Kerala High Court
The New India Assurance Co.Ltd vs Geetha on 19 May, 2025
MFA (ECC) NO.70/2024 1
2025:KER:33972
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 19TH DAY OF MAY 2025 / 29TH VAISAKHA, 1947
MFA (ECC) NO.70 OF 2024
ARISING OUT OF THE ORDER DATED 28.12.2023 IN ECC
NO.1181 OF 2016 (WCC No.37/12)OF INDUSTRIAL TRIBUNAL,
THRISSUR
APPELLANT/2ND OPPOSITE PARTY:
THE NEW INDIA ASSURANCE CO.LTD
PERINCHERY'S BUILDING ROUND NORTH,
THRISSUR -680 001, VATANAPPILLY,
THRISSUR-680 614, REPRESENTED BY ITS DEPUTY
MANAGER, REGIONAL OFFICE, M.G. ROAD,
ERNAKULAM, PIN - 682011
BY ADVS.
GEORGE A.CHERIAN
ARATHI PRABHAKARAN
GEORGE CHERIAN (SR.)
RESPONDENTS/APPICANTS & 1ST OPPOSITE PARTY:
1 GEETHA
AGED 55 YEARS, W/O LATE JANARDHANAN,
MUNDANATTU HOUSE, VENGINISSERY.P.O.,
PARALAM, THRISSUR DISTRICT, PIN - 680563
2 KAVYA
AGED 31 YERS, D/ O LATE JANARDHANAN,
MUNDANATTU HOUSE, VENGINISSERY.P.O.,
PARALAM, THRISSUR DISTRICT, PIN - 680563
3 SYAMKUMAR
AGED 23 YEARS, S/O LATE JANARDHANAN,
MFA (ECC) NO.70/2024 2
2025:KER:33972
MUNDANATTU HOUSE, VENGINISSERY.P.O., PARALAM,
THRISSUR DISTRICT, PIN - 680563
4 K.B.SHAJU
S/O.BHASKARAN, KOTTAN HOUSE,III/418,
P.O.ELTHURUTH, THRISSUR, DISTRICT, PIN - 680611
BY ADV.
P.V.CHANDRA MOHAN, R1 TO R3
THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON
27.02.2025, THE COURT ON 19.05.2025 DELIVERED THE
FOLLOWING:
MFA (ECC) NO.70/2024 3
2025:KER:33972
JUDGMENT
Dated this the 19th day of May, 2025 This appeal is filed challenging the order dated 28.12.2023 in ECC No.1181 of 2016 (WCC No.37/12) of the Employees Compensation Commissioner (Industrial Tribunal), Thrissur. Appellant was the 2nd opposite party in the ECC proceedings. Respondents 1 to 3 were the applicants and 4 th respondent is the 1st opposite party in the said proceedings. Parties are hereinafter referred to as per their status before the Employees Compensation Commissioner (ECC).
2. On 09.09.2011, at about 2 P.M., Janardhanan, who was employed as a driver in an autorickshaw bearing number KL-8/F- 5475, owned by the 1st opposite party, felt discomfort and chest pain. He contacted the 1st opposite party and sought permission to consult a doctor and take rest. However, the 1 st opposite party/ employer compelled the employee to continue his work till evening as there were no substitute drivers. Thus, while driving the auto rickshaw with passengers on board, Janardhanan collapsed, MFA (ECC) NO.70/2024 4 2025:KER:33972 became unconscious and fell out of the moving vehicle. He was immediately taken to the Government Hospital, Cherpu, where he was declared dead. The applicants who were the wife and children of late Janardhanan moved the ECC seeking compensation contending that he had died due to stress and strain of his employment, and that had the employer permitted him to consult a doctor and take rest, his life could have been saved. A crime was registered by Cherpu police with respect to the accident. Late Janardhanan was aged 53 years and was deriving a monthly wage of Rs.10,000/- at the time of the accident The applicants thus claimed a compensation of Rs.5,70,720/- from the opposite parties.
