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CIVILAPPELLATE JURISDICTION
WRIT PETITION NO. 1387 OF 2022
1. Mrs. Deepa Pramod Waghchaude
(w/o. Late Mr. Pramod Waghchaude)
Age – 37 years, Indian
R/at Lambodhar Apartment
Room No. 203, 2nd
Floor, Adharwadi Road, Kalyan West
Dist. Thane – 421301.
2. Mrs. Anjali Anant Shelar
Age : 46 years , Indian
R/at 39/52, Juna Bombil Bazar, Govind Wadi, Koli Wada, Krushna Changa Koli Chowk, Kalyan West, Thane – 421 301. ...Petitioners
Through Department of Finance
Mantralaya, Mumbai
2. Directorate of Insurance
(Government Insurance Fund)
Griha Nirman Bhavan (MHADA)
264, First Floor, Opp. Kalanagar, Bandra (East), Mumbai – 400051.
3. Kalyan Dombivali Municipal Corporation
Shankarrao Chowk, Kalyan West, Thane – 421301. ...Respondents
Mr. A.I.Patel, A.G.P a/w Ms. S.D.Vyas 'B' Panel Counsel for the
Respondent-State.
Ms. Mayuri Karekar I/b Mr. Sandip Shinde for the Respondent No.3.
JUDGMENT
1. Heard Learned Counsel for the Parties.
2. Rule. Rule is made returnable forthwith, with the consent of the parties and is taken up for final disposal. Learned Counsel appearing for the respective respondents waive notice on behalf of the said respondents.
3. By this petition, preferred under Article 226 of the Constitution of India, the petitioners seek quashing and setting aside of the impugned letter / communication / order dated 31st December, 2020, issued by the respondent No.2 – Directorate of Insurance, and seek a direction to the respondent Nos.[1] to 3 to make ex-gratia payments to the petitioners (who are the wives of the deceased husbands i.e. Pramod and Anant, respectively) under the insurance claim.
4. A few facts, as a necessary to decide the petition, are as under; An unfortunate incident took place on 1st November, 2018 at about 2.30 p.m. near Bhimashankar Mandir, Chakki Naka, Kalyan, in a well. It appears that one - Kamlesh Omprakash Yadav, 22 years, was cleaning the well in the said area when he fell unconscious; that to save him, his cousin Rahul Gunwantgiri Goswami, aged 32 years, also a resident of the said area, went into the well and he too, fell unconscious. Pursuant thereto, his uncle Gunwantgiri Ratigiri Goswami, aged 56 years (also a resident of the said area ) stepped into the well and he too, fell unconscious. As all the said three persons were lying still, the fire brigade was informed. The fire brigade personnel reached the spot, and after inspection finding the well to be about 25-30 feet deep, laid a ladder in the said well. Firemen Anant Shelar i.e. petitioner No.2’s husband got into the well to help the persons who were lying unconscious in the well, however, Anant also fell from the ladder into the well, pursuant to which, Pramod Waghchaude – Petitioner No.1's husband started getting down to rescue Anant Shelar. It appears that Pramod Waghchaude on noticing that something was amiss, started stating loudly that there were gas in the well and started climbing up, however, he too, collapsed and fell in the well. As all the said persons were lying still, the fire brigade personnel pulled out the said five persons with a rope. On being taken to the hospital, all were declared to be dead. The police on 26th February, 2020, after investigation filed a report that the said deaths were accidental deaths.
5. The petitioners are the wives of Pramod Waghchaude and Anant Shelar respectively, who were working in the fire brigade department.
6. According to the petitioner no.1 vide notice dated 8th January, 2007, the respondent No.3 – Kalyan Dombivali Municipal Corporation (‘KDMC’ for short) had invited applications to the post of Firemen (trainee) in the respondent No.3 - KDMC. Accordingly, after completion of necessary formalities, the petitioner No.1's husband was appointed vide order dated 2nd July, 2007 to the post of Firemen, in the Fire Department, subject to certain terms and conditions mentioned therein. It appears that prior to the petitioner No.1's husband’s appointment to the post of Firemen, he was working as a Safai Karmachari in 'D' ward. It appears that in May, 2009, the petitioner No.1's husband was transferred to his original post of Safai Karmachari, on his request, and again in June, 2011, the petitioner No.1's husband was transferred to the Fire Brigade Department, on his request. Vide order dated 23rd August, 2012, issued by the respondent No.3 – KDMC, the petitioner No.1's husband was appointed on permanent basis in the Fire Department on certain terms and conditions.
