Madras High Court
United India Insurance Co. Ltd vs Mrs. Padmini on 29 January, 2013
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.01.2013 CORAM : THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.3638 of 2012 and M.P.No.1 of 2012 United India Insurance Co. Ltd., Divisional Branch, Uthagai, Nilgiri District. ... Appellant ..Vs.. 1.Mrs. Padmini 2.Assistant Manager, Devarsola Estate, Thaisola Plantations (P) Ltd., Devarsola 643 207, Nilgiris District. ... Respondents Prayer : Civil Miscellaneous Appeal filed under Section 30 of Workmen's Compensation Act, 1923 against the order in W.C.No.3 of 2008, dated 29.07.2011 on the file of Commissioner for Workmen Compensation, Deputy Commissioner of Labour, Coonoor. For Appellant : Mr.M.B.Gopalan For Respondents : Mr.Balan Haridas J U D G M E N T
Challenge in this Civil Miscellaneous Appeal is to the finding fastening liability on the appellant Insurance company to pay compensation of Rs.1,32,121/- for the death of one Mr.Prahaladan, a Night Watchman in Devarshola Estate, Thasishola Plantation Pvt. Ltd., Devarshola, Nilgiris District.
2. As per the claim in W.C.No.3 of 2008, made by the wife, the deceased was employed as a Night Watcher in Devarshola Estate, Coonur, Nilgiris District. On 12.03.2007, when he was engaged in his duty, he fell down from a vulnerable post. He sustained injuries. Besides, there was shock. Though, he was provided with first aid and treated in Estate Garden hospital and thereafter, rushed to Sultan Battery MES Hospital, about 25 kms away from the Estate, he died. The certificate issued by the hospital indicated death was due to stroke as a result of Cerebral Hemorrhage, and also hypertension.
3. According to the widow, her husband earned Rs.2,264.60p per month, prior to death. Notice of accident was served on the 2nd opposite party on 14.03.2007. As the compensation claimed was not paid by the Management, it resulted in a claim before the Deputy Commissioner of Labour. United India Insurance Company, Ootacamand, the 1st opposite party has opposed the claim, contending inter alia that there was no accident during the course and arising out of employment, with the 2nd opposite party.
4. According to the Insurance company, admittedly the deceased was suffering from hypertension and other diseases, which ultimately led to cerebral hemorrhage and stroke and hence the death was only due to the disease and not due to any employment injury, alleged to have occurred on 12.03.2007. The company has further submitted that in the absence of any police complaint or post mortem conducted on the body, the cause of death cannot be attributed to any employment injury, arising out of an accident during the course of and arising out of the employment, in the plantation estate.
5. Before the Commissioner for Workmen's Compensation viz., Deputy Commissioner of Labour, Coonur, widow of the deceased examined herself, as AW1 and reiterated the averments made in the claim petition. AW2, is stated to be a co-employee and an occurrence witness. AW3 is the Doctor, examined on behalf of the applicant / claimant. Ex.P1, Salary chit, Ex.P2, Claim petition, Ex.P3, death certificate, Ex.P4, Certificate issued by MES Hospital, have been marked on the side of the claimant.
6. The 2nd opposite party, has also denied the contention that Prahaladan, husband of the 1st respondent met with an accident, in the course of employment. However, in the counter affidavit, the Sr. Manager, Devarshola Estate has submitted that the deceased was found on the ground vomiting blood around 1.15 a.m., on account of stroke due to cerebral hemorrhage and hypertension, which had nothing to do with the employment and that it was only due to the pre-existing disease. The Senior Manager of the Estate has further submitted that the death was natural, on account of the pre-existing ailment and that there was no nexus between the death of the deceased and employment. The Estate Manager in his counter affidavit has further submitted that prior to death, the injured was found unconscious and while he was shifted in an ambulance to Garden Hospital, his blood pressure reading was 140/90 and the Pulse rate recorded 60 per minute, and taking into consideration the physical condition, he was rushed to Muslim Education Society Hospital, at Sultan Battery for further treatment. Without prejudice to the above, he has submitted that in as much as there was an insurance policy with the company, no liability can be fastened on the Estate. In the above said circumstances, prayed for dismissal of the claim, against the Estate.
7. On behalf of Devarshola Estate, Mr.Vinay Devaiah, the Manager of the Estate examined himself as RW1 and reiterated the averments made in the counter affidavit. Ex.R1, dated 12.03.2007, letter given by the administration and Ex.R2, Salary certificate, have been marked on behalf of the 2nd opposite party, Estate.
8. Upon evaluation of pleadings and evidence, the Deputy Commissioner of Labour for Workmen's Compensation, Coonur, held that the accident occurred during the course and arising out of employment and accordingly, quantified the compensation as per the structured formula provided for, under the Employees' Compensation Act, 1923 and awarded compensation of Rs.1,32,121/- with interest, at the rate of 10% per annum, as per the provisions of the Act.
