Karnataka High Court
The Divisional Controller vs Smt. Kiran And Ors on 23 December, 2020
Bench: S.Sunil Dutt Yadav, P.N.Desai
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR.JUSTICE P.N.DESAI
MFA No.201567/2017 (ECA)
BETWEEN:
THE DIVISIONAL CONTROLLER
N.E.K.R.T.C., SARIGE SADAN
STATION ROAD, GULBARGA
REPRESENTED BY
CHIEF LAW OFFICER
... APPELLANT
(BY SRI DEEPAK BARAD, ADVOCATE)
AND:
1. SMT. KIRAN W/O VIJAYKUMAR
AGE ABOUT 43 YEARS
OCC: HOUSEHOLD
2. SHEETAL D/O VIJAYKUMAR
AGE ABOUT 25 YEARS
OCC: STUDENT
2
3. VARSHA D/O VIJAYKUMAR
AGE ABOUT 22 YEARS
OCC: STUDENT
4. VISHAL S/O VIJAYKUMAR
AGE ABOUT 21 YEARS
OCC: STUDENT
ALL R/O H.NO.66-EWS, SHANTI NAGAR
GULBARGA
... RESPONDENTS
(BY SRI ANAND V. TURE, ADVOCATE FOR R1 TO R4;
SRI BABURAO S. KANNI, ADVOCATE FOR C/R1 TO R4)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF EMPLOYEES' COMPENSATION ACT, 1923,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
05.04.2017 PASSED BY THE II-ADDL. SENIOR CIVIL JUDGE &
COMMISSIONER FOR EMPLOYEES COMPENSATION AT
KALABURAGI IN ECA NO.65/2014.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, P.N.DESAI J., DELIVERED THE
FOLLOWING:-
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JUDGMENT
This appeal has been filed by the Divisional Controller, NEKRTC-Employer against the impugned Judgment and Order passed by the II-Addl. Senior Civil Judge & Commissioner for Employees Compensation, Kalaburagi dated 05.04.2017 in E.C.A.No.65/2014 whereby the Commissioner partly allowed the claim petition awarding compensation in a sum of Rs.21,98,090/- with interest at the rate of 12% per annum from 08.06.2010 till its realization.
2. The appellant was the respondent before the Commissioner for Employees Compensation (hereinafter referred to as the 'Commissioner' for short) and respondents were the petitioners before the 'Commissioner'. They are referred as petitioners and respondent as per their respective ranks before the 'Commissioner' for the sake of convenience in this judgment.
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3. The brief case of the petitioners before the 'Commissioner' was:
That deceased-Vijaykumar was employee under respondent-Transport Corporation. On 05.09.2012 while he was on duty and discharging his duties as a driver of bus bearing Reg.No.KA-32/F-1661 belonging to respondent when the said bus came near the University Campus at Kalaburagi, at about 4:45 pm, he suffered heart attack and died.
4. The petitioners being the wife and children of the said Vijayakumar, filed a petition before the 'Commissioner' contending that they are the legal heirs of the deceased- Vijayakumar and they are dependents on the income of the deceased. The respondent-Transport Corporation is the Employer. As per the case put-forth by the petitioners as the deceased died while discharging his duty as a driver belonging to respondent-Corporation due to heart attack, as a result of stress and strain caused on him, the petitioners approached respondent for compensation, but as the 5 Employer did not oblige they have filed petition before the 'Commissioner'.
5. The respondent-Corporation appeared and filed statement of objections wherein the respondent admitted that on 05.09.2012 the deceased-Vijayakumar was discharging duty as a driver of the bus belonging to respondent. The respondent also admitted that the bus while coming from Budda Vihar side near University Campus at Kalaburagi, driver-Vijayakumar sustained pain and the conductor shifted him to hospital and on the way he died. It is clearly admitted that due to "stress and strain" the deceased-Vijayakumar died while on duty. But respondent denied that there was any nexus between his death and employment. It is further contended that the death of deceased is a natural death and accordingly the respondent is not liable to pay compensation.
