S. Manikumar, J.@mdashBeing aggrieved by the finding rendered by the Commissioner for Workmen''s Compensation, Coimbatore, holding the management, Pachamalai Estate, Valparai, Tamilnadu, to pay compensation to the wife of a Field Executive, said to have suffered a heart attack and died arising out of and during the course of employment at Pachamalai Estate, the appeal has been filed. According to the respondent/wife, her husband was a Workman employed as a Field Executive in South Division of Pachaimalai Estate. On 19.07.2004, he attended the work in South Division for allocation of works to the workers and then went to the plucking field No. 6 at 7.00 a.m. Thereafter, he went to the Manuring field No. 8, about 7.40 a.m. In both fields, he had allocated the works to the workers and instructed the supervisors, about the day-to-day performance of the routine work.
2. According to the respondent/claimant, both field Nos.6 and 8 are situated in the highest elevated peak areas and therefore, her husband had to walk to the above said areas. She has further submitted that when he came back to the Estate office between 8.15 to 9.15a.m., to get instructions from the Manager, again, he had returned to field No. 6 and 8, to give some specific instructions to the supervisors engaged in plucking and manuring fields. While he was walking upwards to these fields, he had sweating, giddiness and pain and sat on the field. He had also vomited. After a few minutes, he was rushed to Pachamalai Hospital, which is about 2 kms from the work spot. On the way to the hospital, he had vomited and only a nurse was present in Pachamalai Hospital and no medical officer was available. Therefore, he was rushed to Central Medical Hospital to Urlikkal Estate, which is situated about 15 kms from Pachamalai Estate. Due to non availability of an ambulance owned by the Estate, her husband was forced to travel in a car. On the way to Urlikkal from Pachamalai Estate, he became unconscious. Therefore, he was taken to Government Hospital at Valparai, where the Doctor (incharge) informed that her husband was very in a serious condition and advised specialised treatment and thereafter, he was taken to Urlikkal Hospital and on the way, he died.
3. According to the respondent/claimant, the accident arose out of and during the course of employment. It is her further contention that if adequate and timely treatment had been given, her husband could have been saved. It is also her contention that the cause of death was due to stress and strain, arising out of employment and as a Field Officer, the nature of the duties involving supervisory, skilled and manual also contributed to his death. According to the respondent/claimant, at the time of death, the monthly wages of her husband was Rs. 7,499.77. He was aged 46 years. Notice of the accident was served on 21.07.2004. She claimed compensation of Rs. 3,32,580/-
4. The appellant / Management in their counter affidavit has submitted that u/s 3 of the Workmen''s Compensation Act, only if personal injury is caused to a workman in an accident, arising out of and in the course of his employment, his employer shall be liable to pay compensation under the provisions of Workmen''s Compensation Act. It is their further contention that in order to attract the provisions, two conditions must be satisfied. First is there should be an accident involving the deceased or injured and the second is that the accident should be arising out of and in the course of employment.
5. The appellant/management has further submitted that the death of the husband of the respondent/claimant due to acute myocardial infraction was not as a result of any accident, and it was due to normal cause. It is their further contention that the accident also did not happen, out of the employment of the deceased.
6. Further at paragraph No. 3 of the counter, the appellant/management has stated as follows:
Late ManoharRaj Kumar, was employed as a Field Officer in the Pachimallai Estate. He was brought to the estate hospital on 19.07.2004 at 10.20 A.M., with the history of severe chest pain and breathing difficulty. Patient was restless drowsy and profusely sweating. As the patient entered the hospital, he suddenly collapsed became unconscious and was gasping. Necessary CPR (Cardio Pulmonary Resuscitation) was done and the patient was immediately transported by their own vehicle in a gasping state with continuous CPR measures to the Central Hospital, Urailikkal. On the way, he was taken to Government Hospital, Valparai where he was declared as brought dead by Easwaramoorthy, Medical Officer to the Pachaimalai Estate declared the cause of death as acute myocardial infraction. From the above it is clear that the deceased had a natural death and his dependants are not entitled to claim compensation under the provisions of the Workmen''s Compensation Act.
In view of the above, the management has submitted that the deceased had a natural death and therefore, the dependants are not entitled to the compensation under the Workmen''s Compensation Act.
7. According to the appellant/management, on the fateful day, the nature of work performed by the deceased was only his regular work attached to the post of Field Executive in the appellant Estate and that there was nothing unusual. According to them, the nature of employment was not a contributory factor to the cause to death. No stress or strain is involved in the work. There was no causal connection between the death of the deceased and the employment with the opposite party. He also submitted that there was no history of any previous heart disease and in such circumstances, there is no acceleration of the disease, pre existing by virtue of his duties. Myocardial infraction may be due to various reasons and it is the specific stand of the appellant/management that the employment under them is not the cause for myocardial infraction. Without prejudice to the above, appellant/management disputed the age, wage of the deceased and the quantum of compensation claimed.