9. Being aggrieved by the finding fastening liability on the company to pay compensation, Mr.M.B.Gopalan, learned counsel for the company submitted that the death of Mr.Prahaladan, husband of the respondent, was on account of stroke due to cerebral hemorrhage and hypertension, which had nothing to do with the employment and that the death was only due to the pre existing ailment. Pointing out that the deceased did not sustain any grievous fatal injuries, proximate to the cause of death and also to the fact that no FIR was registered by the legal representatives of the deceased or any other person and inviting the attention of this Court to the contents of Ex.P3, death certificate issued by the hospital that the death was on account of stroke and cerebral hemorrhage and hypertension, learned counsel for the insurance company submitted that the Commissioner for Workmen, has erred in arriving at the conclusion that there was an employment injury, arising out of and in the course of employment and consequently, erred in fastening liability on the company to pay compensation. He also pointed out that to prove the cause of death, no postmortem has been done. According to him, the deceased was only suffering from heart ailment and blood pressure and even assuming that there was an untoward incident, on 12.03.2007, within the estate premises, still it cannot be construed that the death was due to stress and strain, involved in the avocation or due to the injury, the 1st respondent died. According to him, the Commissioner for Workman has mechanically allowed the claim petition, when the death was not due to any accident, during the course of and arising out of employment.
10. Per contra, inviting the attention of this Court to the counter affidavit, filed by the Senior Manager, Devarshola Estate, Coonur, Nilgiris that the employment of the deceased Prahaladan with the Estate has not been denied, Mr.Balan Haridas, learned counsel for the 1st respondent submitted that the fact that the deceased was taken from the premises of the Estate to the hospital has not been disputed. Taking this Court through the oral testimony of AW2, Mr.Peter, a co-watchman employed in the Estate who has deposed to the effect that Prahaladan sustained an injury and thereafter, started vomiting blood and rushed to the hospital, learned counsel for the 1st respondent submitted that the presence of the deceased on 12.03.2007 and the injury sustained during the course of and arising out of employment cannot be disputed. He further submitted that AW2, an acting watcher has clearly deposed that the duty of the watchman in the 2nd shift, is to monitor the factory and give proper signals and report, and that the duty hours were between night 1.00 A.M. to next day morning 8.00 A.M. and when he had found the deceased, on the ground, vomiting blood, he had immediately informed the factory officer Mr.Benjamin and took the deceased Prahaladan to the Garden Hospital, in an Ambulance. He has further deposed that, as there was no doctor and only nurses were available in the said hospital, on the advice of the Compounder, Prahaladan was taken to Hospital at Patheri.
11. AW3, Doctor, examined on behalf of the respondent, has deposed that on provisional diagnosis of stroke, the injured was not moving the left side of the body. CT Scan was done on the same day and according to him, CT Scan revealed a large intra cerebral hemorrhage in the right side. Though he was treated for two days in the hospital, he died on 14.03.2007 at 12.45A.M.
12. One Mr.Vinay Devaiah, Manager of Estate has admitted that the deceased was an employee of the estate. He has deposed that there was no accident arising out of and during the course of employment resulting in employment injuries.
13. Pleadings and evidence on record makes it clear that, the time of the 2nd shift was between 1.00 A.M. (night) and 8.00 A.M. (on the next day). As per the version of AW2, the acting watcher, it is the duty of a watchman to go around the factory and monitor the activities of the workmen engaged, during the 2nd shift and give proper signal. During his 2nd shift duty, he had found Mr.Prahaladan, on the ground. In his evidence, he has clearly deposed that the deceased was found vomiting blood. Mr.Vinay Devaiah, Manager of the estate, while admitting the employment of the deceased has also deposed that the deceased was found on the ground vomiting, at 1.15A.M. Thus it is clear that the deceased was in employment of the estate on that day and that there is categorical evidence to prove that he was found on the ground, vomiting blood.
14. One of the contentions raised by the learned counsel for the appellant Insurance company is that the Commissioner has recorded an erroneous finding, in the absence of FIR or postmortem report. At this juncture it is worthwhile to consider the testimony of AW2, Acting watcher of the Estate, who has clearly deposed that when he had noticed Mr.Prahaladan on the ground, immediately thereafter, Mr.Benjamin, the Factory Officer was informed and thereafter, the deceased was rushed to Garden Estate Garden hospital in an ambulance. As the Doctor was not available and nurses only were available, as advised by the Compounder, Prahaladan was taken to another Hospital at Patheri.
