Madras High Court
National Insurance Co. Ltd vs Pappathi on 22 April, 2014
Author: S.Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 22.04.2014 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.No.1383 of 2014 and M.P.No.1 of 2014 National Insurance Co. Ltd., Namakkal ... Appellant Vs. 1.Pappathi 2.Sellammal 3.Jeyanthi 4.Jayasudha 5.Jyothi 6.P.Elayappan Respondents The Civil Miscellaneous Appeal is filed under Section 30 of the Workmen's Compensation Act, 1923 against the award dated 07.07.2004 made in W.C.No.470 of 2002 on the file of the Deputy Commissioner of Labour-cum-Commissioner for Workmen's Compensation, Salem. For Appellant : Mr.S.Arun Kumar JUDGMENT
A Heavy vehicle driver of a trailor lorry bearing Regn.No.HR38 A 5454 insured with the National Insurance Company Limited, Namakkal died on his wheels. Impleading the owner of the vehicle and its insurer, legal representatives of the deceased filed W.C.No.470 of 2002 on the file of Deputy Commissioner of Labour and Commissioner for Workmen's Compensation, Salem. The owner of the vehicle remained exparte. The insurance company opposed the claim on the ground that mere travelling in a lorry would not give any stress or strain and therefore, the alleged injury, would not come within the purview of 'employment injury', warranting the insurance company to pay compensation.
2. However, on analysis of oral and documentary evidence, more particularly, the FIR, as to the manner of accident and following the decisions in United India Insurance Company Limited Vs. Yasodhammal, reported in 1991 (1) LLJ 387 (High Court of Kerala), in National Insurance Company Vs. Palava, reported in 1994(1) LLJ 433 and United India Insurance Company Limited Vs. Susheela, reported in 2004 LLR 425 (Karnataka High Court) and in Lurek Municipality Vs. Raiben Kamanlal, reported in 1993 (III) LLJ (Supp) 90, the claims tribunal held that the National Insurance Company Limited, the appellant herein / insurer of the lorry bearing Regn.No.HR 38A 5454, is liable to pay compensation.
3. Though, the said finding fastening liability has been questioned by the company on the very same grounds, this Court is not inclined to accept the same. Ex.A1, First Information Report reads as follows:
FIR 68 date 22-8-2001 Addanki P.S. Prakasam District registered u/s.174 Cr.PC (Death cause not known) Date of offence 22-8-2001 wednesday Time From 6 A.M. Information received at the Police Station at 11.00 A.M. Direct and distance from Police Station = km. from South Place of occurrence Rangarao Hospital on the Thar Road Addanki Name of the complainant: P.Thangaraj S/o.Perianna Govender Dater of Birth: 1931 Occupation : Lorry Driver Address: Bodinaickkanpatty, Namakkal (Taluk & District) Tamil Nadu State Name of the deceased: Kandasamy S/o.Vaiyapuri Lorry No.: HR 38A/5454, Bodinaickkenpatty, Namakkal T.K. District, Tamilnadu.
On 22.08.2001 at 11.00 Hrs., one P.Thangaraj S/o.Perianna Gounder Tamilnadu State came to Addanki Police Station and gave a while paper statement which run as follows:
Statement P.Thangaraj, S/o. Periyanna Gounder, aged 50 years Caste by Gounder, Bodinaickkanpatty T.K. and D.T. Tamilnadu State recorded on 22.08.2001 at 11.00 Hrs. driver of lorry NO.HR38A5454 since 13 years. I along with second driver V.Kandasamy, Ravi took the lorry on 11.08.2001 from Trichy of Tamilnadu State, loaded with machinery went to Raichur of Karnataka State and unloaded the machinery and from there we went to Hyderabad with empty lorry and there were loaded Cement big pipes started to Kumbakonam at 9.00 AM on 21.08.2001. Today, I drove the lorry in the early hours 3.00 AM at a distance of 30 Km. Addanki near adda road (cross road) our second driver Kandasamy took up driving, I light down in the lorry. Today on 22.08.2001 at 6.00AM, reached opposite the Dr.Rangarao Hospital at Addanki by the time our driver Kandasamy got heart pain and fell on the steering and cleaner of the lorry Ravi observing the same applied brakes and woke me up when I saw Kandasamy, leaning on the steering. I together with the cleaner laid Kandasamy on the cabin sheet and found Kandasamy dead we got Kandasamy treated by giving medicine and injunction, we came to know died cardiac arrest then we took dead body of Kandasamy to Government Hospital, Addanki and placed there, now I came to Police Station to give report I told the police what all happened the police people read over the contents whatever I told is recorded in the statement since I dont know writing 'Telegu'. I you recorded as I informed you in 'Telugu' signed by Thangaraj, 22-8-2002. I recorded the Statement and read over to the deponent and admitted by him to he correct. Signed B.V.Ramarao S.I. of Police, Addanki'
4. Before adverting to the facts of this case, this Court deems it fit to extract certain provisions of the beneficial Legislation, Workmen's Compensation Act (Act 8 of 1923). Section 3(1) of the Act deals with the employer's liability for compensation and reads as follows:
"(1) 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 employer shall not be so liable - (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
(b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to -
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or
(iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen."
