Bombay High Court
Area Manager/Sub Area Manager, Western ... vs Smt. Anusuya Narsayya Sirsilla And ... on 6 March, 2020
Equivalent citations: AIRONLINE 2020 BOM 424
Author: Vinay Joshi
Bench: Vinay Joshi
Judgment 1 1036FA1711.19 .odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
First Appeal No. 1711/2019
Area Manager/Sub Area Manager,
Western Coal Field Ltd., Open Cast
Mines, Chandrapur Area, Durgapur,
Tq. and Dist. Chandrapur.
.... APPELLANT
(Ori.Non-Applicant)
On R.A.
// VERSUS //
1. Smt. Anusuya Narsayya Sirsilla,
aged about 44 years, Occ. House Lady,
2. Prashant S/o Narsayya Sirsilla,
aged about 21 years, Occ. Education.
3. Rajkumar Narsayya Sirsilla,
aged about 19 years, Occ. Education
(R/o. Lalpeth, Colliery, near UCO Bank
Chandrapur, Tq. & Dist. Chandrapur)
.... RESPONDENTS
(Ori. Applicants)
On.R.A.
_______________________________________________________________
Shri D. L. Dharmadhikari, Advocate for appellant.
None appeared for respondent Nos. 1 to 3.
_______________________________________________________________
CORAM: VINAY JOSHI, J.
DATE OF RESERVING THE JUDGMENT :- 13.12.2019
DATE OF PRONOUCING THE JUDGMENT :- 06.03.2020
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JUDGMENT
Heard the learned counsel for appellant at the stage of admission. None for respondents despite service.
2. Appellant/employer has called in question legality and correctness of the judgment and order rendered by the Commissioner under the Employee's Compensation Act, 1923 (for short 'the Act of 1923') in Case No. WCA NO. 9/2015 holding respondents' entitlement for compensation under the Act of 1923.
3. The respondents filed application before the Commissioner under Section 22 of the Act of 1923 for grant of compensation of Rs. 6,52,280/-. After recording evidence, the Commissioner concluded that death of Narsayya Sirsilla (workman) was caused by accident arising out of and in the course of his employment and accordingly granted compensation with interest. Appellant/employer filed this appeal under Section 30 of the Act of 1923 challenging the order passed by the Commissioner.
4. While issuing notice, in view of the first proviso added to Section 30 of the Act of 1923, this Court has framed following substantial questions of law:-
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"(i) Whether the Commissioner in the present
case was justified in allowing the claim application and whether it could be said that the death of the victim in the present case could be said to be arising out of and in the course of employment in the absence of pleadings to that effect?
(ii) Whether the respondent No. 2 could be said to be entitled to compensation when admitted at the time when claim application was moved, he was 19 years of age?"
5. The background facts in nutshell are as follows:-
Shri Narsayya (workman) husband of respondent No. 1 and father of respondent Nos. 2 and 3 was working as cable man in the employment of Western Coal Fields Limited (for short 'WCL'). Respondents/claimants filed an application before the Commissioner claiming compensation to the tune of Rs. 6,52,280/- in terms of Section 3 of the Act of 1923. Respondents stated in the claim petition that the death of deceased workman was due to accidental injury occurred while discharging his duty as cable man. It is claimants case that on 29.05.2015 as usual, deceased workman joined his duty at 08.00 a.m. During course of duty, he felled down from building and died on the spot. Deceased workman was 47 years of age and was earning salary to the tune of Rs. 50,495/- per month. According to claimants, the said accident arose out of and in the course of his employment. No sooner deceased workman fell down in accident, he was ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 4 1036FA1711.19 .odt shifted to hospital, however declared dead before admission. Postmortem was conducted on the body of deceased workman as well as the accident was reported to the Police who carried investigation in terms of Section 174 of the Code of Criminal Procedure. Since the death of Narsayya occurred during the course of employment, the employer was liable to pay compensation amount in terms of Section 3 of the Act of 1923. The claimants had issued legal notice to the employer demanding compensation but the latter failed. Therefore, claim was raised before the Commissioner.