15. Though the learned counsel for the insurance company has submitted that postmortem report has not been filed to prove the cause of death and much reliance has been placed only on Ex.P4, certificate issued by ENS Hospital and on the oral testimony of RW1, Vinay Devaiah, Manager of the Estate, perusal of the award shows that inspite of an untoward incident and immediate reporting to the Factory officer, the police has not been informed, by the Factory officials. The accident has occurred on 1.15 AM. When AW2, has noticed Prahaladan, he had immediately informed the Factory Officer and thereafter, the injured has been provided with initial treatment. Both Estate Garden and MES Hospital are private hospitals. No sooner the persons who found Mr.Prahaladan on the ground vomiting blood, have informed the hospital authorities that the deceased, after a fall from a vulnerable point, sustained an injury and was found vomiting blood, the hospital authorities should have registered a medical legal case and that they should have also informed the police. The evidence of AW2, Acting watcher is to the effect that the deceased sustained an injury. Relevant portion of his evidence, extracted from the award.
"ehd; njtu;nrhyh bjhHpw;rhiyapy; md;iwf;F Acting Watcher Mf ntiy bra;njd;. 12/03/2007y; ntiy bra;njd;/ mjd;gpwF gpufyhjd; vd;gtu; ntiy ghu;j;jhu;/ Factory KGtJk; round bra;J rpf;dy; bfhLj;J Fwpg;gpl;l ,ilntisapy; ,Jnghd;W bjhlu;e;J fz;fhzpj;J tUtJ vd; ntiy/ 12/03/2007y; dutyy; ,Ue;jnghJ jpU/gpufyhjd; vd;gtu; mogl;L ifapy; mogl;L fPnH tpGe;J fple;jhu;/ ,uj;j the;jp vLj;jpUe;jhu;/ mij Factory Officer jpU/bg";rkpd; vd;gthpd; Twp Ambulancey; kUj;Jtkidf;F vLj;Jr;brd;whu;fs;/ kUj;Jtkid (Garden Hospital) Devarsholay; kUj;Jtu; ,y;iy/ eu;!; ,Ue;jhu;fs;/ tutiHj;J ghu;j;J gj;njhpf;F bfhz;L bry;y Twpdhu;fs; vd;Wk; bjhptpj;Js;shu;/ FWf;F tprhuizapd;nghJ. bjhHpw;rhiyapy; cs;s fhtyu; vj;jid kzp neuk; ntiy bra;tPu;fs; vd;why;. 3 c&pg;l; 2?tJ c&pg;l; ,ut[ 1ypUe;J fhiy 8 kzp tiu vd;Wk; bjhptpj;Js;shu;/"
16. Though, RW1, Mr.Vinay Devaiah, Estate Manager, has deposed that the death was only on account of stroke, due to cerebral hemorrhage and hypertension and on that basis the insurance company has contended that there was no proximity, with any employment injury, giving rise to cause of action for claiming compensation under the Employees Workmen's Compensation Act, after considering a Division Bench judgment of this Court in Managing Director, Pallavan Transport Corporation, Madras Vs. Saroj Goyal, reported in 2001 (2) LW 292, the Commissioner for Workmen, has given weightage to the testimony of AW1 and AW2 and accordingly held that the accident occurred during the course of and arising out of employment resulting in death, and accordingly, awarded compensation.
17. In the above said Division Bench judgment, except the oral testimony of the claimant and PW2, eye witness, no other evidence was let in by the legal representatives of the deceased. Likewise, except the oral testimony of RW1, driver of the bus, there was no supporting oral evidence. Even in the absence of police records like FIR, etc., the Division Bench of this Court, at paragraph No. 8, held as follows:
"Likewise, merely because the eye witness did not inform the police nor made any specific complaint it did not diminish his statement before the Court regarding the manner of accident. If the evidence of the said witness is cogent, natural and probable even in the absence of the fact that he did not inform the police regarding the manner of accident, it can safely be accepted. In this regard learned counsel appearing for the claimants very much relied upon Natchathiram and Others V. Jayasekaran and Others, reported in 2000 ACJ 902. The learned Judge in a similar circumstance has held, "10.... The mere fact that he has not given any complaint to the police will not diminish the credibility of the witness to any extent as observed by the tribunal....".
We are in agreement with the view expressed by the learned Judge."
18. Primarily, when the Commissioner for Employees Workmen's Compensation Act, on proper analysis of oral and documentary evidence and after, taking note of a Division Bench judgment of this Court, has arrived at a conclusion, that the accident occurred during the course of and arising out of employment, no manifest illegality can be attributed to the impugned award.
19. At the time of accident, the deceased was aged 60 years. According to the appellant and the employer, the cause of death was on account of stroke, cerebral Hemorrhage and hypertension. The work of a watchman includes constant check and monitoring, inside the factory / industry premises. First of all, no document has been filed by the Insurance Company to prove that the deceased had a pre existing ailment, of any heart problem or blood pressure. Even assuming that the deceased had blood pressure and ailment, yet the stress and strain involved in the duty of a watchman, during night hours, keeping vigil inside the factory premises, cannot be ruled out. As per medical texts, the sleeplessness, increases blood pressure. When there is a likelihood of stress and strain arising out of the employment depending upon the nature of employment, shock due to an injury, would certainly, accelerate any pre existing disease. Thus even taking it for granted that the Night Watchman Prahaladan was suffering from blood pressure and suffered a stroke, due to cerebral hemorrhage and hypertension, there is a causal link between the death and the employment injury, which he sustained during the night hours on 12.03.2007, and that the same cannot be ruled out.