5. In Regional Director, ESI Corporation Vs. Francis De Costa, reported in AIR 1997 SC 432 : (1996) 6 SCC 1, the Supreme Court, at paragraph Nos.5 to 29 held that an employee/ the legal representatives, in order to succeed in the claim will have to prove that the injury that the Workman suffered, arose out of and was in the course of employment. The conditions set out in Section 3 of the Act have to be fulfilled before the employee/the legal representatives could claim any benefit under the Act.
6. In Management, Hindustan Aeronautics Ltd., Vs. M.S.Bhagya, reported in 1999(4) LLN 303, the Karnataka High Court, at Para 5 of the judgment held that the burden is cast on the claimant to establish that there must be a causal connection between the death of the workman and his employment. The Court further held that there must be evidence on record to establish that the workman died on account of the work, he was carrying on and if the death had taken in the normal course of way, automatically, it goes to show that there was no connection between his death and employment.
7. In State of Madhya Pradesh v. Ram Lakhan Lodhi, reported in 2000(1) LLN 580, following a judgment in Sourashtra Salt Manufacturing Company Vs. Bai Vahu Raja [AIR 1959 SC 881] and Regional Director, ESI Corporation Vs. Francis De Costa [(1996) 6 SCC 1], a Division Bench of the Madhya Pradesh High Court has held that there must be a causal connection between the accident and employment.
8. In the New India Assurance Co. Ltd., Vs. Sarasu and others, reported in 2005 (3) MLJ 146, the respondents 1 to 3 therein, made a claim for compensation under Section 3 of the Workmen's Compensation Act, 1923 for the death of a workman, who died in an accident which arose in the course of employment. He was a heavy vehicle driver and was on duty as a co-driver. He received massive heart attack. He was taken to a Government hospital, where, he was pronounced dead by the duty doctor. The appellant Insurance Company, resisted the claim on the ground that it is for the claimants to prove that the deceased Workman died during and in the course of employment. On the basis of materials available on record, the Commissioner for Workmen's Compensation, found that the workman died on account of heart attack, which occurred during the course of his employment while he was working as a driver.
9. The appellant Insurance Company therein, challenged the verdict on the following substantial questions of law.
"1. Whether the death is contracted in the course of and arising out of employment under Section 3 of the Workmen's Compensation Act?
3. Whether the stress or strain of the job undertaken in the course of employment was the reason for development of the decease in connection with the employment according to Section 3 of the W.C. Act?
4. Whether the stress or strain has aggravated the disease and falls under Sec. 3 of the W.C.Act?
5. Whether the disease and the resultant death was connected with the employment?
6. Whether the disease is the wear and tear of his employment?
7. Whether the employment contributes to the course of acceleration of death and that the death is due not only to the disease but the disease coupled with employment?"
