Delhi High Court
Star Health & Allied Insurance Co. Ltd. vs Ambedkar Singh & Ors. on 15 May, 2019
Equivalent citations: AIRONLINE 2019 DEL 724, 2019 (5) ADR 695, (2019) 265 DLT 73, (2019) 3 ACC 762, (2019) 3 SCT 614
Author: Najmi Waziri
Bench: Najmi Waziri
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 15th May, 2019
+ FAO 79/2016 & C.M.Nos.5692, 5694/2016, 27515/2017
STAR HEALTH & ALLIED INSURANCE CO LTD. ..... Appellant
Through: Ms. Suman Bagga and Mr. Pankaj
Gupta, Advocates
Versus
AMBEDKAR SINGH & ORS. ..... Respondents
Through: Mr. Rajesh Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J
1. This appeal impugns an order dated 02.12.2012 granting
compensation to the respondents for the demise of Subodh Singh, the
relative of the claimants. Subodh Singh expired in Saudi Arabia, where he
had been sent in the course of his employment. Before his departure from
India, the employer and the Insurance Company had both examined him
medically and had found him to be physically fit or not suffering from any
ailments.
2. The aforesaid medical examination was all the more necessary and
relevant for the insurance company because the insurance cover was
extended when the insured had sufficiently satisfied itself that the assured
Mr.Subodh Singh did not suffer from any medical infirmity. The claimants‟
FAO No.79/2016 Page 1 of 21
contended that because of strain and stress brought about by more than
normal working hours, on regular basis, in a foreign land, the deceased
developed mental and physical stress. This was compounded with the
extremely high day temperatures in that country. The claim was allowed on
the same ground in terms of the following reasoning:-
"6. On perusal of record and material available and
pleadings of both the parties, it is clearly established that the
deceased Subodh Singh was doing his work abroad on the
direction of M/s Sana International. It is also established that
M/s. Sana International had got the deceased fully medically
examined two times in Delhi, thereafter the deceased Subodh
Singh was sent abroad and Shri Subodh Singh was also
examined by the doctor before joining his duty at the said work
place. It is also established that the deceased Subodh Singh was
working abroad and residing abroad for respondent No.l and 3.
M/s. Sana International accepted that they had only arranged
the medical check-up and other formalities to deceased Subodh
Singh.
7. Respondent No.2 i.e. the Insurance Company also
admitted the policy which was issued by the Insurance
Company regarding deceased Subodh Singh. They only denied
on the ground that the death of deceased was not covered under
policy and it is a natural death, but it is clear that Subodh Singh
was working and residing in Saudi Arabia as a workman of the
management, therefore, the legal heirs of the deceased Subodh
Singh are fully entitled for compensation from the Respondents.
The Insurance Company had taken objection on the medical
report of the deceased Subodh Singh, in which doctors
mentioned the cause of death, acute blood and respiratory
arrest, a result of concealed illness, but in the present case the
deceased workman Subodh Singh was examined by doctors in
Delhi and in Saudi Arabia after joining his duty. It is not
possible that any workman can conceal any such illness before
doctors. Shri Subodh Singh, deceased workman could not have
concealed his disease, if any, before the doctors who examined
FAO No.79/2016 Page 2 of 21
him on instance of the management as it is the duty of the
doctor to examine any person who was present before him for
examination thoroughly and produce their report before
concerned authority. In the present case the workman was duly
examined by M/s. Sana International before competent doctors
twice and the Insurance Company also got the deceased
workman Subodh Singh medically examined before issuing
policy in favour of deceased Subodh Singh. Accordingly, if any
disease occurred to the deceased Subodh Singh after he arrived
in Saudi Arabia which was result of living in different
atmosphere and other reasons which are already mentioned in
the statement of claim. The death of the deceased was covered
as occupational decease under Employees Compensation Act,
1923 in part (3), item No.26, accordingly issue No.l was
decided in favour of the applicants and against the respondents/
management. The applicant/ claimant demanded a
compensation of Rs.4,12,000/- but the insurance company
already accepted its policy that the policy amount is Rs.
10,00,000/- as compensation in accidental death, accordingly
the applicants are entitled to Rs. 10,00,000/- as compensation
for which the policy was already issued by the Insurance
Company. There is no harm to any party if the said insurance
company pays the above mentioned amount as per terms of the
insurance policy.
