Bombay High Court
Kalavati Sakharam Ingulkar vs Mahindra Ugine Steel Co. Ltd. on 6 April, 1988
Equivalent citations: (1993)IIILLJ768BOM
JUDGMENT Sugla, J.
1. The appellant (original petitioner/applicant) is the widow of the deceased workman who met with an accident and sustained injury on his right loin with contusion on the right of the back near kidney region. This was on the night of 25th and early morning of 26th January 1978. The accident admittedly took place in the course of and arising out of the employment.
The respondent (original opponents) for short referred to as the 'employers' have a small dispensary in its factory. The workman was immediately given first-aid treatment by the employer's Medical Officer who referred the workman to Lonawala Hospital for taking X-rays to exclude bone injury of hip and spine. He was admitted to Lonawala Hospital on 26lh January 1978 itself where Dr. Ranade examined him. Next day the workman passed some blood through urine. He was given treatment to avoid infection and relieve pain. He responded well to the treatment and improved considerably in the next few days. X-rays taken indicated that he had huge stones in both kidneys. He stopped passing blood in urine and was discharged from the Hospital on 8th February 1978. Dr. Ranade, however, gave him a note for the Medical Officer of the employers to the effect that the workman should be referred to Dr. Bharucha of K.E.M. Hospital, Pune for specialised kidney diseases. After resting for about a week at home the workman was brought to the employer's dispensary in ambulance and was sent to the K.E.M. Hospital where he was admitted on the same day, i.e., 16th February 1978. His right kidney was operated on 28th February 1978 and stones were removed. Left kidney was operated on 13th June 1978 and stones were removed but thereafter on 4th July 1978 the workman died for renal failure due to huge bilateral staghorn calculie.
2. Workman's Compensation Application No. 23 of 1979 filed by his widow was dismissed by the Commissioner for Workmen's Compensation and Civil Judge, Senior Division, Alibag by judgment and order dated 20th July 1981 on the following main grounds:-
"To sum up, position that emerges is that, Ingulkar sustained injury to his right loin resulting in causing damage to his kidney. Ingulkar was having huge bilateral staghorn calculie prior to the accident. Injury sustained by Ingulkar caused him to pass blood in his urine. He was treated in Lonawala Hospital by Dr. Ranade. When he was discharged from the Hospital, Ingulkar was walking and moving of his own accord and was passing urine normally. On his admission to K.E.M. Hospital, Pune, for treatment for huge bilateral staghorn calculie on 16th February 1978 urine of Ingulkar was examined and it was found that he was not passing the blood in urine. Ingulkar was not having haematuria then. Thus, the haematuria caused to Ingulkar consequently on his receiving injury on right loin was cured. Ingulkar was operated twice and died because of renal failure. His renal failure was caused by his kidney stones. Thus, there was no casual connection between the injury caused to Ingulkar in the accident resulting in causing him haematuria and his death on 4th July 1978 cause of which was renal failure due to huge bilateral staghorn calculie. I, therefore, hold that death of Ingulkar was not caused out of his employment with the opponent.'' I also hold that the death of Ingulkar was caused due to bilateral staghorn calculie. I therefore, record my findings accordingly.