6. The 'Commissioner' on the basis of pleadings framed issues as under:
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1. Whether petitioners prove that the deceased-
Vijaykumar S/o Sabu who was the driver on the bus bearing Reg.No.KA-32/F-1661 of respondent while he was discharging his duties and coming from Buddha Vihar side towards Bus-Depot and in the way at about 4-45p.m. when the said bus came near Campus of University, all of sudden due to stress and strain caused to him, he was attacked with heart attack, the said incident caused during the course of his employment with respondent?
2. Whether the petitioners prove that the deceased was getting salary of Rs.18,262/- per month from the respondent Depot during the course of employment?
3. Whether the petitioners prove that they are the legal heirs of deceased Vijaykumar?
4. Whether the petitioners are entitled for compensation? If so, to what extent and from whom?
5. What order or Award?
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7. In order to prove their case, petitioner No.1 got examined herself as PW.1 and got marked seven documents as Exs.P.1 to P7 and closed their side. On behalf of respondent a Labour & Welfare Officer of NEKRTC, Kalaburagi Division No.2 by name Mallinath Pujari was examined as RW.1 and got marked one document i.e. attendance copy as Ex.R.1.
8. After hearing the arguments, the 'Commissioner' has held that the deceased died out of and in the course of employment, which is proved by the petitioners and by reference to the provisions of Section 4(1A) of the Employee's Compensation Act, 1923 (hereinafter referred shortly as the 'Act, 1923') awarded compensation of Rs.21,98,090/- with 12% interest per annum.
9. Aggrieved by the same, the respondent-Transport Corporation has preferred this appeal on two grounds:
a) The first aspect is as regards the quantum of award of Rs.21,98,090/- as a compensation;8
b) The second aspect is that, it cannot be stated that the death was due to accident in terms of Section 3 of the Act, 1923; and accordingly death due to heart attack cannot be a cause of action for awarding compensation.
10. Heard Sri Deepak V. Barad, learned counsel for the appellant and Sri Anand V. Ture, learned counsel for the respondents.
11. The learned counsel for the appellant-Transport Corporation argued that the death occurred due to heart attack and it is a beyond the control of anybody. The said heart attack does not fall within the definition of 'personal injury' or an 'accident' as mentioned under Section 3 of the Act, 1923. There is no evidence placed by the petitioners to show that there was a stress and strain while he was on duty. Only because death has taken place in course of employment will not amount to accident but the death must arise out of the accident. The accident must have direct nexus connected 9 with the employment and during course of employment. The petitioners have not proved the same. In support of his argument, the learned counsel relied upon decision reported in AIR 2007 SC 248 = (2007) 11 SCC 668 in case of Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali and Anr. The learned counsel for the appellant further argued that the award of Rs.21,98,090/- is not justifiable. With these main submissions, the learned counsel contended that the appellant-Corporation is not liable to pay the compensation. Hence, prayed to allow the appeal.
12. Against this the learned counsel for the respondents argued that the deceased was the driver of the bus. The very nature of work as a driver involves stress and strain. The court can take judicial notice of the nature of work and stress involved in such type of employment. Admittedly, the deceased died while he was driving the bus due to heart attack which is an accident and is an personal injury covered under the Act, 1923. The petitioner No.1 has 10 given evidence as PW.1 and produced documents in this regard. Regarding the salary of the deceased, it is not seriously disputed by the employee. They have not denied the relationship as employer and employee. The original salary records are with respondent only. The petitioners produced the copy of the salary certificate which is available in record. The learned counsel for the petitioners relied upon the decision of the Hon'ble Supreme Court in case of K.Sivaraman & Ors vs. P.Sathishkumar & Anr. reported in (2020) 4 SCC 594; and another decision of the Hon'ble Supreme Court in case of Poonam Devi and Ors. vs Oriental Insurance Co. Ltd. reported in (2020) 4 SCC 55; two decisions of Division Bench of this Court in case of M/s National Insurance Co. Ltd. vs. Zaheeda Banu and Ors reported in 2011(1) KarLJ 174; The Divisional Controller, NEKRTC, Bellary vs. Marembee and Others reported in ILR 2003 KAR 4221. With these main arguments the learned counsel for the petitioners contended that there is no 11 justification to interfere with the order of the 'Commissioner' and prayed to dismiss the appeal.