3. The 1st opposite party remained absent before the ECC and he was set ex parte. The 2 nd opposite party/ insurer contended that though they had issued a policy in favour of the 1 st opposite party covering the relevant vehicle for the relevant period, no intimation regarding the accident had been given to the insurer either by the 1 st opposite party or by the applicants. It was contended that there was no employer-employee relationship between the 1 st opposite party and the deceased and there was no causal connection between the MFA (ECC) NO.70/2024 5 2025:KER:33972 death of the deceased and his employment. It was contended that the vehicle was not having a valid registration certificate, fitness certificate and permit as on the date of the accident. It was also contended that the deceased was not having a valid driving licence to drive the vehicle. The age and wage of the deceased were also not admitted by the insurer. The 2 nd opposite party thus sought a dismissal of the application.
4. The ECC framed five issues and the parties proceeded to adduce evidence. AW1 was examined and Exts.A1 to A6 were marked from the side of the applicants. From the side of the 2 nd opposite party, Exts.R1 to R7 were marked. No witnesses were examined by the 2nd opposite party.
5. The ECC after hearing the parties and considering the evidence allowed the application and held that the applicants are entitled to an amount of Rs.5,70,720/- towards compensation along with interest and cost. Rs.20,000/- was also awarded towards funeral expenses. It was found that the 1 st opposite party being the employer of the deceased was liable to pay the said amounts to the applicants and the 2nd opposite party being the insurer was liable to MFA (ECC) NO.70/2024 6 2025:KER:33972 indemnify the 1st opposite party by virtue of the contract of insurance. The 2nd opposite party was directed to deposit the amount awarded. Aggrieved by the said order of the ECC, the 2 nd opposite party has filed this appeal.
6. The following substantial questions of law arise for consideration in this appeal:
(i) Whether the Commissioner went wrong in holding that there is an employer-employee relationship between the deceased and the 1 st opposite party?
(ii) Whether the Commissioner went wrong in holding that the deceased had an accidental death?
(iii) Whether the Commissioner went wrong in holding that the deceased died on account of the stress and strain of employment, a finding contrary to the documentary evidence?
7. Heard Sri.George A.Cherian,Senior Advocate, instructed by Smt.Arathi Prabhakaran, Advocate for the appellant (2 nd Opposite Party) and Sri.P.V.Chandramohan, Advocate for respondents 1 to 3 (Applicants 1 to 3).
8. The learned Senior Counsel appearing for the 2 nd MFA (ECC) NO.70/2024 7 2025:KER:33972 opposite party, vehemently contended that the order of the ECC is against law, facts and evidence. The ECC ought to have found that there was no employer-employee relationship between the deceased and the 1st opposite party. The ECC ought to have noted that the employer-employee relationship had been collusively pleaded only for the purpose of obtaining compensation from the insurer. The police records had revealed that the deceased had suffered a natural death and the finding of the ECC that the deceased died on account of stress and strain of employment is per se illegal and devoid of any evidence. It has been brought out in evidence that the deceased was a heart patient for the last eight years. The ECC failed to consider the medical report and the post- mortem report which evidenced that the deceased had died due to occlusive coronary artery disease of arthrosclerotic nature which is a natural disease. The ECC ought to have thus noted that the deceased had died not due to accident, but purely due to natural reasons and that the policy does not cover an employee who suffers a natural death. The finding of the ECC that the diseased died on account of the stress and strain of employment is totally lacking any MFA (ECC) NO.70/2024 8 2025:KER:33972 evidence. The ECC had not properly appreciated the documentary evidence while mulcting liability on the 2 nd opposite party Insurance Company. The learned Senior Counsel also placed reliance on the dictum laid down in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and another [(2007)11 SCC 668] and contended that there must be some evidence that the employment contributed to the death of the deceased. It is required to be established that the death occurred during the course of employment. The learned Senior Counsel pointed to the dictum in Regional Director, ESI Corporation and another v. Francis de Costa and another [(1996) 6 SCC 1], wherein a reference was made to the dictum of the House of Lords in Dover Navigation Company Limited v. Isabella Craig [1940 AC 190] that what arises 'in the course' of the employment is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to man's service, while the latter to causality. Not every accident which occurs to a man during the time when he is on his employment - that is, directly or indirectly engaged on what he is employed to do - gives a claim to compensation MFA (ECC) NO.70/2024 9 2025:KER:33972 unless it also arises out of the employment. The learned Senior Counsel also relied on the dictum of the Hon'ble Supreme Court in Mallikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Company Ltd. and another [2009 KHC 4845] wherein it was held that under Section 3(1) of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act of 1923'), it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies a natural death because of the disease which he was suffering or while suffering from a particular disease, he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But, if the employment is a contributory cause or has accelerated the death or if the death was due not only to the disease, but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable. Reliance is also placed on the victim laid down by the Supreme Court in Param Pal Singh through father v. National Insurance Company and another [(2013) 3 SCC 409] to contend that, there should be some evidence to show that the employee had MFA (ECC) NO.70/2024 10 2025:KER:33972 undergone 'grave strain and stress' due to long distance driving, like, for instance, in the said case a distance of 1152 km, which materially contributed to and accelerated his unexpected death. Such long distance driving would show that there existed a causal connection between the death of the employee and his employment. No evidence of the said nature was put forth in the case at hand. The learned Senior Counsel thus prayed that the appeal may be allowed and the impugned order of the ECC may be set aside.