7. As far as petitioner No.2 is concerned, she is the wife of late Anant Shelar. The petitioner No.2's husband – Anant Shelar was appointed in the Fire Department to the post of Firemen by the respondent No.3- KDMC, in the year 2004 and was working with the said department till his unfortunate death.
8. According to the petitioners, their husbands had an insurance cover i.e. they were covered under the Group Personal Accident Insurance Policy of the Government Insurance Fund, taken out by the Deputy Chief Fire Officer of the respondent No.3 – KDMC. According to the petitioners, the policy provided for an insured sum of Rs.11,30,000/- and that the same was in existence for the period 20th December, 2017 to 19th December,
2018. The name of the petitioner No.1's husband – Pramod Waghchaude appears at Sr.No.49 of the schedule annexed to the said insurance policy and the name of petitioner No.2's husband – Anant Shelar appears at Sr.No.89 of the schedule. Thus, both the petitioner's husband were covered under the said insurance policy.
9. In the unfortunate incident that took place on 1st November, 2018, the petitioners' husbands, who were part of the rescue team, that had gone to save the lives of three persons who had fallen in the well, had also succumbed to the toxic gases in the well and as such, lost their lives.
10. The post mortem report reveals that the final cause of death of petitioner No.'1s husband - Pramod and petitioner No.2's husband – Anant was ‘Asphyxia with drowning’.
11. It appears that the General Body of the respondent No.3 - KDMC had passed a resolution dated 20th December, 2018, by which, the general body, unanimously resolved to grant status of ‘Martyr’ to Pramod Waghchaude and Anant Shelar, having regard to the fact that they had died a heroic death in the rescue operation. The General Body further resolved to forward a proposal to the State Government to grant all consequential benefits to the deceased Pramod and Anant.
12. Accordingly, the Chief Fire Officer, KDMC had addressed a letter dated 29th June, 2020 to the Junior Technical Officer, Directorate of Insurance, Government of Maharashtra, in relation to the said incident dated 1st November, 2008. All documents, as required by the Directorate of Insurance (Respondent No.2) in relation to the insurance claim, were also submitted by the Chief Fire Officer of the respondent No.3 - KDMC. However, the insurance claims were rejected by the respondent No.2 i.e. the Directorate of Insurance, as alcohol content was found in the reports of deceased - Pramod and Anant.
13. Mr. Thorat, learned Counsel for the petitioners submitted that both Pramod and Anant as well as the other three persons had fallen unconscious and died due to the presence of toxic gases and elements in the well. He submitted that the Fire Brigade services is an essential service and that since the deceased Firemen i.e. Pramod and Anant, had died whilst rescuing persons, due to toxic gases, they were conferred the status of ‘Martyr’ alongwith other consequential benefits. He submits that the rejection of the insurance claim of the petitioners’ husbands will have an extremely discouraging effect on other employees, performing essential services. He submits that the respondent No.2 ought to have considered the said claims made by the petitioners compassionately and on humanitarian grounds, considering that both the petitioners’ husbands had scarified their lives whilst performing their duties.
14. According to the petitioners, a letter dated 13th November, 2020 was addressed by the Deputy Director of Insurance, Government of Maharashtra to the Section Officer, Finance Department, Government of Maharashtra, regarding the insurance claimed for ex-gratia payment, having regard to the deaths of Pramod and Anant. The insurance claim submitted under the insurance policy was for Rs.10,00,000/- each. It is the petitioners’ case that there was a resolution dated 5th August, 2019 passed by the Urban Development Department, that Firemen who have lost their lives in rescue operation at Kalyan have been granted the status of ‘Martyr’ and all other consequential benefits. It was stated that these workmen face challenging and life threatening circumstances on daily basis and hence a compassionate view is required to be taken and accordingly, requested that necessary approval be given to the insurance claims.
