Orissa High Court
Director (T And M), D.N.K. Project vs Smt. D. Buchitalli on 24 December, 1986
Equivalent citations: I(1987)ACC339, (1989)ILLJ259ORI
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. This appeal is directed against the order of the Commissioner for Workmen's Compensation in Workmen's Compensation Case No. 103 of 1978, whereunder a sum of Rs. 19,200 has been awarded in favour of the respondent.
2. The respondent who is the sister as well as mother-in-law of the deceased had filed the application claiming to be a dependant under the Workmen's Compensation Act (hereinafter referred to as 'the Act') alleging therein that deceased M. Appal Konda Raju, on 23rd August 1978, while coming out of the factory premises after attending to his duty in the morning hours fell down at the main gate and on being removed to Ambaguda dispensary was declared to be dead. Before the Commissioner, the appellant though admitted that the deceased was working in the central workshop yet denied the allegation that he sustained some personal injury by accident arising out of and in course of his employment and, therefore, it was contended that no compensation is payable.
3. Three witnesses were examined on behalf of the claimant. The learned Commissioner did not rely on their evidence excepting relying on a part of their testimony that the deceased was suffering from a heart disease. But relying upon the evidence of the defence witnesses the Commissioner came to the conclusion that the deceased came out of the factory and had a heart attack on account of which he died and, therefore, it must be held that the deceased died of an accident arising out of and in course of his employment. Coming to the question whether the applicant was a dependant of the deceased under Section 2(1)(d) of the Act or not, the learned Commissioner came to the conclusion that the applicant was the widowed sister of the deceased and was staying with him. He, therefore, held that it must be held that she was a dependant of the deceased within the ambit of Section 2(1)(d) of the Act and accordingly the amount of compensation was awarded.
4. Sri A.B. Misra, the learned Counsel for the appellant, raises two contentions in this appeal. According to him under Section 3 of the Act, employer's liability for compensation arises if personal injury is caused to a workman by accident arising out of and in course of his employment. Since the deceased had a heart problem and there is no evidence to connect that the heart attack which he suffered on the fateful day has any connection with his course of employment in the factory, the employer would not be liable for any compenstion. It is further contended that under the Act, only a dependant is entitled to receive compensation and "dependant" has been defined in Section 2(1)(d) of the Act. The claimant who is either a widowed sister or the widowed mother-in-law of the deceased would not come within any of the categories enumerated in Section 2(1)(d) of the Act, and, therefore, is not entitled to claim any compensation.
5. Sri Ramdas, the learned Counsel for the respondent, on the other hand, contends that the deceased died as a result of strain caused upon his heart by the work he was discharging on the fateful day and he died immeditely after coming out of the factory and, therefore, it must be held that the death in question was caused by accident in course of the employment. The learned Counsel further urges that the claimant who is no other than a widowed sister and who lived with the deceased and was actually dependent on him. is the same person as an "unmarried sister" and would, therefore, be a "dependant" under Section 2(1)(d) of the Act and would accordingly be entitled to compensation. The rival contentions require careful examination.
6. Section 3(1) of the Act, as far as relevant, is extracted hereunder :
If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this chapter ;
Provided that.
The most important phrase in the aforesaid section is "arising out of and in course of employment." The said phrase is understood to mean that the injury has resulted during the course of employment from some risk incidental to the duties of the service, which unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In other words, there must be a causal relationship between the accident and the employment, i.e., if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed. The expression "arising out of and in course of " used in this section had been considered by a plethora of decisions which pinpoint various facets that arise for consideration before the Commissioner adjudicating a claim for compensation. It has been held in several cases that the said expression which is patterned on the lines of the English statute should not receive a rigid interpretation and this being a beneficial ligislation for the workers, should receive a liberal interpretation. It is now well settled that the expression "arising out of employment" means that during the course of the employment injury has resulted from some risk incidental to the duties of the service which, unless engaged in the duty owing to the master it is reasonable to believe the workman would not otherwise have suffered. The words "in the course of employment" mean, in the course of the work which the workman is employed to do and which is incidental to it. If the accident occured on account of a risk which is an incident of the employment, the claim must succeed. If the hazard is implicit in the employment itself, the victim of the same is covered by the Act. The Bombay High Court in the case of Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust 1954-I-LLJ-614, considered this aspect and held that the tests laid down by Lord Loreburn in the well-known decision of the House of Lords in the case of Clover, Clayton & Co. Ltd. v. Hughes 1910 A.C. 242, were applicable. It is profitable to extract that passage from the judgment of the House of Lords, which was approved by the Bombay High Court :
... In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment taken together.... Looking at it broadly, I say, and free from over-nice conjectures was it the disease that did it, or did the work he was doing help in any material degree.?