20. As per the claim, while patrolling at a vulnerable point and after giving a beep sound, Mr.Prahaladan fell down from a post, sustained an injury in the hand, found unconscious and rushed to the hospital. Increase in blood pressure to a 60 years old man, may be, due to the sudden fall from a height and lateron, he would have suffered a stroke, or after the hemorrhage and stroke, he would have fallen from the height. When a person falls from a height, the possibility of increase in blood pressure due to fear and shock, also cannot be ruled out. No document has been produced by the management that prior to death, the deceased was suffering from heart ailment or hypertension. Therefore, it cannot be contended that the deceased was suffering from the ailment, and hence the death was natural. Even taking it for granted that the deceased was suffering from the above ailment, considering the duties of a night watchman, who has to go around the factory premises, in the night hours, the likelihood of acceleration of any existing disease, cannot be ruled out. In the case on hand the deceased was 60 years and certainly, the age will have an impact, on the nature of work also.
21. On the aspect of an employment injury and the liability on the Company to pay compensation, let me consider some of the decisions.
(a) In Laxmibai v. Chairman and Trustees, Bombay Port Trust [1954 - I L.L.J. 614], the Bombay Port Trust had employed a night watchman at its pumping station where a process was carried on for pumping water by more than ten persons. One night, when the watchman was on duty as usual, he complained of plain in his chest and he was asked to lie down. His condition deteriorated and he died after a few hours. The medical evidence showed that the deceased was suffering from heart disease and that the death was brought about by the strain caused upon his heart, by the particular work that he was doing, viz., having to stand on his legs and having to move about as a watchman. The question posed before the Court was whether the deceased died of injury by an accident arising out of and in the course of employment. The High Court of Bombay held that he died of an injury by an accident falling within the scope of S. 3 of the Act. The Learned Chief Justice, who delivered the judgment for the Bench observed that if the workman died as a natural result of the decease from which he was suffering, then it could not be said that his death was caused out of his employment. If a workman was suffering from a particular disease and as a result of wear and tear of his employment he dies of that disease, no liability would be fixed upon the employees. But if the employment is a contributory cause, or if the employment has accelerated his death, or if it would be said that death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could then be said that death arose out of the employment of the deceased.
(b) In Bai Shakri vs New Manekchowk Mills Company Ltd. reported in 1962 (4) FLR 369 : (1961) GLR 23 : (1961) ILLJ 585 Guj, the Gujarat High Court held that
10. ..... Once it is found that the work which he has been doing is to be within his employment, the question of negligence, great or small on his part is irrelevant. Once it is established that workman is doing an act which is within the scope of his employment though in a way which is negligent in any degree and is injured by risk incurred only by that way of doing it, he is entitled to compensation per Lord Atkin in Haris v. Associated Portland Cement Manufacturers, Ltd. [1939 A.C. 71]. The determinate factor is whether the personal injury suffered by the workman arose out of and in the course of his employment.
11. Similarly, Lord Loreburn, L.C., in Clover Clavton and Company, Ltd. v. Hughes [1910 A.C. 242], remarked that an accident had been defined by the Houses of Lords in a previous decision as an unlooked for mishap or an untoward event which is not expected or designed. In that case, the workman was suffering from serious aneurism and was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. The County Court Judge found upon conflicting evidence that death was caused by strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal. The House of Lords held that there was evidence to support the finding that it was a case of personal injury by accidents arising out of and in the course of the employment within the Workmen's Compensation Act, 1906. At p. 245 of the report, the learned Lord Chancellor said that the workman died from the rupture of an aneurism, and that the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal. The aneurism was in such an advanced condition that it might have burst even while the man was asleep, and very slight exertion or strain would have been sufficient therefore to bring about a rupture. These were the findings of facts by the learned County Council Judge and these findings of facts the learned Lord Chancellor considered binding. The question then arose whether on these findings the learned trial Judge was entitled to regard the rupture as an "accident" within the meaning of the Act. The learned Lord Chancellor said that he was so entitled.