15. Learned Counsel for the petitioners further submits that again a letter dated 8th December, 2020 was addressed by the Deputy Director of Insurance, Government of Maharashtra to the Section Officer, Finance Department, Government of Maharashtra, regarding the claims under the Group Personal Accident Insurance Policy. It was stated that pursuant to the letter dated 13th November, 2020, a meeting was held on 7th December, 2020, between the Principal Secretary (Finance Department) and the Directorate of Insurance. It was stated that the insurance claims were supported by necessary documents for processing by the Finance Department, Government of Maharashtra. It was further stated that, in accordance with the Government Resolution dated 19th October, 2020, claims for ex-gratia payments and claims suffering from major defects were to be finally processed by the Directorate of Insurance after obtaining approval of the Finance Department of the Government of Maharashtra and hence, the Directorate of Insurance sought approval of the Finance Department, Government of Maharashtra, in order to process the claims under the Group Personal Accident Insurance Policy.
16. Learned Counsel for the petitioners submits that a letter / communication dated 31st December, 2020, by the Directorate of the Insurance, Government Insurance Funds, Government of Maharashtra, was sent to the Chief Fire Officer, KDMC, regarding the claims under the Group Personal Accident Insurance Policy. According to the petitioners, vide letter dated 29th June, 2020, the respondent No.3 – KDMC, had requested the respondent No.2 – Directorate of Insurance, to consider and approve the insurance claim pertaining to the unfortunate demise of the Pramod and Anant, so as to help the families of the ‘Martyr’. It appears that vide letter dated 13th November, 2020, a proposal for ex-gratia payments under insurance claims was forwarded to the Government of Maharashtra for necessary approval. It appears that the Government of Maharashtra noted that since the deceased were purportedly under the influence of an intoxicated substance, at the time of their death, the proposal for ex-gratia payments could not be approved, having regard to the rules. Aggrieved by the said letter / communication / order dated 31st December, 2020, the petitioner No.1 filed the aforesaid petition, through the Legal Services Authority. During the course of one of the hearings of this petition, we granted leave to Mr. Thorat, to implead the petitioner No.2. Accordingly, necessary amendments were carried out.
17. Learned APP has filed an affidavit-in-reply of Mr. Anant Raghunath Indulkar, Joint Director of Insurance, Mumbai, on behalf of the respondent Nos.[1] and 2. In the said affidavit-in-reply, it is contended that the Group Personal Accident Insurance Policy was subject to certain prescribed terms and conditions therein. It is further stated that the respondent No.3 – KDMC had opted for Personal Accident Insurance Policy for Employees (Fireman) from the office of Directorate of Insurance as per the policy prevailing in the insurance sector and on the terms and conditions, more particularly, set out in the policy instrument.
18. It is further stated that a Government Employee whilst performing his duty under the terms of his employment, is expected to observe all the terms and and conditions of the employment including that he should not be under the influence and / or be voluntarily intoxicated. It is further stated that the viscera report shows that Ethyl alcohol was found in the body of the deceased, which is contrary to the terms of employment, apart from being contrary to the terms and conditions of the insurance policy. The opinion of Dr. C.H.Ansari was relied upon. Thus, based on the report of Dr. Ansari and on the viscera report, it is concluded that the petitioners’ husbands were under the influence of alcohol. It was further stated that the employers of the KDMC ought to have ensured that the person performing their duties as Firemen, were not under the influence of Alcohol including drugs. Reliance was placed on clause 5 of the Group Personal Accident Insurance Policy. It is further stated that as the terms and conditions of the policy have been violated, the claim could not be processed and as such, it was liable to be rejected. The State Government hence rejected the claim of the KDMC, on 13th November, 2020, seeking ex-gratia payments to the petitioners.
19. Learned Counsel for the respondent No.3 – KDMC supported the petitioners’ claim seeking ex-gratia payments by the respondent Nos.[1] and 2. Infact, the respondent No.3 – KDMC tendered during the hearing, an affidavit-in-reply of Namdev Laxman Chaudhari, Chief Fire Officer of the KDMC dated 6th May, 2022. The said officer was present at the time when the unfortunate incident took place on 1st November, 2018. He has set out in detail, on affidavit, how the incident had taken place. The said affidavit was taken on record by us, today.