In another decision of the Bombay High Court, in the case of Bai Diva Kaluji v. Silver Cotton Mills, Ltd. 1956-I-L.L.J.-740, it has been held that if a workman suffering from heart disease after working for eight hours on a hot day in a mill dies, then it would be proper to hold that he died of accident arising out of and in course of his employment.
7. In the present case, no doubt, the evidence is that the deceased had a heart disease earlier, but on the fateful day, as the evidence disclose, the deceased worked for four hours inside the factory premises and while he was coming out of the factory, he profusely sweated and by the time he was taken to the hospital, he was found dead. The stress and strain of the four hours of work the deceased had must be taken to be an accelerating factor in giving the final blow on account of which the deceased died. In this connection, it is profitable to extract a portion of the evidence of the witness Sri B.S. Lal (D.W.I) for the employer. The witness was a mechanic in the central workshop and he stated :
He (the deceased) was on duty and after his duty he came out of the workshop after punching his card and he came outside the gate. Exibit 1 is that punch card. He developed chest pain outside the gate and he sat down outside the gate. Finding him in distress condition, I came running and fetched a jeep and took him to project hospital. The project hospital medical officer started treatment. He was profusely perspiring. The medical officer advised me and one Navin Chandra Behera to shift the deceased to Jeypore Government Hospital. Accordingly he shifted the deceased to Jeypore Government Hospital in a jeep. In the hospital the deceased was given an injection by the staff nurse. The deceased expired thereafter. Earlier, the deceased never complained about his chest pain....
The aforesaid evidence leads to the only irresistible conclusion that the deceased died of heart failure which had resulted on account of the severe stress and strain inside the factory premises and, therefore, the provisions of Section 3(1) must be held to be attracted in the present case. In this view of the matter, the contention of Sri A.B. Misra, the learned Counsel, must fail.
8. The next question for consideration is whether the claimant would be a "dependant" within the meaning of Section 2(1)(d) of the Act. According to Sri Misra, the claimant in the present case being the widowed sister of the deceased as well as the widowed mother-in-law (the deceased having married the daughter of the claimant) does not come within any of the categories enumerated in Section 2(1)(d) of the Act and consequently, the Commissioner had no jurisdiction to award compensation to her. Sri Ramdas, the learned Counsel for the claimant, contends that the claimant would come within the category "an unmarried sister" used in Section 2(1)(d)(ii)(d) of the Act. In support of the aforesaid contention, Sri Ramdas relies upon the decision of the Lahore High Court in the case of Mt. Moti Bai v. Agent, North-Western Railway (A.I.R.) 1932 Lah. 1. The definition of "dependant" at that point of time was:
'Dependant' has been defined to mean any of the following relatives of a deceased workman, namely a wife, husband, parent, minor son, unmarried daughter, married daughter who is a minor, minor brother or unmarried sister and includes the minor children of the deceased son of the workman, and where no parent of the workman is alive, the paternal grand-parent.
Refering to several English authorities on the point, the learned Judge of the Lahore High Court came to the conclusion :
Although the expression 'unmarried' ordinarily implies person who has never been married, it is capable of meaning unmarried at the time,' i.e., not having a husband or wife as the case may be, if the surrounding circumstances indicate that it was intended to be used in that sense.
In view of the definition of "dependant" which was then in force, the Lahore High Court was justified in coming to the aforesaid conclusion and giving a liberal interpretation to the word "dependant." But the definition, as it now stands, i.e., "an unmarried sister or a widowed sister if a minor" used in Section 2(1)(d)(iii)(d) cannot possibly permit a widowed sister even if major to come within the expression "an unmarried sister." Notwithstanding the fact that the Act is a beneficial legislation and should be construed liberally in favour of the workers, the language used is not susceptible of bringing in a widowed sister if a major within the ambit of Section 2(1)(d)(iii)(d) of the Act.
9. In the case of Mt. Dirji v. Smt. Goalin (A.I.R.) 1942 Pat. 33, a Bench of the Patna High Court came to hold that the expression "mother" or "parent" in Section 2(1)(d) does not include a "stepmother" or a "step- parent." To the same effect is the decision of the Calcutta High Court in the case of Manada Debi v. Bengal Bone Mill (A.I.R.) 1940 Cal.285, wherein the expression "widowed mother" was held not to include a "widowed step- mother." Consequently, it must be held that the claimant is not a dependant within the meaning of Section 2(1)(d) of the Act and, therefore, the Commissioner had no jurisdiction to award compensation in her favour.
10. In the result, therefore, the order of the Commissioner is set aside and this appeal is allowed, but in the circumstances, there will be no order as to costs.