13. Having heard the learned counsel for the parties and perused the petition and appeal papers, we are not inclined to interfere in the matter for the following reasons:
14. Regarding the first contention of the respondent it is to be noticed that the claimants have produced a photocopy of the salary certificate of the deceased-Vijayakumar, the same is on the letterhead of the respondent-Transport Corporation and has not been denied at any point of time. The 'Commissioner' has also recorded the finding to the effect that the contents of the said salary certificate has not been denied. It is also to be noted that the employer if at all was not in agreement with the contents of the salary certificate which was in possession of all relevant documents relating to the employee, ought to have submitted such documents. The finding as regards the wages not being seriously in dispute. Further as the quantum is arrived at, as per the structured 12 formula provided under Section 4 of the Act, 1923, in the absence of any ambiguity about the salary of deceased, the finding as regards quantum does not call for any interference nor it cannot be said that any substantial question of law arises to admit the appeal as regards the quantum.
15. Insofar as the second contention of the appellant that the death due to heart attack cannot be construed to be an accident "arising out of" and "in the course of employment"
is not a "personal injury" as per Section 3 of the Act, 1923, the following substantial question of law is framed as under:
"Whether the finding of the 'Commissioner' holding that the death of the employee was by accident arising out of the course of the employment is in accordance with Section 3 of the Act 1923? "
16. The relationship of employer and employee is not disputed. The death of deceased-Vijayakumar due to heart attack while he was on duty as a driver of bus belonging to respondent is not disputed. The only contention urged by the 13 appellant is that the said death due to heart attack cannot be construed as a personal injury arising out of and during the course of employment as provided under Section 3 of the Act 1923.
17. In order to appreciate the rival contentions it is useful to refer the Section 3 of the Act, 1923, which reads as under-
Section 3. Employer's liability for compensation.-
(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 3 three] days;
(b) in respect of any 4 injury, not resulting in death, 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 wilful disobedience of the workman to an order expressly given, or to a rule 14 expressly framed, for the purpose of securing the safety of workmen, or
(iii) the wilful 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.
18. Section 3 of the Act, 1923 provides for Employer's liability in cases of "personal injury" provided a) the workman must have sustained personal injury; b) the personal injury must have been caused by an accident; c) the accident may have arisen out of and in the course of employment and d) the personal injury caused to the workman must have resulted either in the total or partial disablement of the workman for a period exceeding three days or it must have resulted in the death of the workman. The expression "personal injury" has not been defined. It need not involve physical trauma, but may include such injuries as disease, sunstroke, nervous collapse, traumatic neurosis, hysterical paralysis and neurasthenia. It may be external, or may be internal. In the case of chest pain arising during duty after remaining busy in strenuous work for many hours may 15 be termed as an accidental internal injury. The word 'personal injury' being wider than bodily injury also includes all physical injuries which may be caused by an accident arising out of and in the course of employment. It also includes all mental stress and strains or mental tension or mental illness or psychological diseases, provided such mental conditions have arisen by accidents arising out of and in the course of employment. Similarly, a death from heat stroke has also been held to be personal injury entitling the dependant to compensation. It may also include nervous shock caused by an excitement and alarm resulting from a fatal accident to a fellow workman.
19. The word, "accident" has not been defined in the statute but the judgment law by this time has adequately defined it. 'Accident' should be understood in the popular and ordinary sense as an unlooked for mishap or an untoward event which is not expected or designed. For the purpose of law relating to the compensation for personal injuries 16 sustained by workman and the employer's liability in that behalf includes any injury, which is not designed by the workman himself, and it is of no consequence that the injury was designed and intended by the person inflicting the same.
20. The Hon'ble Supreme Court and the High Courts have elaborated the words 'accident', 'personal injury' 'arising out of' and 'during the course of employment' in several land mark judgments and dealt with the object of grant of compensation under the Workmen's Compensation Act now Employee's Compensation Act, 1923. The circumstances under which the heart attack to a driver/employee while driving a bus is an accident which can be held as personal injury arising out of and in the course of employment makes the employer liable to pay compensation.