9. Per contra the learned counsel appearing for the applicants contended that the Act of 1923 had been enacted to provide payment by certain classes of employers to workmen for compensation against injury by accident. The term 'accidental injury' has not been defined under the Act. The liability of the employer for payment of compensation would arise if a personal injury is caused to a workman by accident arising out of and in the course of his employment. What are necessary for attracting the charging provision contained under Section 3 of the Act is that (i) an injury must be caused to a workman (ii) such injury must have been caused by an accident and (iii) it arose out of or in the course of his MFA (ECC) NO.70/2024 11 2025:KER:33972 employment. The learned counsel placed reliance on the dictum laid down by the Hon'ble Supreme Court in M/s. Mackinnon Mackenzie & Co. Pvt. Ltd. v. Ritta Farnandes [1969 ACJ 419] and contended that if the employment is a contributory factor or has accelerated the death or if the death was due not only to the disease, but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would be liable. It had also been held therein that even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under the circumstances which can be said to be accidental, his death results from injury by accident. Based on the dictum laid down by this Court in Thengackal Estate v. Reethammal [1996 (1) KLT 528], it is contended by the learned counsel for the applicants 1 to 3 that if the facts and circumstances either admitted or proved by oral and documentary evidence in the case establish that but for the strain due to the work that the employee was doing, his unexpected death would not have occurred, then, in such circumstances, it could be clearly discerned that the strain due to work that he was doing was the cause which accelerated the employees death. MFA (ECC) NO.70/2024 12
2025:KER:33972 Such circumstances are sufficient to establish the required causal connection between the death and the employment. The learned counsel also relied on the decision in Devshi Bhanji Khona v. Mary Burno and another [1985 KLT 78], wherein it was held by this Court that the object behind the Act of 1923 being protection of the weaker section with a view to do social justice, the provisions thereof 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 subsection (1) of Section 3 of the Act has to be understood as meaning a mishap or untoward event, not expected or designed. The basic and indispensable ingredient of the accident is the 'unexpectation'. The learned counsel also contended that the first proviso to Section 30 of the Act of 1923 which confers the appellate power on this Court restricts appeals to cases where a substantial question of law is involved. It is contended by the learned counsel that no substantial question of law is involved in the appeal at hand. Placing reliance on the dictum laid down by this Court in N.L.Lalan v. V. A. John [1972 KHC 35], it is MFA (ECC) NO.70/2024 13 2025:KER:33972 contended that a question of fact however substantial cannot masquerade as a question of law and that any question of law cannot automatically be treated as a substantial one even if the amount involved is substantial or the argument pressed is vehement. The expression 'substantial question of law 'has been held in Lalan (supra), to be not new to the Act of 1923, but finds a place in Section 110 of the CPC and Article 133 of the Constitution of India. Though the meaning of the words may change depending on the context in which they occur and in the statute which uses them, even so there must be something 'substantial' about a substantial question of law. No such valid substantial question of law arises for consideration in this appeal. The learned counsel for the applicants thus prayed that the appeal may be dismissed.
10. I have heard both sides in detail and have also perused the pleadings and precedents placed before me. The moot question that comes up for consideration is whether an accident can be stated to have occurred during the course of the employment and out of the employment which led to the death of the employee and whether any substantial question of law arises for consideration on MFA (ECC) NO.70/2024 14 2025:KER:33972 the said count in this appeal.