6. The employer - WCL has not disputed that deceased workman was in their employment and was doing work as cable man. It is also not in dispute that on fateful day deceased workman attended duty at 08.00 a.m. However, employer has specifically denied that the death of Narsayya arose out of and in the course of his employment. It is specifically denied that deceased workman fell down from building resulting into accidental death. It is the stand of employer that on 29.05.2015 Narsayya attended his duty at 08.00 a.m. Around 03.30 p.m., he came to the office and told that he is tired and slept on the floor. Immediately ambulance was called by which he was sent to the hospital but was declared dead. According to the employer, there is no connection of death of Narsayya with his employment but it was a case of natural death. With such stand, employer denied the liability.
7. On the basis of rival pleading, the Commissioner has framed issues and recorded evidence led by the parties in support of their respective ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 5 1036FA1711.19 .odt stand. The widow of Narsayya led evidence and filed certain documents to support her claim. Per contra, appellant/employer led evidence of three witnesses. The Commissioner held that deceased workman died in the course of and arising out of his employment. With such principle finding, by use of relevant factor of 156.47, compensation was calculated and awarded.
8. Basically, the liability of employer arises to pay compensation by virtue of Section 3 of the Act of 1923. The relevant provision is reproduced as herein below:-
Section 3:-
(1) If personal injury is caused to a employee 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 employee 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 employee having been at the time thereof under
the influence of drink or drugs, or
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(ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employee, or
(iii) the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employees.
(2)........"
9. A plain reading of Section 3(1) of the Act of 1923 postulates to establish that there was some casual connection between the death of the workman and his employment. If the workman dies a natural death because of disease or other suffering de hors to the employment, no liability could be fastened upon the employer. But if the employment is a contributory cause or has accelerated the cause resulting into death, or if the death was not only due to the disease but also coupled with the employment, then it can be said that the death arose out of the employment and the employer would be statutorily liable to pay the compensation. Key words of Section are "arising out of and in the course of employment" which has distinct meaning. Formar relates to the circumstance or condition by which death occurred whilst later relates to the time of occurrence.
10. ''The word ''accident'' is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 7 1036FA1711.19 .odt produces hurt or loss. ''Accident'' generally must be understood as something unforeseen, uncomprehended or that which could not have been foreseen. Even where an employee is suffering from a disease and if employment causes acceleration of the disease either by strain or fatigue incidental to employment, employer would nonetheless be liable for compensation.
11. In National Mineral Development Corporation vs. Bindi Bai, 1998 I LLJ 85 (Madhya Pradesh) one of the question considered was whether a heart attack can be said to be an accident within the meaning of the Act. In paragraph 9 of the Report it was held that:
''An 'accident' is an event which belongs to the realm of the unforeseen and the unexpected. It dons the colors of mishap, when the consequences are untoward. Therefore, anything which happens out of the ordinary would amount to accident. A person suffering from heart ailment may suffer cardiac arrest apparently without any physical stress or strain on his part. Such an event may not be called an accident because cardiac arrest may be assigned to natural causes resulting in illness, especially when there is lack of any datum as to the case which accelerated the cardiac arrest. However, when there is data before the Court to the effect that a person was put to stress and strain just before he suffered the cardiac arrest, in a situation in which, there way no prior complaint of pain in chest or uneasiness or any other symptom signifying an onset of heart attack, it can be held on the basis of preponderance of probabilities ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 8 1036FA1711.19 .odt that the stress and strain might have accelerated the heart disease.''
12. It is throughout the claimants' case that on 29.05.2015, Narsayya attended his duty with WCL. On that day, while doing his regular duty, he fell down from the building resulting into multiple injuries in which he died. The said accident occurred while performing duty and therefore, it is an accident "arising out of and in the course of employment". The claimant widow in her evidence affidavit stated that at the relevant time deceased Narsayya fell down from the height. He sustained injuries and while shifting to the hospital, died. Learned counsel for the respondent has challenged the connection of death with the employment.