21. The Co-ordinate Bench of this Court in a decision reported in 1993 (2) KLJ 406 in case of National Insurance Company Ltd. Bangalore vs. Balawwa and Others considered how the word 'accident' should be taken to a mean 17 a mishap or untoward event and not expected or designed; that if a person suffers heart attack and dies, it necessarily means that, there has been an injury to the heart. At para-10 it is held that -
"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 had occurred due to an injury sustained by accident out of and in the course of his employment. By 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 a mean a mishap or untoward event, not expected or designed; that if a person suffers heart attack and dies, it necessarily means that, there has been an injury to the heart and that, event being a mishap not expected or designed, is an accident and that if a workman suffers heart attack out of an 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."
22. The learned Single Judge of this Court in a decision reported in 2004 (3) LLN 732 in case of United India Insurance Co. Ltd. Vs. Smt. Susheela referred the 18 decision of the Hon'ble Supreme Court in case of General Manager, B.E.S.T. Undertaking, Bombay vs. Smt. Agnes reported in AIR 1964 SC 193; and judgment of this Court in National Insurance Company Ltd. Bangalore vs. Balawwa and Others reported in 1993 (2) KLJ 406 considered Section 3(1) of the Workmen's Compensation Act, with reference to the expression 'accident 'arising out of' and 'in the course of employment'. Para-10 of the judgment reads as under:
10. The expression "arising out of and in the course of the employment" fell for consideration in several judicial pronouncements. In Mrs. Agnes's case, supra, the Hon'ble Supreme Court was pleased to interpret the scope of Section 3(1) of the Workmen's Compensation Act and came to the conclusion that:
"The Court of appeal in Jenkins v. Elder Dempster Lines Limited, (1953)2 All ER 1133 once again construed the expression "arising out of and in the course of employment".
There, the ship in which the deceased was employed moored against the harbour mole of Las Palmas. At the landward end of the mole was a gateway where police were stationed for the purpose, ostensibly, of keeping unauthorised persons off the mole, but all kinds of people were allowed there and entry to it was practically 19 unrestricted. Shortly after the ship moored, the deceased and other members of the crew went ashore for a short while. When they were returning to the ship, the policemen at the gate of the mole asked them which was their ship and allowed them to enter the mole. In the darkness, the deceased fell over the side of the mole and was drowned. In a claim by the widow against the employers for compensation under the Workmen's Compensation Act, her claim was not allowed. Sir Raymond Evershed M.R., posed the question thus: Was the workman at the relevant time acting in the scope of his employment?" and answered:
"........ the explanation, it is true, which the cases have added will entitle him to say that he was if his presence at the point where he met with the accident is so related to his employment as to lead to the conclusion that he was acting within its scope".
This decision lays down a wider test, namely, that there should be a nexus between the accident and the employment. This Court has considered the scope of the section in Saurashtra Salt Manufacturing Company v. Bai Valu Raja, reported in AIR 1958 SC 881 and accepted the doctrine of "notional extension" of the employer's premises in the context of an accident to an employee. Imam, J., delivering the judgment of the Court laid down the law thus:
"As a rule the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and 20 from the place of employment being excluded. It is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman keeping in view at all times this theory of notional extension" ". (emphasis supplied) It is also seen that a Division Bench of this Court in the case of Smt. Balawwa, supra, at para 10, has held thus:
"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 suffers 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 21 his employment, then the employer is liable to pay compensation under Section 3 read with Section 4 of the Workmen's Compensation Act".
Keeping these principles in mind the case of the appellant will have to be examined.
23. Further another Co-ordinate Bench of this Court in a decision reported in 2005 (2) L.L.N. 776 in case of Divisional Controller, NEKRTC, Gulbarga vs. Sangamma and Others considered the liability of employer on account of heart attack suffered by employee of Transport Corporation and the meaning of words "injury" and "accident" under Section 3(1) of the Act, 1923. At para 6, 7 to 9 it is held as under:
6. As noticed by us earlier, the Commissioner has recorded a finding that the workman developed severe chest pain while he was discharging his duty as a Conductor in the vehicle belonging to the appellant on the route Tuljapur to Chittapur; and having been informed of the same to the driver of the bus, the driver stopped the bus at Naladurg Bus stand and the workman was admitted to Ashwini Hospital at Naladurga and in the hospital he died at around 6.55 a.m. The said finding recorded by the Commissioner is purely a question of fact. We do not find any error in the said finding recorded by the Commissioner, which calls for interference by 22 us in this appeal, in exercise of our power under Section 30 of the Act. Further, the said finding also is not challenged by the learned Counsel for the appellant. 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.