13. The question whether the work of a workman contributed to the personal injury or not becomes difficult of determination where it is a case of a heart attack. In such a case there are always two possibilities. A man with a bad heart might die in sleep or while he is actually resting. He may also die with the slightest strain arising out of even ordinary work, not involving any out of the ordinary physical strain. Such a case arose in Whittle v. Ebbw Vale Steel, Iron and Coal Company, Ltd. [1936 (2) A.E.L.R. 1221]. The deceased in that case was a grease boiler aged 61, and was at the time of the accident suffering from heart disease. Notwithstanding his doctor's advice, he insisted upon going to work. The evidence of the doctor was that he might have died at any moment and any strain, even stooping, was prejudicial to him. He was seen about his work at 5-20 a.m. and found, dead at 5-40 a.m. lying over a water tank, his face being covered with water. The post mortem examination showed that he died of heart disease. Upon these facts, the County Court Judge held that the work upon which the deceased was engaged contributed to and accelerated his death and made an award in favour of his dependents. The Appeal Court also held that the employment contributed to the death of the deceased. It will be seen that in his case the cause of death was not known with certainty since there was no evidence as to how the deceased met his death. The question therefore that arises in such a case is whether upon the known facts there is an equal degree of probability that death was due to the employment or whether that was a more probable conclusion in the view of a reasonable man. In an earlier case in Lancester v. Blockwell Colliery, Ltd., quoted by Slasser, L.J., in this decision, Lord Birkenhead, L.C., observed that if the facts which are proved give rise to conflicting inference of equal degrees of probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case, because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the arbitrator is justified in drawing an inference in his favour. In the case of Whittle v. Ebbw Vale Steel, Iron and Coal Company, Ltd. [1936 (2) A.E.L.R. 1221] (supra) there was clear medical evidence that the workman was not fit for a job involving continuous hard work; that he was a weak man by reason of his cardiac condition, that a man with a heart like that might break down under any physical strain and that the work described would have a deleterious effect upon him. What impressed the Appeal Court in that case was the fact that the workman was found dead within twenty minutes of the time when he would cease work and at the place where he would normally and the last of the four times he had to go to the tank. The tank where he was found dead was the very place where he would complete his work; the last process he had to do was to carry the grease to the tank to cool, and that was the place where he was found. In other words, the fact that the man died within twenty minutes from the time that he would cease his work that day and the fact that he was found dead at the place where he would go last before he ceased working that day were not only consistent with the conclusion but showed a greater probability that he died as a result of strain from his work, than his having died purely by the effect of the disease he was suffering from. Goddard, J. (as he then was), stressed this principle at p. 1235 of the report where he observed :
"the principle which I extract form the case of Patridge Jonas v. James [1933 A.C. 501] seems to me to be this : the House of Lords have decided that where a man in a diseased condition dies, and it is found that the disease and the work together contributed to his death, then his death results from accident within the meaning of the Act."
14. Similarly, in Hilton v. Billington & Newton, Ltd. [1936 (3) A.E.L.R. 292] it was held that the workman's dependents were entitled to compensation as the medical evidence clearly showed that it was the strain of the work that had contributed to or accelerated the death of the workman concerned. The facts there were that on 21 February, 1936, a cold day, a lorry driver strained himself by having to crank up his lorry at frequent intervals. On 23 February he was found to be suffering from influenza. He returned to work on 16 March having recovered from influenza. He died on 27 April. The evidence showed that the strain on 21 February was much more than the ordinary strain of work and that the lorry-driver was continuously ill from the day of the strain to the day of his death. The lorry-driver had been suffering from heart disease of long standing and he might have died from the effects of any sudden strain. One doctor said that death was due to the strain, another that excessive strain would have shortended his life, and the lorry-driver's own doctor stated that he had apparently well recovered "but heart irreguls - having impulse." The County Court Judge held that the medical evidence did not show that death had been caused by strain and dismissed the application for compensation. The Appeal Court held that the County Court Judge had misunderstood the evidence of the doctor, when he thought that it meant that the lorry-driver had recovered from the strain. It was held that the evidence meant that he had recovered from influenza but not from strain and the appeal was allowed and an award in favour of the workman's widow followed. This is yet another case where the medical evidence clearly showed that it was the strain on the heart which the workman was subjected to on 21 February, 1936 and which had contributed to his death.
(c) In United India Insurance Co. vs C.S. Gopalakrishnan And Another, reported in I (1989) ACC 524 : (1989) IILLJ 30 Ker, the Kerala High Court held that
10. ..... In Executive Engineer v. Janaki (1978) KLT 897, a Division Bench of this Court held thus (headnote):
Compensation can be awarded only if the accident arose in the course of and out of the employment of the workman and those conditions refer to the time when the accident happened and the casual connection between the employment and the death. If the workman actually got ill in the course of and on account of the employment and he died as a result of it, then there is no scope for controversy at all. The employer is bound to give compensation. He is also bound to give compensation in cases where the workman had an illness already but the employment furnished a contributory cause to his death or if the employment caused aggravation of the illness and accelerated his death. If it was a natural result of a disease which the workman already had that he died and his employment did not furnish a contributory cause to his death or, if the employment had really nothing to do with the aggravation of his disease and acceleration of his death, then it cannot be said that there was a casual connection between his employment and subsequent death.