3. There is no dispute that the workman had received injury in an accident which arose out of and in the course of his employment with his employers, the respondents herein. There is also no dispute that right from the day of the accident, i.e., morning of 26th January 1978 upto his death on 4th July 1978 the workman was either in Lonawala Hospital or K.E.M. Hospital except for a week between 8th February 1978 and 15th February 1978 and he was brought to the employers' dispensary in ambulance on 16th February 197 8 when he was taken to K.E.M. Hospital. Nor is there any dispute that the employers did all that could possibly be done in the matter of getting best medical treatment for the workman and spent about 17 to 18 thousand rupees and that the injury caused in the accident is not the direct cause of death of the workman. The dispute is on a very narrow issue, viz., whether injury accelerated the workman's death or the death is or can be attributed to the injury. It is now well-settled that death need not be a direct result of the injury. Even if it has or it can be said to have contributed to or accelerated the death, it is enough for the case to fall within the meaning of Section 3(1) of the Workmen's Compensation Act. Shri Vernekar, the learned counsel for the employers reiterated that the injury caused to the workman in the accident on the morning of 26th January 1978 was a minor injury. It was on the right loin on the right of the back near kidney. There was confusion. The workman was completely cured and was discharged from Lonawala Hospital on 8th February 1978. After 3-4 days of the admission in the hospital he had started passing urine normally. On the day of the discharge on 8th February 1978 he was walking on his own and was not passing any blood. The X-rays taken at Lonawala Hospital indicated that the workman was having huge stones in both the kidneys, i.e., he was suffering from huge bilateral staghorn calculie for years and it was for the removal of the stones from the kidneys that he was referred to and admitted in K.E.M. Hospital on 16.2.1978. The learned counsel stated that the workman's admission in K.E.M. Hospital and the removal of stones from the kidneys had nothing to do whatsoever with the injury. Assuming that the injury having been caused on the right loin, the right kidney was or could be affected indirectly by the injury, it cannot be said that death was accelerated by the injury inasmuch as the right kidney was operated on 28th February 1978 whereafter the workman survived for more than 4 months. It was 20 days after the operation of the left kidney on 13th June 1978 that the workman died of kidney failure. Therefore, according to the learned counsel, it could not be held by any stretch of imagination that the injury caused on 26th January 1978 attributed to or accelerated the death of the workman.
4. Shri Kochar, the learned counsel for the appellant, on the other hand, invited our attention to the fact that when the workman was discharged from Lonawala Hospital on 8th February 1978, Dr. Ranade had not given him a fitness certificate. Instead he gave a note for the Medical Officer of the employers to the effect that the workman should be referred to Dr. Bharucha of K.E.M. Hospital, Pune for specialised kidney diseases. According to him the fact that the workman was brought to the employer's dispensary in ambulance on 16th February 1978 for sending him to K.E.M. Hospital was very significant. The fact of the matter was that the workman had not fully recovered even for a day to join his duties after the injury was caused to him due to the accident till his death. The Commissioner was, therefore; not at all justified in holding that the death was not even attributable to or accelerated by the injury. If the workman was having huge stones in both the kidneys for years and nothing had happened, he could as well have survived for few more years but for the in jury.
5. We are inclined to accept the claim of the appellant/original applicant. Our reasons for the conclusion are more than one. The cause of death was stated to be renal failure due to huge bilateral staghorn calculie which means that both the kidneys of the workman had failed. In the absence of direct evidence on record it would only mean that even though the right kidney was operated on 28th February 1978 and the workman had survived upto 4th July 1978, the right kidney was also not functioning properly and the workman perhaps survived because of the left kidney. It was only when the second kidney also stopped functioning after the operation, the patient expired. In other words, if the right kidney of the workman would have survived even if the left kidney had failed. Therefore, it is not quite correct to say that the failure of right kidney had nothing to do with the death. Now coming to the fact that the injury was on the right loin or the right of the back near kidney, the workman passed blood in urine for few days and while discharging him, instead of issuing a fitness certificate Dr. Ranade of Lonawala Hospital sent a note to the Medical Officer of the employer company to refer the workman to Dr. Bharucha of K.E.M. Hospital for specialised kidney diseases. We found it difficult, if not impossible, to accept that huge stones in kidneys of the workman lying therein for years would immediately become a cause of concern all of a sudden and independent of the injury so as to require reference to Dr. Bharucha for specialised kidney treatment particularly as there is evidence of Dr. Bharucha that on admission on 16th February 1978 the workman was put on dilasis for sometime.
6. From the facts stated above we are of the view that the death of the workman is attributable to and in any event was accelerated by the injury caused in the accident which arose out of and in the course of his employment with the employer company. As a natural corollary the appellant is entitled to the claim of Rs. 21,000 /-
7. Keeping, however, in view that the employer company spent about Rs. 17,000/- to Rs. 18,000/- during and on the illness of the workman and that the death is not directly the result of the injury, we are not awarding any interest or penalty for the present. In case the workman's compensation stated above is not paid to the appellant/applicant within one month from the date of the order, the respondents shall be liable to pay interest at the rate of 6% per annum and may also be liable to penalty under Section 4(3A) of the Workmen's Compensation Act.
8. In the result the appeal is allowed with no order as to costs.