7. In the light of our conclusion that the workman had died on account of heart-attack suffered by him in the course of the employment, the only other question that would arise for consideration is, whether the heart attack suffered by a conductor of a transport vehicle in the course of his employment, can be termed as a personal injury suffered by a workman on account of accident arising out of and in the course of his employment? Before we proceed to consider the said question, it is useful to refer to Section 3(1) of the Act, which reads as hereunder.
"Section 3(1): If the 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."
From the reading of Section 3(1) of the Act what would emerge is that an employer is liable to pay compensation, in accordance with the provisions of the Act, to a workman if such workman suffers personal injury by an accident arising out of and in the course of his employment. Therefore the question is, what should be the meaning attached or given to the words "personal injury caused to a workman by accident"? According to the chambers' 20th Century Dictionary 'injury' means damage, hurt, impairment, annoyance. Therefore, in our 23 considered view the development of just pain or for that matter any other pain, would be an injury caused to the person. However, to make an employer liable to pay compensation for such an injury suffered by the workman, such an injury must have been caused to the workman on account of an accident arising out of and in the course of his employment. Therefore, if on account of chest pain or heart - attack, if an workman dies, the question would be whether such an event can be construed as an accident? If such an event can be construed as an accident, the employer would be liable to pay the compensation to the legal representatives of the workman under the Act. No doubt, as noticed by us earlier, it is the contention of the learned Counsel for the appellant that the development of chest pain or heart attack is a natural event which every human being would be prone to and merely because a workman like the conductor in a bus suffers chest pain or heart attack in the course of employment cannot be construed as an accident arising out of and in the course of employment. We are unable to accede to the said contention. The reasons are more than one. Firstly, we will have to keep in mind the context under which the word "accident" is employed in Section 3(1) of the Act. There cannot be any dispute that the Act is a beneficial legislation intended to protect the interest of the workman who generally belong to the less fortunate section of the society. Section 3 of the Act provides for payment of compensation in accordance with the provisions of the Act, if any personal injury is caused to a workman by an accident arising out of and in the course of his employment The object of Section 3(1) of the Act is to ensure financial assistance and to relieve the workman and his family members of the hardship 24 they may suffer on account of a personal injury that may be caused to a workman in an accident arising out of and in the course of his employment. It is well settled that while interpreting the beneficial legislation, in the absence of the language employed in the legislation being clear and unambiguous and does not give scope for views more than one, the courts will have to interpret the legislation or the provisions of the legislation keeping in mind the object and purpose of legislation. If it is so understood, it is not possible to give a restricted meaning to the word accident' under Section 3(1) of the Act so as to exclude the death of a workman in the course of employment on account of heart attack. The word 'accident' in the context in which it is employed has to be given a very wide and liberal meaning to make Section 3 of the Act purposeful and meaningful, so that, the object of the legislation is achieved. If it is so done, the word 'accident' can be understood in the context as an event or incident taking place unexpectedly or suddenly. In fact, this view of ours gets support from the meaning given to the word 'accident' in Chambers' 21st Century Dictionary wherein the meaning of the word 'accident' has been stated as:
"an unexpected event which causes damage or harm; something which happens without planning or intention; chance managed it by accident."