3. The learned counsel for the appellant submits that the impugned order
has erred in appreciating the terms of indemnification under the insurance
policy in the event of death or an injury suffered by the employee, i.e. the
indemnification would happen either of the two eventualities resulted solely
and directly from accident caused by external violent and visible means. In
particular, she relies upon para. A of the Policy as well on „Death by
accident‟, which is defined as under:-
"Death by accident: Death caused by external, violent and
visible means would include death arising out of or traceable to
slipping and/or falling from the mountain terrain, biting by
FAO No.79/2016 Page 3 of 21
insects, snakes and/animals drowning washing away in floods,
landslides, rockslides, earthquake, cyclone and other
convulsions of nature and/or calamities, murder and terrorist
activities.
4. The learned counsel further contends that the demise of the assured
employee was not covered under the aforesaid expression „Death by
accident‟; i.e. on a common understanding and in a non-technical sense, the
said expression would mean that the death ought to have been as a result of
some violent act or an accident having been caused while on the move in a
vehicle or from falling or on being bitten by poisonous insects/creatures or
by drowning and other convulsions of nature such as being swept/drowned
away in floods, landslides etc.. In the present case, none of these
eventualities happened. Instead, the deceased passed away due to some
undetected illness. She argues that in any case the insurance policy did not
extend the indemnification for death due to concealed illness or a natural
death. Therefore, the appellant would have no liability to pay any
compensation. It is argued that the amount claimed was only Rs.4.12 lacs
yet the impugned order granted over Rs.10 lacs alongwith interest @ 12%
per annum, which is unfounded; that the impugned order has erred and
ought to be set aside.
5. The learned counsel for the respondents refutes the aforesaid
contentions and submits that the Workmens‟ Compensation Act, 1923 is a
socially beneficial legislation and a broad interpretation has to be accorded
to its provisions and the insurance policy too has to be read likewise. He
relies upon the judgment of Madras High Court in United India Insurance
Co. Ltd. v. Padmini and another 2015 ACJ 439 to contend that the Death
FAO No.79/2016 Page 4 of 21
by accident would cover the expressions "death by accident", where death
has occurred because of stress and strain during the course of employment.
The aforesaid case had examined the issue of stress and strain in the job of a
watchman. The relevant paras are as under:
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 (1) LLJ 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
pain 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 Section 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.
FAO No.79/2016 Page 5 of 21
(b) In Bai Shakri v. New Manekchowk Mills Company Ltd.,
1962 (4) FLR 369 : 1961 GLR 23 : 1961 (1) LLJ 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 AC 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 AC 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
FAO No.79/2016 Page 6 of 21
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) AELR 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
FAO No.79/2016 Page 7 of 21
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) AELR 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."
FAO No.79/2016 Page 8 of 21
14. Similarly, in Hilton v. Billington & Newton, Ltd., 1936 (3)
AELR 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 21st February, 1936, a cold day, a lorry
driver strained himself by having to crank up his lorry at
frequent intervals. On 23rd February he was found to be
suffering from influenza. He returned to work on 16th March
having recovered from influenza. He died on 27th April. The
evidence showed that the strain on 21st 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 21st February,
1936 and which had contributed to his death."
(c) In United India Insurance Co. v. C.S. Gopalakrishnan, 1989
(1) ACC 524 : 1989 (2) LLJ 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):
FAO No.79/2016 Page 9 of 21
"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 a.m
apparently in good health and felt unwell soon after reaching
the dock where he was employed. At 6 a.m. he commenced work
and was engaged with others in loading and unloading bags of
china clay and sugar. At 8.30 a.m. he had breakfast. He
resumed work at 9 a.m. 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;
FAO No.79/2016 Page 10 of 21
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
FAO No.79/2016 Page 11 of 21
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 & 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 v. Reethammal, 1997 (2) 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
FAO No.79/2016 Page 12 of 21
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. Gopalakrishnan, 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
FAO No.79/2016 Page 13 of 21
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
(1) 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 (2) 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
FAO No.79/2016 Page 14 of 21
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 v. Gurrapu Anjamma, 2000 (1) 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 (2) 511;
2. National Insurance Company Ltd Bangalore v. Balawwa,
1994 (1) LLJ 433;
3. United India Insurance Company Limited v. Yasodara
Amma, LLJ 1990 (1) 387;
4. Abdul Sallar Rehmanbhai v. Julekhabi Rahiman
Daryawardi, 1989 LLR 289;