13. So far as time of accidental death is concerned, there is no much dispute between the parties. Admittedly, duty hours of deceased workman were from 08.00 a.m. to 04.00 p.m. Deceased Narsayya feinted or lay down on the floor around 03.30 p.m. at the place of employment. Ambulance was summoned at working place from where Narsayya was shifted to the hospital but declared dead. Thus, the crucial aspect is whether the death arises out of an employment. Meaning thereby, whether there was any connection in between death and employment. While disputing the former aspect, the appellant would submit that there was no casual connection in between death and employment. Though Narsayya was doing underground work of cable man, on that day, he was not sent in Mine but ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 9 1036FA1711.19 .odt surface duty was assigned. To substantiate said contention, appellant led evidence of witness No. 2 Sunil Mandal who was doing work of providing lamp to underground workers. He has stated that on the day of occurrence, lamp was not provided to Narsayya and to that effect he has produced a relevant register. It has come in the evidence of appellant's witness No. 1 Smt. Nitu Kakad that, on 29.05.2015 surface duty was assigned to Narsayya. Around 03.50 p.m. Narsayya came to the office and expressed to go out. At that time, Narsayya sat on the floor and therefore, she called ambulance to shift Narsayya.
14. It was specifically denied that at the relevant time, Narsayya fell from building and sustained multiple injuries. The learned counsel for appellant/employer would submit that the claimants have made out a totally false theory of falling from building. For this purpose, he took through Inquest Panchanama and Postmortem Notes. True neither Inquest Panchanam nor Postmortem Note bears reference of surface wound and injuries on the person of deceased. The probable cause of death was opined as it can be given after viscera report. However, the final cause of death certificate is not produced. It is unfortunate that exact cause of death has not come on record but surely there were no surface wound or injuries on the person of deceased.
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15. The appellant would submit that the burden lies on the claimants to establish both factors i.e. workman died out of and in the course of employment. In this regard, he relied on the decision of the Supreme Court in case of Mackinnon Mackenzie and Company Private Limited Vs. Ibrahim Mahmmed Issak, 1969 DGLS (SC) 281 . In the said case, it is expressed that the burden lies on the claimants to prove his case, however, the proof may not be by direct evidence. The Court held that the proof can be discharged by circumstantial evidence, It is further held that, the Commissioner cannot draw inference on surmise, conjecture or guess, but on proved facts he can draw legitimate inference. The Supreme Court further held that it was for the employer effectively to lead evidence about what the employee was doing during that period, the evidence being within its special knowledge. In the absence of any evidence having been led, an adverse inference can be drawn against the employer. Therefore, although the initial onus of proving that the death arose both out of and in the course of employment, lies on claimant however, these essentials can be inferred when the proved fact justifies such inference. Moreover, as stated above, the Commissioner is free to draw adverse inference, if the employer has not divulged the details about his personal knowledge.
16. The learned counsel for the appellant submitted that there must be some casual connection between death of workman and his employment. Mere death of workman during duty hours cannot be construed as a death of ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 11 1036FA1711.19 .odt workman, as death during the course of employment within the meaning of Section 3(1) of the Act of 1923. In this regard, he equally relied on the above referred case of Mackinnon Mackenzie and Company (Supra) .
17. In this regard, it would be advantageous to refer decision in case of Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Co. Ltd. and another, 2009 AIR (SCW) 1688 . The relevant portion is reproduced as below:-
"14. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn.s case (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 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 12 1036FA1711.19 .odt for the workman to succeed, but the same would depend upon the fact of each case."
18. Though it is necessary to have a casual connection between the employment and the death within the meaning of Section 3 of the Act of 1923, however, it is not necessary that it should be strictly established that the workman died as a result of exceptional strain or some exceptional work. If the nature of work and the duty hours caused great strain to the employee and it has caused unexpected death, it can be said that the workman died as a result of an accident which has arising in the course of his employment.
19. The appellant would submit that it is claimants' specific case of fall from building which does not have support from Inquest Panchanama and Postmortem Notes. According to him, the Commissioner committed an error in drawing inference that due to continues work in the Mine, Narsayya got tired and died. It is submitted that it is impermissible to put up a case beyond the pleadings. In this regard, the appellant relied on the decision in case of Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali & Anr, 2007 AIR (SC) 248 . In the said case, the Supreme Court principally dealt with the aspect as to what amounts to substantial questions of law. It is held that the finding of fact arrived without there being any evidence would also give rise to substantial question. Though there is reference of absence of pleading, however it is also observed that each case has to be considered on it own fact and no hard and fast rule can be laid down. In the proceedings ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 13 1036FA1711.19 .odt under the present beneficial legislation, the technical rules of pleadings would not apply strictly. The applicants if broadly states in the application the facts which gave them cause for filing the application, it would suffice the purpose. A Division Bench of the Kerala High Court in the case of Kunchali Rudrani v. Baby, reported in (1979) 1 LLJ 306 , has held that the provisions of Evidence Act are not strictly applicable to the proceedings before the Commissioner for Workmen's Compensation.