8. Therefore, if a workman suffers 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 the duties discharged by a workman, such an injury suffered can be treated as a result of the accident arising out of and in the 25 course of the employment. In the instant case, the evidence on record shows that the workman was working at Chittapur depot of the appellant and he had boarded the bus in the early hours of the day to carryout his duties as Conductor. It is on record that after the bus proceeded around 40 kilometers, the workman developed chest pain and when the same was informed to the driver of the bus, the driver stopped the bus at Naladurg Bus stand and admitted the workman to Ashwini Hospital. Among several causes for chest pain, one of the causes is strain and stress of work. Under these circumstances, the nature of work one undertakes, whether it be carrying a load on head, or driving a vehicle or working as a conductor or carrying out more strenuous work, where physical exercise is involved, have strain and stress of the work on the individual. Further, for development of chest pain or heart attack, physical exercise or physical strain alone is not the cause; and even the mental strain also could be a cause for chest pain or advancing the heart-attack Therefore, even assuming that the workman had the block of the arteries of his heart, the free flow of blood to the heart could be affected on account of the strain of work. Therefore, since admittedly, the workman at the time when he developed chest pain was conducting the bus as its conductor, it is reasonable to infer that he died on account of personal injury suffered by him in an accident arising out of and in the course of his employment. We would also like to point out that taking a view, different from the one we have expressed above, would be defeating the very object of the legislation. As noticed by us earlier, the Act is a beneficial legislation intended to give some security to the workman. We are of the considered view that the provisions of the Act is in 26 the nature of a 'Mini Insurance Scheme' to the workmen. Therefore, the liability of the employer under the Act is conceptually quite different from the liability under tort. Therefore, the interpretation to the provisions of the Act calls for a broad and liberal construction, lest its evident object is defeated. It is necessary to point out that while death is a natural event of life, the cause like heart attack or any other ailment cannot be considered as natural event that would take place, as contended by learned Counsel for the Appellant. The strain of the work may be mental or physical; depending upon the nature of the work one takes up and the physical and mental condition of an individual, a person may suffer heart - attack. Heart -attack suffered, sometimes, if immediate and proper medical care is provided, may save the life of the patient. In this case the workman was on duty and was admitted to an moffisil hospital. It is not the case of the appellant that the best medical treatment was made available to the workman when he complained of chest - pain.
9. In this connection, it is useful to refer to the decision of the Supreme Court in the case of Mackkinnoa Mackenxie & Co. (Private) Ltd. v. Rita Fernandex (Smt.), reported in 1969 - II L.L.J. 812 The Court while taking the view that if a workman dies a natural result of the disease from which he was suffering or while suffering from a particular disease, he dies of that disease as a result of wear and tear of his employment and no liability could be fixed upon to the employer, held that if the employment is a contributory cause or has accelerated the death or if the death was due not only to the disease but the disease coupled with the employment, it was held said that the death has taken place out of employment and the employer 27 would be liable. It is further observed in the said decision that even if a workman dies from a pre- existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident. The facts of the present case, set out by us above, would clearly show that the employment of the workman as a Conductor contributed or accelerated the death of the workman".
24. Further, the Hon'ble Supreme Court in a decision reported in 2018 (11) SCC 642 in case of Daya Kishan Joshi and Ors. Vs. Dynemech Systems Pvt. Ltd. considered meaning of the words "arising out of" and "in the course of employment" with reference to the Employee's Compensation Act (earlier Workmen's Compensation Act) referring to several previous decisions of the Hon'ble Supreme Court and English Courts held at para 10, 11, 13, 15, 16 and 17 as under:
10. English Courts have elaborated in great detail on the subject of arising out of employment while considering the matters arising out of The English Workmen's Compensation Act, 1897.
11. Buckley, LJ., in Pierce v. Provident Clothing and Supply Co. Ltd. [(1911) 1 KB 997], made the following observations:28
"The words 'out of' necessarily involve the idea that the accident arises out of a risk incidental to the employment. An accident arises out of the employment where it results from a risk incidental to the employment, as distinguished from a risk common to all mankind, although the risk incidental to the employment may include a risk common to all mankind."
13. The case of Andrew v. Failsworth Industrial Society [(1904) 2 K. B. 32], lays down that the accident need not be connected to the work, as long as the employee was in a position that arose out of the employment. Collins, M. R. observed as follows:
"Though [the accident] may not be connected with, or have any relation to, the work the man was doing, yet, if in point of fact the position in which the man was doing the work, and the place he must necessarily occupy whilst doing the work are a position and a place of danger which caused the accident, it may fairly be said that it arose out of the employment, not because of the work, but because of the position"