10. However, learned counsel for the appellant therein, restricted his arguments with reference to the question whether the Deputy Commissioner of Labour, Salem was justified in coming to the conclusion that the driver died of heart attack during the course and arising out of employment and that the said condition would not fall under the ambit of employment injury, resulting in death. Testing the correctness, this Court, at para No.6, held as follows:
"On a perusal of Section 3 of the Workmen's Compensation Act, we find that the word "accident" employed in Section 3 of the Act must be interpreted as any untoward incident or any unexpected accident taking place during the course of employment. As noted earlier, the Commissioner has recorded a finding that the workman developed severe chest pain while he was discharging his duty and having been informed of the same, the co-driver rushed him to the hospital, where he was pronounced dead. The said finding recorded by the Deputy Commissioner of Labour, Salem is purely a question of fact. We do not find any error in the said finding recorded by the authority, which calls for any interference by us in this appeal in exercise of our power under Section 30 of the Act. Therefore, we will have to proceed on the basis that the workman died on account of heart attack suffered by him in the course of his employment."
11. Further, considering the question as to whether, heart attack suffered by the deceased would be considered as a personal injury suffered by a workman, on account of and in the course of employment, a learned judge of this Court, after referring to Section 3 (1) of the Act, held as follows:
"From a reading of Section 3(1) of the Act, it would emerge that an employer is liable to pay compensation in accordance with the provisions of the Act, to a workman if such workman suffers from personal injury by an accident arising out of and in the course of employment. Therefore, the question is, what should be the attached or given to the words "personal injury caused to a workman by an accident"
12. In the judgment cited supra, this Court has also considered a similar issue, which came up for consideration before the Division Bench of Karnataka High Court in The Divisional Controller, North Vs. Sangamma And Ors, reported in 2005 ACJ 455, wherein the Hon'ble Division Bench held as follows:
"Therefore, if a workman suffers from a personal injury unexpectedly or suddenly and such personal injury suffered by the workman can be attributed to the work undertaken by the workman or has some connection to the nature of duties discharged by a workman, such an injury suffered can be treated as a result of and in the course of his employment."
13. In Jyothi Ademma Vs. Plant Engineer, reported in 2006 (4) MLJ 154 (SC): 2006 (5) SCC 513, the Supreme Court, at Paragraph No.6 of the judgment held as follows:
"6. Under Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable."
14. In Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and Another, reported in AIR 2007 SC 248 : 2007 (7) MLJ 615, the Supreme Court affirmed the legal principles enunciated in the leading case of Francis De Costa's and set out the principles of law to be applied in the matter of compensation under Workmen's Compensation Act. In the above reported judgment, a cleaner of a vehicle, who was travelling in it, suddenly developed chest pain and was admitted to a Government Hospital. Inspite of intensive treatment, he died in the hospital. Mother of the deceased filed a claim petition under the Workmen's Compensation Act, before the Commissioner for Workmen's Compensation. The only evidence which was brought on record by way of deposition of the mother of the deceased was that her son died while working in the vehicle of the Respondent No.1 and due to the strain of work, he died. The driver of the vehicle deposed that the deceased, while getting down from the said vehicle, got pain in the chest and was taken to the hospital. The Doctor certified that the cleaner died due to cardiac attack. The Insurance Company raised plea of collusion between the employer and the mother of the employee. The Commissioner of Workmen's Compensation passed an award in favour of the claimant. On appeal, the High Court opined that the findings of the Commissioner for Workmen's Compensation were perverse and inconsistent with the material on record. On further appeal, the Supreme Court, upon consideration of various decisions and in particular, the leading case reported in Regional Director, ESI Corporation and another v. Francis D.Costa and another reported in 1996 (6) SCC 1, formulated the following guidelines in the matter of a claim, under the Workmen's Compensation.
15. There are a large number of English and American decisions, some of which have been taken note of in ESI Corporation (supra), in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:
"(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.
(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.
(3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case.
22. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed.
23. There is a crucial link between the causal connections of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction.
24. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred.
25. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:
1. stress and strain arising during the course of employment, 2. nature of employment, and 3. injury aggravated due to stress and strain.
26. The deceased was travelling in a vehicle. The same by itself can not give rise to an inference that the job was strenuous.
27. Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf.
28. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefore can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor.
34. Only because the cause of death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting in injury.
36. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well-settled that for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question.
37. Section 30 of the said Act postulates an appeal directly to High Court if a substantial question of law is involved in the appeal.
38. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain........ there has to be an proximate nexus between cause of death and employment. A stray statement made by Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination.
39. This vital aspect of the matter was required to be considered by the High Court so as to arrive at a finding as to how the said accident has arose or not.
40. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record."
16. While considering, whether a finding recorded by the Commissioner under the Workmen's Compensation Act, based on appreciation of evidence that an employee, died out of heart attack, arising out of and in the course of employment could be challenged in an appeal under Section 30 of the Act, in National Insurance Co., Bhavani, Vs. A.Saroja and others reported in 2009 (1) MLJ 495, this Court considered a case, wherein the claimants were wife and daughters of the deceased, who was employed as a cleaner-cum-driver in a transport Company. While proceeding to Kerala, the lorry was stopped and the employee suffered a severe heart pain and vomited. He was rushed to hospital, where he was pronounced dead. The relationship of employee and employer was disputed. It was also submitted that death due to heart attack, was due to pre existing ailment or decease and it was not out of natural cause. The Commissioner for Workmen's Compensation Act, arrived at a conclusion that the death occurred during the course of employment. Assailing the award, employer preferred an appeal, and this Court, framed the following Substantial questions of law for consideration, "1. Has not the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour) Salem misdirected itself in law in assuming a jurisdiction which was not vested under the law in respect of the occurrence of the death which was not duly established as having taken place due to the employment injury and in the course of employment thereby mulcting the appellant- Insurance Company for payment of compensation?
2. Has not the Commissioner for Workmen's Compensation misdirected itself in law in entertaining the claim petition when there was nothing on record to show that the death was as a consequence of employment injury nor was it established that there was any nexus between the employment in relation to the nature of work in that the death had occurred only due to the course of travelling as a coolie and when it was also not established that the chest pain and the subsequent death due to the aftermath of strain in the work?"
17. After considering a catena of decisions and in particular, a decision of this Court in Oriental Insurance Company Vs. Nagaraj and others reported in 2008 (4) MLJ 58 : 2008 (2) CTC 407, at paragraph No.20, this Court in Bhavani's case, held as follows:
"20. .... Even an ordinary strain in given circumstances of the case would be enough to cause the injury or death which is found to be in the course of and out of employment, it has to be held that the claimant is entitled for the compensation. The claimant is expected in law to show that the workman suffered injury or death due to strain and stress drawn from the work which in particular circumstance was sufficient to cause injury or death and unlike in a criminal case it is enough to show the preponderance of probabilities which would form a premise that the claimants version is probable. It is not necessary to prove that the injury or death was caused by the stress and strain beyond any doubt but it must be shown and the materials brought before the court shall be, to the satisfaction of the Court."
On the facts and circumstances of the case in A.Saroja, reported in 2009 (1) MLJ 495, the learned Judge, at paragraph No.21, further held that, "21. Even though there is no plausible medical evidence to portray that the proximate cause for the death was due to the strain and stress, still the other circumstances found in this case show a casual connection between employment and death. There is nothing before this court to infer that there was an error apparent on the face of records so as to lead the Commissioner to commit the jurisdictional error while exercising his powers and the provisions of the Act."
18. In the light of the decisions stated supra, in particular, the New India Assurance Co. Ltd., Vs. Sarasu and others, reported in 2005 (3) MLJ 146, Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and Another, reported in AIR 2007 SC 248 : 2007 (7) MLJ 615 and National Insurance Co., Bhavani, Vs. A.Saroja and others reported in 2009 (1) MLJ 495, this Court is of the view that no substantial question of law is involved in this appeal. Hence, the Civil Miscellaneous Appeal is Dismissed. The respondents/claimants are permitted to withdraw the amount deposited with the Commissioner for Workmen Compensation Act (Act 8 of 2003) after furnishing necessary applications. No costs. Consequently, the connected Miscellaneous Petition is closed.
22.04.2014 Index:Yes Internet:Yes ars To
1. The Deputy Commissioner of Labour-cum-Commissioner for Workmen's Compensation, Salem
2. The Section Officer, VR Section, High Court, Madras.
S.MANIKUMAR, J ars C.M.A. No.1383 of 2014 22.04.2014