20. The provision of Rule 41 gives enough discretion to the Commissioner to depart from the provisions of the Civil Procedure Code, some of which have been made applicable to the proceedings before him. Therefore, it is obvious that the Commissioner is not bound to follow the procedure prescribed for trial of cases in civil courts, nor he is bound to restrict rules of evidence. As provided under Section 10-A of the Act, he can even act on information received by him from any source regarding fatal accident and call upon the employer to explain as to under what circumstances death had occurred. He can also ask for the explanation of the employer whether he is or is not liable to deposit the compensation on account of the death. Most of the labour population suffers from the curse of illiteracy and poverty and is incapable of entering into legal fight with the employer. However, it is the responsibility of Commissioner to assist the weaker. Wherever necessary with a view to see that the provisions of the Act are strictly enforced, he must act suo motu.
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21. True, only because death has taken place in the course of employment, it will not amount to accident since there is no such presumption. The claimant has to prove that accident had occurred. The provisions of the Act of 1923 are sort of welfare legislation. The very object of legislation is to protect the weaker section i.e. workers from the hardship arising from accident. The Commissioner has to interpret the term "accident arising out of and in the course of employment" liberally to achieve the legislative object. The accident arising out of employment, is not confined to the mere nature of the employment. The accident, undoubtedly applies to employment such as to its nature, its obligation, its condition and its incident.
22. In the statement of objects and reasons articulated at the time of moving the Bill which ultimately resulted in passing of the Act, it is stated:
"...The growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen, along with the comparative poverty of the workmen themselves, renders it advisable that they should be protected, as far as possible, from hardship arising from accidents."
In the statement of objects and reasons, it is further stated:
"The general principle is that compensation should ordinarily be given to workmen who sustained personal ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 15 1036FA1711.19 .odt injuries by accidents arising out of and in the course of their employment.
....At the same time, on unanimous recommendation of the committee, provision has been made for special Tribunals to deal cheaply and expeditiously with any disputes that may arise, and generally to assist the parties in a manner which is not possible for the ordinary Civil Court."
23. 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 S.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 order to hold the employer liable for the payment of compensation, it is not necessary to show that the injury in question occurred during the actual working having direct link with the duty. The provisions of statute are to be liberally interpreted to give meaning to the intention behind the provision.
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24. In case of Post Master General vs. Kaushalya Devi, 2003 I LLJ 515 (JandK), the workman died of a heart failure while returning home from duty. It was held in paragraph 7 of the Report:
''It is pertinent to point out that the Workmen's Compensation Act, 1923 is a piece of social security legislation and it is generally accepted that the various provisions of the Act ought to receive a liberal interpretation. Since the Act is a welfare legislation, made for the interest of the poor workmen, even if any particular provision of the Act is capable of two interpretations, that which is more favorable to the person for whose benefit the legislation has been made, should be adopted. ...... such liberal interpretation would accomplish the humane and welfare purposes of this legislation, the provisions of which are truly responsive to the socio-economic needs recognized by our society and also by the Constitution. The rights of workmen deserve to be treated generously while applying the statutory provisions.''
25. The claimants are widow and minor children of deceased workman. Obviously neither they were present at the time of occurrence nor aware about the exact happening. Considering their position and plight, the pleadings are to be liberally construed. The basic fact that Narsayya was on duty and he died during duty hours that too in the campus of employer are very much established, rather undisputed one. ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 :::
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26. Employer's witness No. 1 - Nitu stated in her evidence that though duty hours of Narsayya were upto 04.00 p.m. however he came at 03.50 p.m. to the office and sat down within a minute. She stated that as health of workman was abnormal, ambulance was called. This itself demonstrates that something was wrong with Narsayya while he was doing his duty in the Mine. Therefore, he came to the office to inform but he sat at the place and died. Indeed, from 08.00 a.m. onward, he was continuously doing duty in the Mine upto 03.30 p.m. At 03.50 p.m. due to unease, he came out and then collapsed. This circumstances are self evident to show that there was connection between the death and the employment. One cannot separate these two things since they are very much inter connected with each other.