15. Indian Courts have also expounded upon the phrase 'arising out of and in the course of employment' in great detail.
In the case of B.E.S.T. Undertaking vs Agnes (AIR 1964 SC 193), this Court laid down as under:
"Under Section 3(1) of the Act the injury must be caused to the workman by an accident arising out of and in the course of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the 29 employment does not necessarily end when the "down tool" signal is given or when the workman leaves the actual workshop where he is working. There is a notional extension as both the entry and exit by time and space. The scope of such extension "must necessarily depend on the circumstances of a given case. An employment may end or may begin not only when the employee begins to work or leaves this tools but also when he used the means of access and egress to and from the place of employment. A contractual duty or obligation on the part of an employer to use only a particular means of transport extends the area, of the field of employment to the course of the said transport. Though at the beginning the word "duty" has been strictly construed, the later decisions have liberalized this concept. A theoretical option to take an alternative route may not detract from such a duty if the accepted one is of proved necessity or of practical compulsion. But none of the decisions cited at the Bar deals with a transport service operating over a large area like Bombay. They are, therefore, of little assistance, except insofar as they laid down the principles of general application. Indeed, some of the law Lords expressly excluded from the scope of their discussion cases where the exigencies of work compel an employee to traverse public streets and other public places. The problem that now arises before us is a novel one and is not covered by authority."
16. The case of Mackinnon Machenzie & Co. (P) Ltd. v. Ibrahim Mahmmed Issak [(1969) 2 SCC 607] is also relevant to understand the meaning of 'arising out of employment'. Justice Ramaswami, 30 delivering the judgment for a three Judge Bench of this Court, held:
"...The words 'arising out of employment' are understood to mean 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'. In other words, there must be a causal relationship between the accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation, must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act..."
17. This Court in Regional Director Employees' State Insurance Corporation v. Francis De Costa [(1996) 6 SCC 1], laid down three principles for the claimants to prove before they can claim compensation under S. 2(8) of the Employees' State Insurance Act, 1948:
"(1) there was an accident, (2) the accident had a causal connection with the employment and (3) the accident must have been suffered in course of employment." As Section 2(8) of that Act is in pari materia with Section 3(1) of the the 31 Act, these principles are relevant for cases under the latter".
25. The said view in Agnes (supra) is also reiterated in case of Leela Bai and Another vs. Seema Chouhan and Another reported in (2019) 4 SCC 325. Similarly Leela Bai referred (supra) considered and reiterated by the Hon'ble Supreme Court in a decision in case of Poonam Devi and Ors. Vs Oriental Insurance Co.Ltd., reported in (2020) 4 SCC 55.
26. Therefore, in view of the principles stated in the above referred decisions, the word "accident" "personal injury"
"in the course of employment" arising out of employment with reference to Section 3 of Act, 1923 are considered then it is evident that the appellants have placed on record legally admissible evidence to show that there was a causal connection between the 'injury and the accident', the 'accident out of' and 'in the course of employment'.32
27. It is borne out from the records that the deceased
-Vijayakuar left for duty on the date of accident in the early morning at about 6:00 a.m. he was on duty continuously nearly for eleven hours as he died about 5:00 p.m. due to heart attack, which is an accident. The vehicle in question was a NEKRTC bus belonging to respondent is also not disputed. The records further indicate that deceased- Vijayakumar joined the service of appellant-Transport Corporation as a driver in the year 1990, which is evident from Ex.P5. Therefore, for the last 22 years he was driving the bus which is admittedly a heavy motor vehicle belonging to the Transport Corporation of the appellant. It is also evident that the bus was driven in a city that too in day time. The very nature of work of the deceased that is driving heavy vehicle causes lot of stress and strain, that too in a big city like Kalaburagi which is a district head quarters. The drivers of heavy vehicle have to face lot of stress and strain because of movements large number of vehicles and public in big cities. The very nature of work of driving heavy vehicle 33 continuously for more than 22 years definitely causes stress and strain, which is incidental to the nature of employment. It is not the case of appellants that he had any disease or he died due to some other reason. The medical reports and evidence placed by petitioners clearly indicates deceased died while on duty due to heart attack.
28. It is to be noted that respondent-Corporation in their written statement filed before the 'Commissioner' have pleaded in separate para No.2 that "it is true to suggest that due to strain the deceased Vijayakumar was sustained and died while on duty". It is also admitted that driver sustained heart attack due to strain. The said written statement is signed by the appellant-Divisional Controller NEKRTC and verified by him. Further the same statement was also repeated at para-2 and 3 of the examination-in-chief affidavit filed by on behalf of the appellant RW.1-Mallinath Pujari, Labour and Well Fare Officer. So the clear admissions made, both in the pleading and in the evidence of respondent, 34 that due to strain the deceased sustained heart attack and died, while on duty, itself is sufficient to prove the case of the petitioners/respondents that the deceased died due to personal injury and an accident arising and out of and in the course of employment. It is settled principles of law that the admissions made in the pleadings stands on a higher footing than other admissions and they themselves can be made foundation of rights of the parties.