20. We find no justifiable reason for the respondent Nos.[1] and 2 to reject the claim of the petitioners for reasons which would be spelt out hereinunder.
21. Admittedly, the unfortunate incident took place on 1st November, 2018 at about 2.30 p.m. It appears that initially, Kamlesh Omprakash Yadav stepped into the well to clean the same, as he was found unconscious, Rahul Gunwantgiri Goswami went to rescue him; when Rahul become unconscious, his uncle – Gunwantgiri Goswami went into well to rescue them, and he too fell unconscious. The said facts are not disputed. Pursuant to the said incident, one - Ravindra Jadhav called the Adharwadi Police Station, informing them that three persons were trapped inside the well and had drowned in the said well, which as situated near Bhimashankar Temple, Chakki Naka. On receipt of the said call, Namdev Chaudhari, who, at the relevant time, was the Station House Officer alongwith his staff i.e. Shri Amesh Dighe, Shri. Amit Bhagat, Shri. Pramod Waghchoude (deceased), Shri. Rajaram Gaikar, Shri. Mushak Makandar with the Sub-Ordinate Officer, Shri. Dattatray Shelke and Driver Ravindra Isame, reached the said spot. It appears, that on reaching the said location, the Sub-Officer Shri. Jeevan Borhade, Leading Fireman Shri. Sunil More, Fireman Shri. Anant Shelar (deceased), Shri. Bandu Sahare and driver Shri. Anand Ovhal of ‘D’ Ward were also present. On reaching the said location, it was learnt that the said well was about 20 to 30 feet deep and had one to two feet water and that three people were trapped in the said well. Pursuant thereto, the electricity supply was cut off and an extension ladder of the Fire Department was laid till the base of the well. It appears that with the aid of the extension ladder, Anant Shelar (deceased) entered the well and tried to pull the persons from the well, however, due to movement in the water, the toxic gases got released and before Anant could give any indication, Anant fell unconscious in the well. It appears that on seeing Anant falling into the well, Pramod Waghchoude who was on the upper end of the extension ladder, went to save Anant Shelar. Pramod Waghchoude also could not reach the base of the well, due to the presence of toxic gases and thus he tried to come out of the well with the help of the ladder. It appears that due to the toxic gases, Pramod had difficulty in breathing and he too fell unconscious, into the well. Infact, it appears that when Pramod tried to rescue Anant and went down, he shouted twice that there was gases in the well, after which, he fell unconscious. The aforesaid facts have been spelt out by the witnesses i.e. in the statement of Ravindra Jadhav, in the accidental report and in the affidavit of the respondent No.3 – KDMC i.e. of Namdev Chaudhari who was present at the spot, at the time of incident. Namdev Chaudhari has further stated that since both his staff i.e. Anant and Pramod had fallen in the well, he himself decided to go in the well, however, due to his intuition with respect to presence of toxic gases and on understanding the situation at hand, stayed at the upper end of the well. A perusal of the post mortem report of both, Anant and Pramod shows that they died due to ‘asphyxia with drowning’.
22. It is pertinent to note that when Anant and Pramod were removed from the well and taken to the hospital, they were covered with black stinking fluid. This has been stated by the doctor who examined the said persons in the Star City Multi-speciality Hospital. The spot panchanama shows that a strong and foul smell was emanating from the well.
