Madras High Court
United India Insurance Company ... vs M. Veluchamy And Muthu Alagu on 29 January, 2002
JUDGMENT
1. The 2nd respondent Insurance Company has preferred the appeal aggrieved against the orders passed in W.C.No.296 of 1998 dated 27.07.2000 on the file of Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai.
2. The case in brief is as follows:- The applicant / first respondent herein filed a petition under section 22 of the Workmen's Compensation Act 1923 claiming a sum of Rs.2,00,000/= by way of compensation arising out of and in the course of employment on 13.09.1995 against two respondents. He was employed as a cleaner under the first respondent in the lorry bearing registration No. TN 57 9997. On 13.09.1995 at about 1.00 a.m. when the lorry was nearing Pallappatti Cross, the applicant has developed chest pain, due stress and strain in the work. He was admitted in a private hospital at Kodai Road. Then, he was shifted to the Joseph Hospital, Dindigul and was admitted as an in-patient. His disability was assessed at 100%. He was 35 years old at the time of accident and drawing a sum of Rs.2,000/= per month as wages and Rs.1,000/= per month as batta. The lorry was insured in the 2nd respondent Company.
3. The first respondent remained ex parte. The 2nd respondent in the counter statement contended that the applicant has to prove that he was employed as cleaner in the lorry. He must also prove that the alleged accident took place during the course of his employment. He should also prove the disablement, age, wages, etc. with documentary evidence. They also filed the additional written statement contending that the applicant was not doing any cleaner work and he was simply travelling in the lorry and the alleged stress cannot be said to have occurred arose out of and in the course of his employment as there was no accident, there was no chance to get sudden shock or mental upset. Mere travelling in a lorry by being seated in the lorry cannot be said to give any stress or strain to the petitioner and, as such, the application is liable to be dismissed.
4. P.Ws.1 to 3 were examined on behalf of the applicant and Exs.A-1 to A-6 were marked. Neither any oral evidence nor any document was filed on the side of the 2nd respondent. The authority below came to the conclusion that the 2nd respondent is liable to pay a sum of Rs.26,559/= by way of compensation to the applicant with interest at 12% per annum from the date of accident till date of deposit and aggrieved against this, the 2nd respondent has come forward with the present appeal.
5. Heard the learned counsel for the applicant as well as the learned counsel for the first respondent / applicant.
6. It is not in dispute that the 1st respondent / applicant was employed as a cleaner in the lorry belonging to the first respondent. It is also not in dispute that the lorry was insured with the 2nd respondent / appellant. On 13.09.1995 at about 1.00 a.m. when the lorry was nearing Pallappatti Cross, the 1st respondent developed chest pain and according to him, it was due to stress and strain in the work. He was later admitted in the hospital as an in-patient. He was drawing a sum of Rs.2000/= per month by way of wages and Rs.1000/= per month as batta.
7. The appellant / 2nd respondent Insurance Company contended that even assuming that the 1st respondent was employed as a cleaner in the lorry, he was simply travelling in the lorry. There was no accident on 13.09.1995and, as such, there was no chance to get any sudden shock or mental upset. It was also pointed out that mere travelling in a lorry by being seated in a lorry cannot give rise to any stress or strain to him so as to infer that he is entitled to get any compensation. Learned counsel for the appellant also contended that the authority below failed to consider that the disability, if any, was not due to any stress relating to employment in question. It is also not established that the same occurred while discharging his duties under the employment. Section 3(1) of the Act has been totally overlooked as there was no accident or any personal injury.
8. The burden is upon the first respondent / applicant to establish that there was an accident and because of the strain and stress, he had suffered the ailment and as a result of which entitled to claim the compensation. Admittedly, there was no accident on 13.09.1995. It appears that the applicant had suffered chest pain and according to him, it was because of the stress and strain. Even assuming that there was some strain in the work, in order to attract section 3(1) of the Act, there must be an accident coupled with the personal injury. But so far as this case is concerned, it has come out in evidence from P.W.3 that the applicant was already suffering from heart ailment. He was simply sitting by the side of the driver at the time of travel and this cannot be equated that his work was one of responsibilities attached with any stress and strain. If any accident had occurred at the relevant point of time and because of which he was affected with any ailment, then it can be said that he is entitled to get compensation.
9. Learned counsel for the appellant relied on the decision reported in ANANTHAMMA ..vs.. MANAGING DIRECTOR, COOPERATIVE SPINNING MILL LIMITED (2000 ACJ 166) that workman attending work in the factory gasped his breath and collapsed; circumstances of death indicative of heart failure. No case that any personal injury was caused to the deceased by an accident while discharging his duty. Whether the death arose out of and in the course of employment and the legal heirs of the deceased are entitled to compensation; it was held in the negative.
10. Section 3(1) of the Act also reads as follows:-
"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".
11. Reliance is also placed upon in SUPERINTENDENT OF MINES ..vs.. LALO DEVI (1985 ACJ 850) that Section 3(1) envisages payment of compensation only upon occurrence of actual physical accident and consequential personal injury resulting therefrom. This decision is also applicable to the case on hand.
12. Reliance is also placed on MACKINNON MACKENZIE & CO. PVT.LTD ..vs.. IBRAHIM MAHMMOD ISSAK (1969 ACJ 422) that "the expression "arising out of employment is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act". This decision is also applicable to the case on hand.
13. Learned counsel for the applicant / first respondent relied on MADRAS STATE ELECTRICITY BOARD ..vs.. AMBAZHATHINGAL ITHACHUTTI UMMA (1966 (II) LLJ 12) that if death of an employee is brought about by an injury due to some mishap, or accident, happening during the course of his employment the fact that the deceased had a chronic ailment which rendered him more susceptible to such injury than an ordinary person would be, will not defeat the right to compensation. This decision is not applicable to the case on hand.
14. The respondents also relied on NATIONAL INSURANCE COMPANY LIMITED vs.. BALAWWA AND OTHERS (1993 ACJ 815) that "the strenuous work of loading/unloading stones must necessarily have adversely affected his heart condition resulting in heart attack; if during the time when the workman was attending to his work, he goes to answer the call of nature, it cannot be said that during that short period he was out of employment". Reliance is also placed in HINDUSTAN STEEL CONSTRUCTION LIMITED ..vs.. NURAISHA KHATOON (1993 ACJ 501) as follows:-
"Section 3 of the Act is attracted not only in cases of physical accident or event happening externally to a workman but also in cases of event happening internally to a workman; such as failure of heart and the like. However, it is made clear that if a person dies a natural death then it could not be said that his death was caused out of his employment. But if a person suffering from some disease or ailment dies or receives injury while discharging his normal duty and employment is a contributory cause or has accelerated the death of the workman, then Section 3 of the Act is attracted as the death is caused by an accident arising out of and in the course of employment".
These decisions are not applicable to the case on hand since admittedly no accident took place and the employment is not a contributory cause for his ailment. I am of the view that the finding given by the authority below is not proper and correct. Simply because the applicant / first respondent was travelling as a cleaner in the lorry along with the driver, it cannot be said that there was any strain or stress and in the absence of any accident coupled with any personal injury, he is not entitled to claim any compensation and as there is misapplication of legal provision, interference is called for.
15. For the reasons stated above, the appeal is allowed and the order passed by the authority below is set aside and the petition filed by the applicant / first respondent before the authority below is dismissed. However, there will be no order as to costs. Consequently, CMP No.7304 of 2001 is closed.