8. On the above said pleadings, the Commissioner for Workmen''s compensation, Coimbatore, has framed two issues for consideration, which are as follows:
1. Whether the deceased G. Manohar Rajkumar died, during the course of employment?
2. The extent of compensation to be awarded to the claimant, under the provisions of W.C. Act, 1923?
9. Before the Commissioner for Workmen''s Compensation, Coimbatore, AW1, wife of the deceased has been examined. On her behalf she had marked Ex.P1, notice dated 21.07.2004 addressed to the opposite party. Ex.P2 series are the true copies of death and legal heir certificates. Ex.P3 is the salary certificate for July 2004. Two witnesses on the side of the appellant/management have been examined. They were MW1 - Doctor and MW2 - Assistant Field Officer. On behalf of the appellant / management, Pachamalai Estate Hospital Family Book, has been marked.
10. The Deputy Commissioner for Workmen''s Compensation, Coimbatore on appreciation of oral and documentary evidence answered the issues in favour of the respondent / claimant and awarded compensation of Rs. 3,35,080 with interest at the rate of 12% per annum, from the date of claim.
11. Being aggrieved by the award, the appellant/management has preferred this present appeal. On the above said facts, and inviting the attention of this Court to the oral testimony of MW1, Medical Officer of Pachamalai Estate, Mr. M. Vijayan, learned counsel for the appellant/management submitted that when the main work of a Field Officer is only supervisory in nature, it cannot be said that there was a causal connection to the natural work, which contributed to myocardial infraction and when there was no previous history of heart attack or heart disease, in the case of sudden heart attack, it cannot be said that there was a causal connection between heart attack and the duties, which the deceased was performing on the fateful day.
12. According to the learned counsel for the appellant / Management, the tribunal has failed to consider the above said vital aspects which are substantial questions of law, to be adjudicated in this appeal. He also submitted that the onus is on the respondent / claimant to show that it was the work and the strain, which contributed myocardial infraction. He further submitted that the deceased had a natural death and that there was no connection with his employment, in the estate.
13. Per contra, inviting the attention of this Court to an unreported judgment in Management of Pachamalai Estate, Valparai vs. Smt. Mani in LPA No. 81 of 2002 dated 08.09.2006, Mr. N.G. Prasad, learned counsel for the respondent submitted that the finding recorded by the Commissioner for Workmen''s compensation, that because of the strenuous nature of the work, the workman suffered myocardial infraction is purely a finding of fact, reached on material on record, and it is not on the basis of surmises and conjunctures.
14. In this context, he invited the attention of this Court, to the oral testimony of the respondent/claimant, about the nature of the duties performed by a Field Officer, in the appellant estate. He further submitted that when a finding is recorded by the learned Commissioner for Workmen''s Compensation Act, as regards the nature of work and as to whether a workman had suffered a heart attack on account of the stress and strain, arising out of and during the course of employment, such findings are not open to challenge, unless perversity is apparent on the face of record and an appeal u/s 30 of the Workmen''s Compensation Act, itself is not maintainable in law. According to him, when the commissioner for Workmen''s compensation, on the basis of the material on record has found that there was a causal connection between the nature of work and the attack suffered by the workman, it is not open to the appellant to assail the same, as if it was a case of no evidence.
15. Learned counsel for the respondent/claimant submitted that all the grounds raised in the memorandum of appeal do not deserve any consideration in view of the well considered order of the Commissioner under Workmen''s Compensation Act. For the above said reasons, he prayed for dismissal of the appeal.
16. Heard the learned counsel for the parties and perused the materials available on record.
17. Before adverting to the facts of this case, this Court deems it fit to extract certain provisions of the beneficial Legislation, Workmen''s Compensation Act (Act 8 of 1923).
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:
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 workman for a period exceeding 1 [three] days;
(b) in respect of any 2 [injury, not resulting in death 3 [or permanent total disablement] caused by] an accident which is directly attributable to-
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman
Let me also consider some of the decisions dealing with payment of compensation under the above said Act.
18. In Regional Director, ESI Corporation Vs. Francis De Costa, reported in AIR 1997 SC 432 : (1996) 6 SCC 1, the Supreme Court at paragraph Nos. 5 to 29 held that an employee/the legal representatives, in order to succeed in the claim will have to prove that the injury that the Workman suffered arose out of and was in the course of employment. The conditions set out in Section 3 of the Act have to be fulfilled before the employee/the legal representatives could claim any benefit under the Act.