23. During the course of hearing, we called for the post mortem reports of the other three persons who had fallen unconscious in the well due to inhalation of toxic gases and had succumbed to the same. After perusal of the said post mortem reports of Anant Shelar, Kamlesh Omprakash Yadav and Rahul Goswami, we find, that the cause of death of the said persons is also ‘due to Asphyxia with drowning’. It is pertinent to note, that the final cause of death of all the five persons, including the petitioners’ husbands, in the post mortem shows that their death was due to asphyxia with drowning. Infact, it is pertinent to note that ‘Ethyl Alcohol’ was also seen in the viscera report of even the said three persons who had fallen unconscious due to poisonous gases in the said well and had succumbed to the same. The contents of alcohol were almost similar in each of the five reports, which is highly improbable. It is pertinent to note that the Executive Engineer, KDMC had addressed a letter dated 2nd November, 2018 to M/s. Sky Lab Analytical Laboratory, Kalyan, and had requested for a report after conducting a scientific microscopic analysis of three water samples from the well. It appears that vide letter dated 13th November, 2018, M/s. Sky Lab Analytical Laboatory, Kalyan, submitted its analysis report of the well water and nalla water from Netivali. The said report which is at Exhibit-I of the petition shows that the well water contained dissolved and suspended solids, nitrate, chloride, ammonia, nitrogen alongwith presence of E-Coli and other parameters. It is pertinent to note that Carboxyhaemoglobin and Ethyl Alcohol were also detected and the same is evident from the C.A. report, of all the five persons. The range of Ethyl Alcohol is almost similar in the said five persons. Dr. Ansari’s report has not taken into consideration, several key factors nor has considered the lab report of M/s Sky Lab Analytical Laboratory, Kalyan. It, thus, prima facie, appears that the well contained fluid and other ingredients, as a result of which, the same was seen in the viscera report. It is also evident that there were toxic gases in the well resulting in what was found in the viscera report.
24. It is not in dispute that the petitioners’ husband – Pramod and Anant, both had gone to rescue the three persons who had fallen in the well unconscious and had drowned due to toxic gases in the well. It also appears that the petitioners’ husbands were given the status of ‘Martyr’, pursuant to the resolution passed by the KDMC having regard to the fact, that they had succumbed to the toxic gases while rescuing three persons and for the bravery shown by them.
25. The respondent Nos.[1] and 2 have rejected the petitioners’ proposal only because, Ethyl Alcohol was found in the viscera report and having regard to Dr. Ansari’s report. It is pertinent to note, that even the three other persons whose post mortem was conducted, Ethyl Alcohol was found. It appears to us that it is because of the toxic gases and fluids found in the well, that the report showed, Ethyl Alcohol in the viscera report. Therefore, it is clearly evident that the petitioners’ husbands i.e. Pramod and Anant, succumbed to the toxic gases and fluids found in the well and as such, there was no justification for the State to reject the petitioners’ claim under the Group Personal Accident Insurance Policy. The petitioners’ husbands answered their call of duty, which was to rescue/save the lives of the three persons, who were lying unconscious in the well. The petitioners’ husbands without batting an eyelid, went forward, only to succumb to the toxic gases and fluids in the well. Infact, when Pramod went to rescue Anant, he realised that there were toxic gases, and accordingly, told others, however, before he could climb up, he too became unconscious and fell in the well. It is unfortunate that the authorities did not consider all the aforesaid factors in its proper perspective, before disallowing the petitioners’ claim. This will have a cascading effect on others performing similar duties. The petitioners’ husbands gave their lives to save others and inspite of them being given a ‘Martyr’s status, the petitioners are being denied ex-gratia payment under the Insurance Claim.
26. It is not in dispute, that the petitioners’ husbands’ were insured under the Group Insurance Policy and as such, they are entitled to receive the amount under the insurance i.e. Rs.10,00,000/- each. The petitioners’ husbands’ died performing their duties, due to the toxic gases and other fluids which were present in the well. The post mortem report of all five persons who fell unconscious initially to toxic gases and fluids in the well and thereafter, succumbed to the same, clearly shows that they all died due to ‘Asphyxia with drowning’.
27. Having regard to what is stated aforesaid, we allow the petition and accordingly, quash and set aside the impugned letter / communication dated 31st December, 2020 issued by the respondent No. 2 i.e. Directorate of Insurance, by which, the claim of the petitioner for ex-gratia payment under the insurance claim was rejected. Accordingly, we direct the respondent Nos.[1] and 2 to release Rs.10,00,000/- to each of the petitioners under the insurance scheme in favour of the petitioners.
28. Rule is made absolute on the aforesaid terms. Petition is accordingly disposed of.
29. The said payment to be made by the respondent Nos.[1] and 2 to the petitioners, as expeditiously as possible, and in any event, within eight weeks from the date of receipt of this order.
30. All concerned to act on the authenticated copy of this order.
MADHAV J. JAMDAR, J. REVATI MOHITE DERE, J.