29. In the decision relied by the counsel for the respondent in Shakuntala Chandrakant Shreshti (supra), a question of jurisdiction was involved. There was no evidence when exactly death took place is not known, there was also no pleading in this behalf. So principles stated in those decisions will in no way help the respondent-Corporation. The said principles have no application to the question involved and the facts and evidence borne out from this case.
30. The learned Single Judge of this Court in a decision reported in 2011 (6) Kar. L.J. 520 = 2013 Kant. 35 M.A.C. 128 in case of United India Insurance Co.Ltd. vs. Varija and others referred to the decision of the Hon'ble Supreme Court in case of Shakuntala Chandrakant Shreshti (supra); and another decision in case of Malikarjun G. Hiremath vs Branch Manager, Oriental Insurance Co.Ltd., reported in 2009 ACJ 721 (SC), elaborated what is the expression arising out of the course of employment under section 3(1) of the Workmen's Act Compensation earlier, (Now ECA Act, 1923). In that case also the deceased was the driver of the lorry, the said lorry went over a ditch and hit to a road side tree resulting in the death of driver. The deceased was conscious and was in full control of vehicle and cardiac arrest must have happened due to shock of vehicle hitting tree. Injury resulting in death of driver taken place in course of his employment and directly attributed to his employment. So, the learned Single Judge referring to the decisions of Hon'ble Supreme Court referred supra, stated at para-10 as under:
"10. Incidently, the Judgments which are pronounced by counsel for appellant in a way assist the case of claimants-respondents for the 36 reason that, here is a case where when accident took place deceased was in control of his vehicle. Nobody can deny the fact that, when a person is driving a vehicle, be it a truck or a bicycle, certain amount of stress or strain will always be there on him to observe the oncoming traffic, his path and other obstructions which he has to bear in mind while driving the vehicle. More particularly, in this case in a narrow road, i.e., Bircam; pady- Kudumboor road, which is a village road connecting two small Talukas, which is about 30 ft. in width. In such a space the driver who is driving the vehicle should have more care and caution. More particularly, if there are obstructions on either side of the road. In the instant case, admittedly, there are obstructions on either side of the road. In the instant case, admittedly, there was ditch on the left side. When deceased was trying to give way to the oncoming vehicle, he took the vehicle to the left side, the vehicle had gone over the ditch and hit the tree. This is sufficient reason to accept that at the relevant time there was enough stress and strain, which has caused the accident and the said accident is the result for his death. Therefore, this court is of the opinion that, the aforesaid two judgments cited by the appellant would in fact support the case of the claimants. In the result, first substantial question of law is answered in the negative".
31. Therefore, in view of the above discussions and in the light of the principles stated in the above referred decisions, if the petitioners-claimants contentions is 37 considered then it can be safely concluded that deceased- Vijayakumar suffered "heart attack" which is "accident" and it is "personal injury" caused to him "arising out of" and "during the course of employment". The ingredients of Section 3(1) of the Act, 1923, are fully complied by the respondents- claimants. The appellant has failed to show any grounds for interference by this Court. Keeping in mind the object and reasons for enacting the Workmen's Compensation Act, which is a social welfare legislation ment for welfare of employer and employees, if the evidence placed before the Court, in the light of the well established principles regarding appreciation of evidence in such cases, then it is evident that the appeal being devoid of merits is liable to be dismissed. Hence, the substantial question of law is answered in Affirmative.
32. We find no grounds to interfere with the order passed by the 'Commissioner' under the Act, 1923. 38 Consequently, the appeal being devoid of merits is liable to be dismissed. Therefore, we pass the following:
ORDER The appeal filed by the appellant-Transport Corporation is dismissed.
The amount in deposit, if any, shall be transmitted to the II-Addl. Senior Civil Judge & Commissioner of Employees Compensation, Kalaburgai, forthwith and same shall be disbursed in favour of the petitioners immediately in accordance with law.
Costs made easy.
Send back the Trial Court Records to the concerned Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE sdu