Madras High Court
The Managing Director vs Smt.Subbulakshmi on 8 April, 2011
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:08/04/2011 CORAM THE HONOURABLE MS.JUSTICE K.B.K.VASUKI C.M.A(MD)No.846 Of 2005 and C.M.P.No.5270 of 2005 The Managing Director, Highland Parade Resort, M/s. Highland Holiday Homes Pvt. Ltd., Near Kurinchi Andavor Kovil, Vilpatti Village and Post, Kodaikanal Taluk. ... Appellant/ Respondent Vs. 1. Smt.Subbulakshmi 2. Rajamanikam 3. S.Geetharani ... Respondents/ Claimants PRAYER Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Compensation Act, against the award, dated 14.09.2004 made in W.C.No.53 of 2004, on the file of the Deputy Commissioner of Labour, Dindigul. !For appellant ... Mr.K.M.Vijayakumar ^For 1st Respondent... Mr.C.K.M.Appaji For respondents 2 and 3 ... No Appearance * * * :JUDGMENT
The appeal is filed by the employer against the award of compensation of Rs.1,53,090/- with interest at 12%p.a. in favour of the wife, son and daughter of one Shanmugam, who died on 22.01.1999 due to heart attack, while he was in night duty as Watchman at Highland Parade Holiday Resort at Kodaikanal. The claimants 1 to 3 have filed the claim petition before the Commissioner of Workmen's Compensation cum Deputy Commissioner of Labour, Dindigul, against the Manager, Highland Parade Resort, Kodaikanal, on the ground that the deceased was employed as night watchman in the respondent's holiday resort from 1996 onwards and he has been continuously on work during night hours in chill climatic condition during the month in question, as a result, he had heart attack and died inside the resort while on duty and as death is out of and in the course of employment, the respondent/employer is liable to pay compensation to the claimants.
2. The respondent has, in para.5 of the written statement of objection filed by them, admitted that the deceased was employed in their holiday resort, but further stated that he was employed by Asian Security Services on the strength of an agreement between the respondent and the Security Services and the agreement lapsed on during December 1998 i.e. before the occurrence date and the respondent has not employed him on his own and is not answerable for the claim of the petitioners.
3. The claimants and the respondent have in support of their respective contentions examined the first claimant as P.W.1 and the accountant of the respondent as RW1 respectively and the claimants have also produced Ex.P.1/death certificate and Ex.P.2/ration card.
4.The Workmen Compensation Commissioner/Deputy Commissioner for Labour, Dindigul has, on the basis of the evidence adduced before the same, found that the deceased was employed as security guard in the respondent holiday resort and he died on 22.01.1999 due to heart attack sustained out of and in the course of his employment and hence held the respondent liable to pay compensation to the claimants and awarded Rs.1,54,090/- as compensation. Hence, this appeal by the respondent.
5. The respondent has in his memorandum of grounds raised two substantial questions of law and this appeal is admitted on the same substantial questions of law which are as follows;
"(a) Whether an employer is liable for payment of compensation under the Workmen's Compensation Act for death due to heart attack which is not directly attributable to any specified injury by accident arising out of and in the course of employment?
(b)Whether "heart attack" can be said to be an occupational disease as contemplated under the Act?"
6. Though the respondent has denied the employer and employee relationship between the deceased and the respondent, and though the Workmen Compensation Commissioner has on the basis of the available evidence arrived at a conclusion that the deceased was employed as security guard in the respondent holiday resort and he died on 22.01.2009 in the place of employment, while he was on duty, the correctness of such factual finding is not questioned by the respondent by raising any substantial questions of law in this appeal. The substantial questions of law raised in this appeal is that the cause of heart attack resulting in death is not directly attributable to the nature of his employment and hence death cannot be treated as employment injury due to any accident occurred out of and in the course of his employment.
7.Heard both sides.
8.For the purpose of understanding the claim made under challenge and the objection raised against the same, it is but relevant to refer to Section 3 of the Workmen's Compensation Act, 1923 (hereinafter referred to as "the Act") which specifies the circumstances under which the employer is liable for workmen's compensation. Sections 3(1), 3(2) & 3(2)(a) of the Act reads as follows;
"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: .....