11. It is noted that the ECC had considered the question whether there existed an employer-employee relationship between the 1st opposite party and the deceased as on the date and time of the accident in detail on the basis of the evidence tendered. It is concluded by the ECC that though as contended by the counsel for the insurer, the applicants did not produce any letter of appointment or wage slip issued by the 1 st opposite party to establish employer- employee relationship between the 1 st opposite party and the deceased, since the deceased was only an auto rickshaw driver and not a worker in a factory or commercial establishment so as to be issued with a wage slip or an identity card from the employer. It is too remote to expect that an employer like the 1 st opposite party will issue such documents to the driver appointed by him. The ECC had noted that the registration certificate of the vehicle reveals that it was an auto rickshaw owned by the 1st opposite party and the driving licence of the applicant discloses that he was authorised to drive autorickshaws during the period covering the date of the accident. The ECC also relied on the police records such as FIR and final MFA (ECC) NO.70/2024 15 2025:KER:33972 report filed before the Sub Divisional Magistrate which indicated that the applicant was a driver and that the auto rickshaw was owned by the 1st opposite party at the time of the accident. The ECC also placed reliance on the deposition of AW1, that is, the 1 st applicant, that her husband was employed by the 1 st opposite party as a driver of the auto rickshaw. Ext.R1 letter dated 11.04.2012 issued by the 1st applicant to the insurer also indicated that the deceased was a driver of the auto rickshaw owned by the 1 st opposite party. The ECC had also noted that the employer is ex parte and that the rebuttal evidence adduced by the insurer does not afford a different view regarding the employer-employee relationship. It was thus concluded by the ECC that the evidence available on record is sufficient enough to discharge the initial burden upon the applicants to establish that there was an employer-employee relationship and the insurer upon whom the burden of proof had shifted had not adduced any acceptable evidence to discharge the said burden. Thus, the ECC had concluded that there existed an employer- employee relationship between the deceased and the 1 st opposite party. The said finding is a finding that has been arrived at by the MFA (ECC) NO.70/2024 16 2025:KER:33972 ECC based on the evidence rendered and the appreciation of facts. I do not see any reason, so as to interfere with the same in this appeal.
12. Coming to the crucial question whether the deceased had a pre-existing cardiac illness and whether he died due to the above disease and not due to the strains of the employment, it is noted that the ECC had appreciated the evidence tendered by both sides in the said respect in detail. The ECC had taken note of the evidence that had been put forth which revealed that the deceased had been taking medicines for cardiac illness for around 8 years prior to his death and that there is sufficient evidence available on record to indicate that the deceased had pre-existing cardiac illness as also had suffered a heart attack earlier. The ECC then proceeded to consider whether the deceased died only on account of his pre- existing illness or whether there was any causal connection between his employment and his death. The ECC has noted the definite case of the applicants that the deceased had felt physical discomfort and chest pain in the noon and he had sought permission from the employer to consult a doctor. The permission was denied by the MFA (ECC) NO.70/2024 17 2025:KER:33972 employer since there was no other driver to substitute and hence as deposed by AW1 in the cross-examination, the deceased had come to the house in the noon for having lunch and he had complained about physical discomfort. AW1 had also deposed that the deceased had made a phone call to the employer and thereafter he left the house with the auto rickshaw for the trip. The report filed by the police after conducting the investigation had revealed that Janardhanan had collapsed while driving the auto rickshaw with passengers onboard. The ECC thus concluded that the evidence available on record clearly indicates that the deceased with discomfort and chest pain was compelled to drive the vehicle with passengers and while driving the vehicle his illness got aggravated due to stress and strain of driving the vehicle which resulted in his death. The ECC had also concluded that had the applicant abstained from driving the vehicle and consulted a doctor in the noon itself, no accident would have happened and his life would have been saved. Thus the specific finding of the ECC as revealed from the impugned order is that the deceased who had a pre- existing illness had suffered the death in the course of his MFA (ECC) NO.70/2024 18 2025:KER:33972 employment only because of the strain of driving, strain of his employment that is driving an auto rickshaw notwithstanding the physical discomfort that he had been feeling earlier in the day. The above finding had been arrived at unequivocally by the ECC, based on an appreciation of the evidence produced before it. It is not for this Court to re-appreciate the evidence and arrive at a different conclusion and to substitute or supplant the same for the factual conclusion arrived at by the ECC.