5. United India Insurance v. C.S. Gopalakrishnan, LLJ 1989 (2)
30; and
6. Zubeda Bano v. S.R.T.C., LLJ 1991 (1) 66.
5. In Reethammal's case (supra) the Division Bench of Kerala
High Court held thus:
FAO No.79/2016 Page 15 of 21
"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
(1) 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
FAO No.79/2016 Page 16 of 21
with Section 4 of the Workmen's Compensation Act (See:
1. Mackinon Mackenzie and Co (P) Ltd v. Rita Fernanda, 1969
(2) LLJ 812; Devshi Bhanji Khona v. Mary Burno, 1985 (2)
LLJ 70 (Kerala); United India Insurance Company
Ltd. v. Yashodhara Amma, 1990 (1) LLJ 387 (Kerala); Zubeda
liana v. Maharashtra State Road Transport Corporation, 1991
(1) LLJ 66 (Bombay)." (Para 10)
7. In United India Insurance Company Limited v. Yasodara
Amma, 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 sub-section (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
FAO No.79/2016 Page 17 of 21
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, 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, LLJ 1989 (2) 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."
FAO No.79/2016 Page 18 of 21
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."
(Emphasis Supplied)
6. The respondent also relies upon the judgment of the High Court of
Kerala at Ernakulam in United India Insurance Co. Ltd. v. Yasodhara
Amma and another 1989 ACJ 1075 which held as under:
"4. Counsel for the appellant submitted before us that the
section is not attracted since there is no personal injury
caused to the workman by accident arising out of and in the
course of his employment, Certainly, the illness showed fatal
symptoms during the course of his employment. The question
is whether there was any personal injury caused to the
workman by accident. How this provision has to be construed
has been clearly stated by a Division Bench of this court
in Devshi Bhanji Khona v. Mary Burno, (1984-II-LLJ-70) where it
was observed thus (p.71):
"The object behind the legislation being protection to the
weaker section with a view to do social justice, the provisions
of the Act have to be interpreted liberally so that other things
being equal, the leaning of the court has to be towards the
person for whose benefit the legislation is made. Bearing this
principle in mind, the expression 'accident' found in Sub-section
(1) of Section 3 of the Act has to be understood as meaning a
mishap or untoward event, not expected or designed. In other
words, the basic and indispensable ingredient of the accident is
the unexpectation. In this case, the workman who was already
suffering from heart disease, as disclosed by the oral evidence
FAO No.79/2016 Page 19 of 21
of the co-worker of the 1st respondent's husband and Ext. WI.
Medical Certificate, when he was subjected to over-exertion,
there was a sudden deterioration of his health which proved to
be fatal. But for this over-exertion, which he was not able to
bear in the state of health in which he was then, the death,
following his fall while carrying the cashew boxes, would not
have occurred. In this way, there is a causal connection
between the employment and his death in the unexpected way.
This could certainly be considered to be an accident arising out
of and in the course of his employment, which would entitle the
dependent legal heir to claim compensation".
5. From what we have quoted above, it is clear that the
'accident' found in Sub-section (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 earlier, 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 lime when the
accident happened and the causal 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".
7. What emerges from the aforesaid discussion is that when the deceased
went from India, he did not have any medical ailment. However, he
developed a medical condition, which led to his demise; it would be
FAO No.79/2016 Page 20 of 21
attributable to the discharge of his duties during the course of his
employment and would be covered under the terms of indemnification under
the insurance policy.
8. Interestingly, the learned Trial Court has pertinently held that the
deceased- Subodh Singh was medically examined in Delhi, before he left for
work to Saudi Arabia, and was also examined after joining his duties. It was
not possible for a workman to conceal any prior ailment before the two sets
of doctors, who had examined him at the instance of the Management.
9. In view of the above, the Court finds no reason to interfere with the
impugned order. The petition, being without merits, is dismissed. The
pending applications also stand dismissed.
NAJMI WAZIRI, J.
MAY 15, 2019 sb FAO No.79/2016 Page 21 of 21