11. In (1933) AC 481, the House of Lords have considered the question where a dock labourer left his home soon after 5 AM apparently in good health and felt unwell soon after reaching the dock where he was employed. At 6 AM he commenced work and was engaged with others in loading and unloading bags of china clay and sugar. At 8.30 AM he had breakfast. He resumed work at 9 AM. The deceased man was intended to move one of the bags on the platform. He was sitting on another bag at the time. He raised his hook above his head in order to lay hold on the bag he wished to shift. Then he fell forward and died. The man suffered from heart disease, but the nature of the disease was uncertain. In proceedings under Section 1 of the Workmen's Compensation Act, 1925, by the widow and sole dependent of the deceased workman, the county court judge held that there was no sufficient evidence of an accident arising out of or in the course of the man's employment; for that, any slight muscular movement might have caused his death at any time, and that there was nothing fortuitous about it. The House of Lords held that on the evidence it could not be doubted that the work the deceased man was doing contributed to his death; that when that was proved it established that the death was due to an accident arising out of and in the course of his employment, unless the contrary was shown, and that, in applying as the test, the question whether the death was to be expected at any time, the county court judge had misdirected himself.
12. Lord Warrington, concurring with the judgment, put the proposition in a very simple style on two broad grounds. His Lord ship said "All we have to determine, or all the learned county court judge had to determine, is whether the work in which the man was engaged this morning contributed to his death." Further, it is said that "In my opinion, that is not enough: he ought to have considered the whole of the events of that morning from the moment the man left home and went to his work and what happened during the continuance of that work." In McFarlane v. Hutton Brothers (Stevedores) Ltd. (1926) 96 LJKB 357 : 20 BWCC 222 and Muscroft v. Stewarts and Lloyds Ltd. (1928) 140 LT 64 : 21 BWCC 274, the case was one in which the workman suffered from heart disease and he died while he was working as a stevedore, unloading from a ship. The county court judge held that the death was due to disease and that it had not been caused due to sudden strain with the work he was proceeding in the ordinary way and, therefore, there had been no accident such as entitled the dependant for compensation. It has to be noted significantly that what the county court judge emphasised was the fact that there was no sudden strain of the work that the workman was carrying out in the ordinary way. But the Court of Appeal of England held that the county court judge had misdirected himself and that to establish an accident, it was not necessary to find a sudden or special strain and an award should be made in favour of the dependant. Lord Hanworth, M.R., at page 227, enunciated the law as follows:
...if there is an unexpected personal injury arising from some physiological condition set up in the course of the work, that may be described as an accident even although there is, at the moment, nothing unusual or particular which sets it up. That is the basis of the principle or authority which we have to apply.
19. A Full Bench of the Assam High Court in Assam Rlys. and Trading Co. v. Saraswati Devi (AIR) 1963 Assam 127, observed thus (at pages 133 and 134): Even in cases where a person has been suffering from heart disease, if the nature of the work has contributed to the deterioration of the heart and his death, the personal injury can be said to arise out of his employment. The case where the deceased was not suffering from any previous heart disease, is to my mind a stronger case and in such circumstances if he suddenly gets a heart attack while proceeding to perform his duty, the accident can be nothing but arising out of his employment.
22. Taking the evidence adduced in the case and the circumstances involved in the case, we feel that it has been established in the case that there was a casual connection between the death of the deceased and the work done in the course of his employment. We are of the opinion that from the evidence it is possible to infer that the strain of the work contributed to the fatal accident. Though the workman died due to heart failure, we are certain that it is not necessary that the workman was actually working at the time of his death and that the death must occur while he was working or had just ceased to work. Further, we find that the evidence shows a great probability which satisfies in a reasonable manner that the strenuous work contributed to the fatal accident. This finding of the Commissioner is not unreasonable which requires interference by this Court.
(d) In Thengachal Estate vs Reethammal, reported in 2 (1997) ACC 555, the Kerala High Court held that
9. Pleadings and the evidence in the case would clearly establish that Ramayya had some chest complaint and had suffered some chest pain in the early hours of the morning on 1.7.1991 even before he went for the work. Admittedly, Ramayya, at the time when he fell down in the garden with chest pain was doing work with a spade in discharge of his duties as a gardener employed by the appellant. It is also an admitted fact that on his way to the hospital, he died on 1.7.1991 itself. The post-mortem certificate would show the cause of death as asphyxia resulting from heart attack. These facts and circumstances, either admitted or proved by the oral and documentary evidence in the case, would in our view clearly establish that but for the strain due to the work he was doing the unexpected death would not have occurred. We say so because it is the appellant's own case in the written statement that Ramayya had chest complaint and had chest pain in the early hours of the morning of 1.7.1991 even before he went for the work. In the circumstances, it will only be reasonable to conclude that the strain even if it was a normal strain connected with the employment was the reason for the death. Even proceeding on the basis that Ramayya was suffering from chest ailment and was prone to heart attack, the circumstances in the case would clearly indicate that the strain due to the work he was doing was the cause which accelerated his death due to heart attack. As such, in our view, the circumstances established in this case are sufficient to establish the required causal connection between the death and the employment.