13. As laid down by the Hon'ble Supreme Court in Mackinnon Mackenzie (supra), if a workman dies from a pre- existing disease, if the disease is aggravated or accelerated under the circumstances which can be said to be accidental, his death can only be termed as resulting from an injury by accident that has occasioned in the course of his employment. As held by the Hon'ble Supreme Court in Shakuntala Chandrakant Shreshti (supra) the factors which are to be established in cases of this nature to prove the accident that have taken place in the course of employment and out of the employment inter alia are (i) Stress and strain arising during the course of employment, (ii) Nature of employment, and (iii) MFA (ECC) NO.70/2024 19 2025:KER:33972 Injury aggravated due to stress and strain. Driving an auto rickshaw is a strenuous job. Sufficient evidence was available before the ECC to show that the deceased, a heart patient who had earlier suffered a heart attack and was hence on medication for the said ailment, had been driving an autorickshaw. Circumstances exist and had been established by evidence before the ECC that the death was caused by reason of failure of heart in the course of employment. The pre-existing illness had been aggravated because of stress and strain of work. There was thus a causal connection between the injury and the accident and the work done in the course of the employment. The onus was there upon the applicants to show that it was the work and the resulting strain which contributed to or aggravated the heart ailment leading to death had been reliably discharged and the burden had thus shifted on to the insurer to prove the contrary. The said burden has not been discharged by the insurer. The evidence brought on record had sufficiently established that there existed a greater probability which satisfies a reasonable man that the work contributed to the causing of the strain and consequent death. This by itself is sufficient for the applicants to MFA (ECC) NO.70/2024 20 2025:KER:33972 succeed in the claim.
14. In Lalan's case (supra) this Court has succinctly summed up the the scope of and the approach to be adopted while considering appeals arising under the Act of 1923 as follows:
"The Act with which I am concerned relates to workers, and the entire purpose of the statute is to see that the weaker section of the community, namely, the working class, is not caught in the meshes of litigation which involves a protracted course of appeal. That is why the statute creates a special Tribunal and provides only for a restricted appeal The benignant object of saving the worker from long and expensive litigation would be defeated if a loose interpretation were to be given to the proviso under Section 30 and all kinds of appeals, merely because there is some point which has the look of law, are admitted. A highly restrictive meaning has to be imported because of the very legislative purpose and the class of litigation covered, even apart from the drastic expression used in the proviso. In this context, Part IV of the Indian Constitution serves as a perspective while construing the Workmen's Compensation Act. May be that pre-Constitution statutes were interpreted in a particular way by Courts on certain assumptions of the State's functions at that time. Today it is absolutely plain that the Directive Principles of State Policy, though not enforceable by a Court, are nevertheless fundamental in the governance of the country, and must inform the judicial mind when interpreting statutes calculated to promote the welfare of the working class. In fact, Article 42 enjoins upon the State to make provision for securing just and humane conditions of work and Article 43 compels the State to endeavour to secure, by suitable legislation, to all workers conditions of work ensuring a decent standard of life. Indeed, the spirit of Part IV of the Constitution must colour the semantic exercises of the judiciary when applying the provisions of the Workmen's Compensation Act. If that be the approach to be made, I am clear in my mind that the argument that the proviso to MFA (ECC) NO.70/2024 21 2025:KER:33972 Section 30 has been interpreted liberally in the pre- Constitution days is of no significance. The same words, with socio-economic developments in society, acquire a new emphasis in tune with the changed conditions. It is clear therefore, that the dynamics of legal interpretation based on social changes which have taken place in the nation's life and goals demand that I should construe the proviso to Section 30 so as to inhibit appeals at the instance of employers even if there be some questions of law or gross errors of fact, unless very substantial legal issues arise. Therefore, I find it difficult to agree with counsel for the appellant that misappreciation of or absence of evidence vitiating the order under appeal, even if true, can be brought within the scope of the proviso to Section 30 or can be exaggerated into a substantial question of law. At the Commissioner's level most such employer-employee questions, legal or factual, must end, appeals being open in a very limited category. The proviso to Section 30 vis-avis the employer and his right of appeal reminds me of the biblical allusion to the camel and the eye of a needle. The appeal has thus to be disallowed."
15. In the light of the above discussion, I conclude that no cause has been made out to interfere with the findings of the ECC in the order impugned. No substantial question of law is made out in the Appeal.
MFA (ECC) is dismissed. No costs.
Sd/-
SYAM KUMAR V.M. JUDGE csl