19. In Management, Hindustan Aeronautics Ltd., Vs. M.S. Bhagya, reported in 1999(4) LLN 303, the Karnataka High Court, at Para 5 of the judgment held that the burden is cast on the claimant to establish that there must be a causal connection between the death of the workman and his employment. The Court further held that there must be evidence on record to establish that the workman died on account of the work, he was carrying on and if the death had taken in the normal course of way, automatically, it goes to show that there was no connection between his death and employment.
20. In State of Madhya Pradesh vs. Ram Lakhan Lodhi, reported in 2000(1) LLN 580, following a judgment in Sourashtra Salt Manufacturing Company Vs. Bai Vahu Raja [AIR 1959 SC 881] and Regional Director, ESI Corporation Vs. Francis De Costa [(1996) 6 SCC 1], a Division Bench of Madhya Pradesh High Court has held that there must be a causal connection between the accident and employment.
21. In the New India Assurance Co. Ltd., Vs. Sarasu and others, reported in 2005 (3) MLJ 146, the respondents 1 to 3 therein, made a claim for compensation u/s 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, the Commissioner for Workmen''s Compensation, found that the workman died on account of heart attack, which occurred during the course of his employment while he was working as a driver.
22. The appellant Insurance Company therein challenged the verdict on the following substantial questions of law.
1. Whether the death is contacted in the course of and arising out of employment u/s 3 of the Workmen''s Compensation Act?
3. Whether the stress or strain of the job undertaken in the course of employment was the reason for development of the decease in connection with the employment according to Section 3 of the W.C. Act?
4. Whether the stress or strain has aggravated the disease and falls under Sec. 3 of the W.C. Act?
5. Whether the disease and the resultant death was connected with the employment?
6. Whether the disease is the wear and tear of his employment?
7. Whether the employment contributes to the course of acceleration of death and that the death is due not only to the disease but the disease coupled with employment?
23. However, learned counsel for the appellant therein, restricted his arguments only with reference to the question whether the Deputy Commissioner of Labour, Salem was justified in coming to the conclusion that the driver died of heart attack during the course and arising out of employment and that the said condition would not fall under the ambit of employment injury, resulting to death. Testing the correctness, this Court, at para No. 6, held as follows:
On a perusal of Section 3 of the Workmen''s Compensation Act, we find that the word "accident" employed in Section 3 of the Act must be interpreted as any untoward incident or any unexpected accident taking place during the course of employment. As noted earlier, the Commissioner has recorded a finding that the workman developed severe chest pain while he was discharging his duty and having been informed of the same, the co-driver rushed him to the hospital, where he was pronounced dead. The said finding recorded by the Deputy Commissioner of Labour, Salem is purely a question of fact. We do not find any error in the said finding recorded by the authority, which calls for any interference by us in this appeal in exercise of our power u/s 30 of the Act. Therefore, we will have to proceed on the basis that the workman died on account of heart attack suffered by him in the course of his employment.
24. Further, considering the question as to whether, heart attack suffered by the deceased would be considered as a personal injury suffered by a workman, on account of and in the course of employment, a learned single judge of this Court, after referring to Section 3(1) of the Act, held as follows:
From a reading of Section 3(1) of the Act, it would emerge that an employer is liable to pay compensation in accordance with the provisions of the Act, to a workman if such workman suffers from personal injury by an accident arising out of and in the course of employment. Therefore, the question is, what should be the attached or given to the words "personal injury caused to a workman by an accident.
25. In the judgment cited supra, this Court has also considered a similar issue, which came up before the Division Bench of Karnataka High Court in The Divisional Controller, North Vs. Sangamma And Ors, reported in 2005 ACJ 455, wherein the Division Bench held as follows:
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.
26. In
6. u/s 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as a natural result 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.