10. In United India Insurance Co. v. C.S. Copalakrishnan and Anr. 1989 (2) LLJ 30, this Court , while dealing with the requirement of causal connection between the employment and the death in order to bring the accident within Section 3 of the Act, has stated thus:
...It is not necessary that it should be established that the workman died as a result of exceptional strain or some exceptional work that he did on the day in question. If the nature of the work and the hours of work caused great strain to the employee and that strain caused the unexpected death, it can be said that the workman died as a result of an accident which has arisen in the course of his employment. Understanding the expression 'accident' as an 'unlooked for mishap' or as a 'untoward event' which is not expected or designed, we feel that in the state of health which Ramayya was having at the relevant time, the employment as a gardener has at least accelerated his death or that his death was due not only to the disease but the disease coupled with the employment and as such the death of Ramayya has arisen out of his employment. We find sufficient support in taking the above view in the lucid exposition of law made by Chagla, C.J. in Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust 1954-I-LLJ 614, which reads thus:
...But, if the employment is a contributory cause, or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased. We have no doubt in our mind that the work Ramayya was doing at the time when he suffered chest pain has been a contributory cause of the death if not the sole cause. Same is the view taken in the following decisions dealing with more or less similar facts and circumstances:
(1) Devshi Bhonji Kohnav v. Maty Bumo 1984-II-LLJ 70.
(2) Executive Engineer v. Janaki 1978 KLI 897.
(3) Assam Rlys. and Trading Co. v. Saraswati Devi AIR 1963 Assam 127, and (4) Zubeda Bano v.Maharashtra S.R.T. Corporation (1990) Lab. IC 1781.
In the Assam Railway's case, a Full Bench of the Assam High Court in detail considered all aspects about death caused as a result of heart disease of employees while they were in the course of their employment. After a thorough analysis it has been held thus;
Even in cases where a person has been suffering from heart disease, if the nature of the work has contributed to the deterioration of the heart and his death, the personal injury can be said to arise out of his employment. The case where the deceased was into suffering from any previous heart disease is to my mind a stronger case and in such circumstances if he suddenly gets a heart attack while proceeding to perform his duty, the accident can be nothing but arising out of his employment.
In Zubeda Bano v.Maharashtra S.R.T. Corporation (1990) Lab. IC 1781 , a Division Bench of the Bombay High Court has held thus:
Heart injury when brought about by a strain due to work in the employment and (not by natural wear and tear) is compensable though pre-existing condition may have been the contributory element and his is irrespective of the percentage of the part played by either of them, viz. the work and the condition.
(e) In Depot Manager, Andhra Pradesh State Transport Corporation, vs. Gurrapu Anjamma reported in I (2000) ACC 648: 2001 ACJ 1885 : 1999 (6) ALD 101, the Andhra Pradesh High Court held that, "4...... In support of his contentions, learned Counsel for the respondents relied upon the following decisions:
1. Thengackal Estate v. Reethammal, LLJ 1996 (II) 511;
2. National Insurance Company Ltd Bangalore v.Balawwa, 1994 (1) LLJ 433
3. United India Insurance Company Limited v. Yasodara Amma and another, LLJ 1990 (1) 387;
4. Abdul Sallar Rehmanbhai v. Julekhabi Rahiman Daryawardi and others, 1989 LLR 289;
5. United India Insurance v. C. S. Gopalakrishnan and another, LLJ 1989 (II) 30; and
6. Zubeda Bano and others v. S.R.T.C. ami others, LLJ 1991 (1) 66.
5. In Reethammal's case (supra) the Division Bench of Kerala High Court held thus: "Understanding the expression 'accident' as an 'unlocked for mishap' or as an 'untoward event' which is not expected or designed, we feel that in the state of health which Ramayya was having at the relevant time, the employment as a gardener has at least accelerated his death or that his death was due not only to the disease but the disease couple with the employment and as such the death of Rantayya has arisen out of his employment. We find sufficient support in taking the above view in the lucid exposition of law made by Chagla, CJ, in Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust, 1954-I-LLJ-614 which reads thus at page 616:
"... But, if the employment is a contributory cause or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased."
We have no doubt in our mind that the work Ramayya was doing at the time when he suffered chest pain has been a contributory cause of the death if not the sole cause....."