27. The appellant has not led evidence to show that due to some other cause Narsayya died. At the cost of repetition, I may say that the "accident arising out of employment" is not confined to the mere nature of the employment. The variety of factors like the nature of work, condition of work, the obligation of employer are also relevant factors. It is not the employer's case that the workman has exposed himself to an added peril by his own imprudent act. One cannot expect a proof beyond reasonable doubt in such case but the material is to be understood on the basis of preponderance and probabilities. True, presumption cannot be drawn on the basis of mere death during working hours but it can be drawn on the basis of ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 18 1036FA1711.19 .odt circumstances which relates to the occurrence. There is no evidence that Narsayya was suffering from prior ailment. Though employer tried to show that two days preceding to the occurrence, Narsayya was on medical leave but neither employer produced record nor two days leave will signify anything.
28. Admittedly Narsayya was underground worker who in normal course was supposed to do underground work. The employer tried to make out a case that on that day, surface work was allotted to workman, but no convincing evidence is led to that effect. Employer's witness No. 3 Loknath Behara stated that the Narsayya was underground labour but he was allotted surface duty on that day. The employer is trying to claim exception to the normal underground duty of Narsayya. In the circumstance, it is for employer to bring relevant material to support the stand. During course of cross-examination, Witness No. 3 Loknath Behara admits that he has not brought any documents to show that he allotted work to Narsayya on crucial day. Likewise, employer's Witness No. 2 Sunil who was supplying lamps to underground workers admits that he was not aware as to what type of duty was assigned to Narsayya by the Leader of Gang. Furthermore, he admits that he was not concerned with the nature of work assigned to Narsayya on that day. It makes difficult to accept the employer's stand that particularly on that day surface duty was assigned to the deceased workman who was cable man and underground labour.
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29. The scheme of the Act is very clear which is evident from the various provisions of the Act itself. The legislature had also felt that it was necessary to generally assist the parties in a manner which is not possible for the ordinary Civil Courts. Somewhat proactive role is expected from the Commissioner which can be visualized from Section 10-A of the Act of 1923.
Under said provision, the Commissioner even on receiving information from any source about the accident can send notice to the employer requiring him the circumstances under which death occurred and liability of compensation. Pertinent to note that Section 22(3) of the Act of 1923 empowers the Commissioner to assist the illiterate claimant to furnish requisite information so as to facilitate him to get compensation for which he deserves. One can gather from these variety of provisions that this is a special legislation wherein strict rule of pleadings and evidence are not required but to further object of the Act, the Commissioner has to take active role. In case at hand, the Commissioner has not called the final cause of death certificate which he should have. Inasmuch as, he could have examined the co-worker at his own to supplement the cause.
30. It is claimants' case that while doing work, Narsayya died around 03.30 p.m. It has come on record that as per register maintained by employer, around 03.50 p.m. Narsayya came to the office. Admittedly, there was over-writing of time to the record when Narsayya came to the office. It is not explained as to why there was over-writing in the time. In absence of ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 20 1036FA1711.19 .odt explanation the said fact goes against the employer as may be for some other purpose, the entry was tried to be manipulated.
31. In case of New India Assurance Co. Ltd., Vs. Sarasu and others, reported in 2007 ACJ 672, 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, it is held that the workman died on account of heart attack, which occurred during the course of his employment while he was working as a driver.
32. 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. Recently, under Mine duty itself is considered as an risks based job. Ministry of Labour and Employment has suggested steps like "Risk-Based Inspection System" to improve safely of Mine workers in the year 2018. Under a joint ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 21 1036FA1711.19 .odt project with National Institute of Miners 'Health (NIMH) Nagpur on "Multi- Centric Study of Dust Related Disease in Stone Mines and Development of Sustainable Preventive Programme", field studies were successfully conducted in Nalgonda district of Telengana and Karauli, Dholpur, Jodhpur, Nagpur and Bharatpur districts of Rajasthan, Vidisha district in MP and Birbhum district in WB. 2539 workers have been medically examined and 136 cases of silicosis affected persons were identified. In the light of such position, nature of job i.e. Mine duty has to be borne in mind while appreciating the case.
33. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it." 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 these factors the workman is brought within ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 22 1036FA1711.19 .odt the scene 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 circumstances under which death occurred is important as it varies from case to case.
34. In the case of Oriental Insurance Company Vs. Nagaraj & others reported in 2008 (4) MLJ 58 it is opined that suffice it to note that strain, even if it was a normal strain, connected with the employment was the reason for the death of workman and the provisions of Workmen's Compensation Act should be broadly and liberally construed in order to effectively apply the provisions of Act.
35. The employer gave suggestion to the claimant No. 1 (widow) that on the relevant day, around 03.30 p.m., Narsayya came out of the Mine as he was tired. Likewise, employer's Witness No. 1 Nitu also stated that no sooner workman came to her office at 03.50 p.m. he sat on the floor and on pursuing unusual health, she called ambulance. These facts are self evident to draw logical inference that due to continuous underground work from 08.00 a.m. to 03.50 p.m., Narsayya became uncomfortable hence, came out of the Mine and within a minute sat on the floor and died.
36. Applying the law laid down by various decisions to the facts of the present case, it is quite clear that since there is no ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 23 1036FA1711.19 .odt evidence of any prior history of any heart ailment, the heart failure may have suffered by the deceased must be held to be an accident. For the sake of argument, the deceased may have a heart related problem, still it is held on the basis of the evidence on record referable to his anxiety and tension, that his death was caused by or at least aggravated by the tension that he was undergoing or by precarious underground work.
37. It is true that there is no direct evidence of the incident. It is equally true that very scanty material is available on record about the circumstances in which the incident took place. But the absence of ample evidence should not relieve the Court of its duty to arrive at a conclusion on the vital issues on the basis of available material. The Act is a beneficial legislation intended to give some security to the workman in certain types of employment. Indeed it contains a sort of mini-insurance scheme. The liability of the employer under the Act is conceptually quite different from the liability under tort. All these facts, therefore, call for a broad and liberal construction of the Act, lest its evident object is defeated.
38. The leading case of Laxmibai Atmaram v. Chairman and Trustee, Bombay Port Trust (AIR) 1954 Bombay 180 relates to a heart patient watchman of the Port Trust, who in the midst of his duty hours in the midnight, complained of a pain in the chest and died in the morning even though he was made to lie down after the pain. The Commissioner had rejected the claim holding that it was a case of natural death. The High Court ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 24 1036FA1711.19 .odt in appeal set aside the order taking a view that heart injury was accelerated by strain of work and it was a case of death by disease as well as the employment and not by disease simpliciter, there was a causal connection between the death and employment and that connection was sufficient to attract the liability of the employer under Section 3 of the Act of 1923.
39. 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, to my mind a stronger case and in such circumstances if he suddenly gets a heart attack while on duty, the accident can be nothing but arising out of his employment. Even though there is no plausible medical evidence to project 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.
40. Therefore, the occurrence as a whole is clear enough to convey that there is casual connection between death of workman and his employment. It is not possible to draw inference that the death has no connection with his underground duty in the Mine. Some peripheral things are to be adverted, like stress arising out of employment, nature of work, service conditions etc. I may reiterate that there cannot be a direct evidence ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 ::: Judgment 25 1036FA1711.19 .odt of stress on the workman at the relevant time. Certainly, it is a matter of inference which one can easily draw from the very fact that after doing 8 hours under Mine duty, workman came out on surface and died within few minutes. The Court shall not expect the evidence which is impossible to lead, otherwise the very purpose of the legislation would be frustrated.
41. Accordingly, one has to construe all the facts and circumstances together and read the evidence in the light of the provisions of beneficial legislation. The inference drawn by the Commissioner is based on the relevant circumstances which cannot be said to be perverse or without foundation. So far as the assessment of compensation amount and use of relevant factors is concerned, the said aspect is not seriously challenged by the employer nor any perversity is noted in the impugned order to that effect. Therefore, impugned order calls for no inference. The appeal carries no merits, hence for the reasons stated above, it stands dismissed. No costs.
JUDGE .
Gohane ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 22:55:22 :::