(2)If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment:
Provided that if it is proved,-
(a)that a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-
section for that employment, and"
9.Our Apex Court has in the judgment reported in AIR 2007 SC 248 (Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali), after discussing the case laws, particularly the case in Employees' State Insurance Corporation Vs. Fancis De Costa, reported in AIR 1997(I) LLJ 34 (SC) laid down the following principles with regard to essential ingredients to attract the provision of Section 3 of the Act.
"The principles are:
(1)There must be a casual connection between the injury 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 reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the facts of each case.
4)Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed.
5)There must be a crucial link between the casual connections of employment with death. Such a link with the evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction.
6)An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident.
There is no presumption that an accident had occurred.
In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia are:
(a)stress and strain arising during the course of employment;
(b)nature of employment; and
(c)injury aggravated due to stress and strain."
10.The Division Bench of our High Court in the judgment reported in 2003(3) MLJ 314 (P.Kalyani Vs. The Divisional Manager, Southern Railway (Personal Branch), Divisional Office, Madras) has also laid down that in order to attract Section 3(1) of the Act, three conditions are to be fulfilled. They are: (i) personal injury; (ii) accident and (iii) arising out of and in the course of employment. The Personal injury under the Act means physiological injury and it may be external or can be internal. The expression "accident" is though not defined under the Act has been the subject matter of number of decisions and has conferred a settled meaning and the word "accident" is used in ordinary and in popular sense and it means a mishap or untoward event which is not expected or designed. It means some happening at the definite point of time and the incapacity resulting from the happening. The expression "in the course of employment" emphasizes the time when the accidental injury was caused and "out of employment" emphasizes that there must be a causal connection between the employment and the accidental injury. Further the expression "arising out of the employment" is not confined to the mere nature of employment, but applies to the employment, as such to its nature, its conditions, its obligation and its incidents as held by the Supreme Court in the judgment reported in 1969 (2) SCC 607 (Mackinnon Machenzie and Co. Private Limited Vs. Ibrahim Mohammed Issak).
11.Only in the light of the above legal position, the claim of the petitioners is to be now appreciated. As already referred to, the fact that the employee died due to heart attack during night hours inside the place of employment is not disputed. But, that by itself will not, as rightly observed by the Apex Court in the judgment reported in Shakuntala Chandrakant Shreshti case (AIR 2007 SC 248) give rise to automatic presumption that the same was by way of accident. It is further held by the Apex Court in the case cited above that the burden is upon the claimants to establish the existence of the circumstances that the nature of the employment is such and involves stress and strain and the heart attack is caused due to some risk incidental from the duties of the service and the nature of duties contributed to the death and there is thus crucial link between the employment and death and such a link cannot be a matter of surmise or conjecture and no legal fiction can be raised in this regard. The Supreme Court has in the same judgment observed that although the onus of proving that the injury by accident arose out of and in the course of employment rests upon the claimant, these essentials may be inferred when the facts proved justified such inference and the inference is hence legitimate and the nature of evidence to be adduced need not be beyond reasonable doubt, but must be such as would induces a reasonable man to draw such inference.
12.Our High Court has also in the judgment reported in 2009 (I) MLJ 495 (National Insurance Company Limited Vs. A.Saroja and others) expressed the view that even an ordinary strain in the given circumstances of the case would be enough to cause injury or death and the same has to be held in the course of and out of employment and the claimant is entitled for compensation. The further stand taken is that the claimant is expected in law to show that the workman suffered injury or death due to strain or stress drawn from work which in particular circumstances were sufficient to cause injury or death. It is not necessary to prove that the injury or death are caused by the stress and strain beyond any doubt as in a criminal case but it is enough to show the preponderance of probabilities which would form a premise that the claimant's version is probable.
13.According to the claimants, the deceased sustained heart attack due to stress and strain drawn on account of nature and pressure of his work as night duty watchman in such chill climatic condition in hill resort, that too continuously for days together during the particular month in question. Such contention raised in the claim petition is not resisted by the respondent either in the counter or in the course of cross examination of PW1. The same is also not denied in the course of chief examination of RW1. But, the same is so seriously disputed before this Court and it is contended on the side of the respondent that the death was only due to heart attack having no connection with the employment and also not due to any injury sustained in any accident occurred in the course of employment and the claimants are hence not entitled to claim any compensation from the respondent/employer. However, in view of the ratio laid down by the Supreme Court in the judgment reported in AIR 1999 SC 1441 (Vidhyadhar Vs. Mankikrao) to the effect that where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross-examined by the other side, the presumption would arise that the case set up by him is not correct, as such the failure of the respondent to seriously dispute it in the counter and in the witness box and to raise any positive stand and to adduce any contrary evidence, presumption that could be drawn is that the objection raised by the appellant herein could not be sustained.