6. In Balawwa's case (supra) the Division Bench of Karnataka High Court held as follows:
"With regard to the first point, it is no doubt true that a claim for compensation for the death of an employee could be made under Section 3 read with Section 4 of the Workmen's Compensation Act only if the death of that employee has occurred due to an injury sustained by accident out of and in the course of his employment. By a series of Judicial pronouncements it is now well settled that the word 'accident' should be taken to mean a mishap or untoward event, not expected or designed; that if a person suffered heart attack and dies, it necessarily means that there has been an injury to the heart and that, that event being a mishap not expected or designed, is an accident and that, if a workman suffers heart attack out of and in the course of his employment, then the employer is liable to pay compensation under Section 3 read with Section 4 of the Workmen's Compensation Act (See: 1. M/s, Mackinon Mackenzie and Co (P) Ltd v. Rita Fernanda, 1969-II LLJ 812; Devshi Bhanji Khona v. Mary Burno, 1985-II-LLJ 70 (Kerala); United India Insurance Company Ltd v. Yashodhara Amma, 1990-I-LLJ 387 (Kerala); Zubeda liana v. Maharashtra State Road Transport Corporation, 1991-I-LLJ-66 (Bombay)." (Para 10)
7. In United India Insurance Company Limited v. Yasodara Amma and another, reported in LLJ 1990 (1) 387, in which a driver while driving the vehicle developed heart attack and later on died and in those circumstances, the Division Bench of Kerala High Court held as follows:
"From what we have quoted above, it is clear that the 'accident' found in subsection (1) of Section 3 has to be understood as meaning a mishap or untoward event not expected or designed. Certainly, in this case, the mishap-the untoward event happened in the course of the employment of the deceased at Perambra. As we said early, the symptoms of heart attack were seen and the deceased was taken to the hospital and finally he succumbed to death. Counsel submitted that these circumstances will not be sufficient to say that there was a personal injury which is one of the necessary desiderata of Section 3(1) of the Act. We do not agree. An almost similar case was considered by a Division Bench of this Court in Executive Engineer v. Janaki, 1978 KLT 897, Narayana Pillai, J., speaking for the Division Bench, observed thus:
"The principles applicable to cases of the instant type are by now well established. Compensation can be awarded only if the accident arose in the course of and out of the employment of the workman and those conditions refer to the time when the accident happened and the casual connection between the employment and the death. If the workman actually got ill in the course of and on account of the employment and he died as a result of it then there is no scope for a controversy at all."
6. Here, in this case, there is no scope for a controversy that the workman actually got ill in the course of his employment. Of course, his illness was not an external injury, but it was a serious injury to the heart. The strenuous driving of the vehicle from ICozhikode to Perambra accelerated his illness and that resulted in the death of the claimant's husband. We feel that the object of the section is to give protection to the helpless dependents of such workers and taking a pragmatic and meaningful construction of the section, we fell that the Commissioner has rightly applied the decision reported in Executive Engineer v. Janaki (supra). The decision rendered by the Commissioner is proper and legal. We see no error of law involved in this appeal. This appeal deserves to be dismissed and we do so. No order as to costs."
8. In Abdul Sallar Rehmanbhai v. Julekhabi Rahiman Daryawardi and others, reported in 1989 LLR 289, in which a Conductor died due to heart attack while he was sleeping in the bus. The Division Bench of Bombay High Court held that if any employee while on duty dies of heart attack, the employer will be liable for payment of compensation to his dependant. It is immaterial as to whether the employee was actually performing his duties or not.
9. The Division Bench of Kerala High Court in United India Insurance v. C. S. Gopalakrishnan and another, reported in LLJ 1989 (II) 30, after considering a case where the deceased bus conductor died of heart attack while sleeping the vehicle after strenuous work, bus crew had to sleep in the vehicle at the halting place where no shelter was provided either for the bus or for the crew and the bus conductor died of heart attack, held thus: (Para 9) "Though it is necessary that there should be a casual connection between the employment and the death in the unexpected way in order to bring the accident within Section 3, it is not necessary that it should be established that the workman died as a result of exceptional strain or some exceptional work that he did on the date in question. If the nature of the work and the hours of work caused great strain to the employee and that strain caused the unexpected death, it can be said that the workman died as a result of an accident which has arisen in the course of his employment."
After discussing various case laws in Para 17 of its judgment, it was further held thus:
"... But, considering the circumstances proved in the case, it is only natural and probable to infer that the workman was put to great strain and stress in discharging his duties. From the evidence discussed by the Commissioner, it is clear that the workman was asked to do work for more hours than what he was statutorily bound to do."
22. In the light of the above discussion and decisions, this Court is of the view that no perversity can be attached to the finding of the Commissioner for Workmen's Compensation that the death has occurred, arising out of and during the course of employment and due to the employment injury. Hence the finding is confirmed. There is no challenge to the quantum of compensation. The appeal is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
23. Consequent to the dismissal of the Civil Miscellaneous Appeal, 1st respondent/claimant is permitted to withdraw the award amount, by making proper applications.
29.01.2013 Index : Yes Internet : Yes ars To The Commissioner for Workmen Compensation, Deputy Commissioner of Labour, Coonoor.
S.MANIKUMAR, J.
ars C.M.A.No.3638 of 2012 29.01.2013