
applicant to show that it was the work and the resulting strain which
contributed to or aggravated the injury.
6. In a case of this nature
to prove that accident has taken place, factors which would have to be
established, inter alia are
1. Stress and strain arising
during the course of employment.
2. Nature of employment
3. Injury aggravated due to stress
and strain.
Relying upon the above observations of the apex court, unless it is
shown that the death occurred
1. Because of the stress and
strain arising during the course of employment.
2. The nature of the
employment.
3. The injury was aggravated
due to stress and strain.
this hon’ble court may not be pleased
to grant compensation.
7. Unless evidence is brought
on record to elaborate that the death by way of cardiac arrest has occurred because
of stress or strain, this hon’ble court may not be pleased to grant damages.
8. In order to succeed the
claim, the claimant has to prove that the employee sustained an ‘employment injury’
arising out of and in the course o employment. This condition has to be
fulfilled before a claim to be made under the workmen’s compensation act.
9. In the instant case, there
is no direct evidence that the death was caused too the deceased while he was
discharging his duties in the course of employment.
10.
Unless it is shown that there was a relationship between the
nature of the work done and the injuries suffered, compensation cannot be
awarded.
11.
Only because a person dies of heart attack, the same does not
give rise to automatic presumption that the same was by way of accident. The
deceased might be suffered from heart disease although he may not be aware of
the same. Medical opinion will be relevance providing guidance to the court in
this behalf. But here, in this case post mortem certificate was not produced.
12.
The burden to prove
the connection of employment with the injury
is on the applicant.
13.
The evidence of pws that deceased complained chest pain
during the work cannot be believed in the absence of any other testimony.
Admittedly, there was no postmortem
certificate produced and the cause of death was not known.
Unless it is shown and
proved by the claimant through cogent evidence that the death was caused by
stress or strain caused during the course of employment, this hon’ble may not
grant compensation. Since the claimants have failed to prove the cause of the
death by proper medical evidence and also failed to produce postmortem
certificate, this hon’ble court may be pleased to dismiss this claim petition
and thus render justice.
Advocate for 2nd
opposite party.
Before the deputy
Commissioner of labour,
place.
EC
/ 20.
Name of the claimants
--- claimants
---------------------
Notes of arguments
filed on behalf of
2nd opposite party.
--------------------
Name of the respondent
--- 2nd opposite party.
By
NAME.,
ADVOCATE
PLACE.
Posts
0 Comments