14.Further, the majority of Full Bench of Assam High Court in the judgment reported in AIR 1963 Assam 127 Full Bench (Assam Railways and Trading Co. Ltd., Vs Saraswati Devi) has held that when the death was due to heart failure that itself can be described as accidental personal injury that was an event which happened suddenly and in a true sense it is a mishap and is caused to the deceased by an accident. In the other case decided by the our High Court in the judgment reported in 2008 (2) CTC 407 (The Oriental Insurance Company Ltd., Chennai Vs. Nagaraj and others), the death due to heart attack of an employee in a tea estate while carrying head load upon climbing hilly terrain is held to be death arising out of and in the course of employment. It is held that the nature of work itself involved stress and strain and it is contributed to heart attack resulting in death of the employee. Such finding rendered by the Deputy Commissioner on the basis of the evidence of the husband of the deceased in the case referred to above is confirmed by the learned single Judge of our High Court as legitimate inference drawn from the proved facts.
15.The Division Bench of our High Court has also in the judgment reported in 2003(1) MLJ 314 (P.Kalyani Vs. The Divisional Manager, Southern Railway (Personal Branch), Divisional Office, Madras) held that the death of the railway employee as due to massive heart attack in the railway platform forming part of his work spot is nothing but an accident arising out of an employment. Similar view is also expressed in the cases decided by the learned Singe Judges of our High Court in the judgment reported in (a) 2006 (3) MLJ 982 (Chief General Manager, Thermal Power Station, NLC Ltd. Vs. G.Dhanam and others) and (b) 2009(1) MLJ 495 (National Insurance Company Ltd., Bhavani Vs. A.Saroja and other). Thus in all the cases cited above, the dictum laid down by the Apex Court, our High Court and other High Courts is that the death due to heart attack caused by stress and strain drawn due to the nature of work in the particular circumstances is death due to injury by accident in the course of and out of employment. Further the learned Single Judge of our High Court in the judgment above referred to in Nagaraj case reported in 2008 (4) CTC 407 further observed that the finding of the Deputy Commissioner that the deceased died of heart attack and death arose out of and in the course of employment is based on appreciation of evidence and finding of facts and the same cannot be questioned by invoking the power under Section 30 of the Act as no substantial question of law arises from such finding.
16.Applying the above dictum to the facts of the present case, this court has no difficulty and hesitation in agreeing with the finding rendered by the Deputy Commissioner of Labour that here is the case wherein the employee died of in the course of and out of the employment and the respondent is liable to pay compensation and the finding warrants no interference from this Court and the first substantial question of law is accordingly answered in favour of the claimants. As heart attack leading to death of the employee is held to be caused due to strenuous nature of work and is hence construed to be employment injury occurred in the accident arising out of and in the course of employment. The provisions of Sections 3(2) and 3(2)(a) of the Act relating to occupational disease are not applicable to the instant case, the second substantial question of law need not be gone into.
17.As there is no serious dispute with regard to the quantum of compensation fixed by the Commissioner, the award under challenge is to be necessarily confirmed, except with regard to the date from which the interest becomes payable. As per the judgment of the Division Bench of Madras High Court reported in 2003(1)LLJ 536 (Oriental Insurance Company Limited, Pondicherry V. Kaliya Pillai and another), the interest becomes payable after 30 days from the date of accident. To that extent the award stands modified.
18.In the result, the award dated 14.09.2004 made in W.C.No.53 of 2004, on the file of the Deputy Commissioner of Labour, Dindigul stands modified by awarding interest for the compensation amount from 30 days after the date of the accident and the award is confirmed in other respects. Accordingly, this Civil Miscellaneous Appeal is disposed of. Consequently, connected Miscellaneous Petition is closed. No costs.
ssl/gcg To The Deputy Commissioner of Labour, Dindigul.