27. In Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and Another, reported in AIR 2007 SC 248 : 2007 (7) MLJ 615 : 2007-1-L.W. 897, the Supreme Court affirmed the legal principles enunciated in the leading case of Francis De Costa''s and set out the principles of law to be applied in the matter of compensation under Workmen''s Compensation Act. In the above reported judgment, a cleaner of a vehicle, who was travelling in it, suddenly developed chest pain and was admitted to a Government Hospital. Inspite of intensive treatment, he died in the hospital. Mother of the deceased filed a claim petition under the Workmen''s Compensation Act, before the Commissioner for Workmen''s Compensation. The only evidence which was brought on record by way of deposition of the mother of the deceased was that her son died while working in the vehicle of the Respondent No. 1 and due to the strain of work, he died. The driver of the vehicle deposed that the deceased, while getting down from the said vehicle, got pain in the chest and was taken to the hospital. The Doctor certified that the cleaner died due to cardiac attack. The Insurance Company raised plea of collusion between the employer and the mother of the employee. The Commissioner of Workmen''s Compensation passed an award in favour of the claimant. On appeal, the High Court opined that the findings of the Commissioner for Workmen''s Compensation were perverse and inconsistent with the material on record. On further appeal, the Supreme Court, upon consideration of various decisions and in particular, the leading case reported in Regional Director, ESI Corporation and another v. Francis D. Costa and another reported in 1996 (6) SCC 1, formulated the following guidelines in the matter of a claim, under the Workmen''s Compensation,
28. There are a large number of English and American decisions, some of which have been taken note of in ESI Corporation (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 for the workman to succeed, but the same would depend upon the fact of each case.
29. 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.
30. There is a crucial link between the causal connections of employment with death. Such a link with 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.
31. 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.
32. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:
1. stress and strain arising during the course of employment, 2. nature of employment, and 3. injury aggravated due to stress and strain.
33. The deceased was travelling in a vehicle. The same by itself can not give rise to an inference that the job was strenuous.
34. Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf.
35. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefore can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor.
36. Only because the cause of death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting in injury.
37. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well-settled that for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question.
38. Section 30 of the said Act postulates an appeal directly to High Court if a substantial question of law is involved in the appeal.
39. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain..........................................................................there has to be an proximate nexus between cause of death and employment. A stray statement made by Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination.
40. This vital aspect of the matter was required to be considered by the High Court so as to arrive at a finding as to how the said accident has arose or not.
41. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record."
41. In Oriental Insurance Co. Ltd. Vs. Tmt. Chinnapillai, reported in 2007 (6) MLJ 1216: 2007(4) LW 355, a learned single Judge of this Court, at paragraph No. 8 of the judgment, held as follows:
8. To invoke the provisions of Section 3 of the Workmen''s Compensation Act, there must be an injury caused to the workmen, and such injury must be caused by an accident which arose out of and in the course of employment. In the claim petition, it was only stated that the deceased workman died due to stress and strain of the work. However, there is no material to show that the deceased suffered stress and strain in the course of employment and in any event the claimant has not brought on record any material to show that by the nature of work in plucking tea leaves on the fateful day there was stress and strain which caused the death. No evidence was let in on behalf of the claimant on this aspect. The claimant did not choose to examine a co-worker of the deceased to show that there was stress and strain in the nature of work performed by the deceased on the fateful day. Merely on the basis of the pleading, the Commissioner for Workmen''s Compensation and Deputy Commissioner of Labour came to the conclusion that there is a link between the death and the employment. The finding is based on no evidence and there is no material to support such finding. The claimant has failed to establish that there was an injury caused to the workman and such injury was caused by an accident which arose out of and in the course of employment.....
42. In Oriental Insurance Co. Ltd., Chennai Vs. Saraswathi and Another reported in 2008 (5) MLJ 1480, an employee engaged in trimming and plucking tea leaves, during the course of her employment suffered sudden heart attack and on the way to hospital, she died. Husband and daughter claimed compensation under the Workmen''s Compensation Act. Denying the accident at the work place, Management opposed the claim. It was also contended that death due to heart attack was not due to any accident, in the course of employment. In the said judgment, the learned counsel for the above employer, placing reliance on Shakuntala Chandrakanth Shreshti''s case, has submitted that in the absence of any material establishing any causal connection between the accident and the nature of the work, compensation amount ought not to have been paid. However, placing reliance on a decision of the Kerala High Court in United India Insurance Company Ltd., Vs. Gopala Krishnan reported in 1989 LLJ Vol.II 30, the Commissioner for Workmen''s Compensation Act, held that the nature of work itself would cause great strain to the employee.
43. Having regard to the dictum laid down in
5. 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 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 claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.
44. Having regard to the nature of work engaged viz., trimming and plucking of tea leaves in the tea estate, which involves hilly terrain area where manual and physical labour is employed, this Court at paragraph No. 13, in
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.
45. While considering, whether a finding recorded by the Commissioner under the Workmen''s Compensation Act, based on appreciation of evidence that an employee, died out of heart attack, arising out of and in the course of employment could be challenged in an appeal u/s 30 of the Act, in National Insurance Co., Bhavani, Vs. A. Saroja and others reported in 2009 (1) MLJ 495, this Court considered a case, wherein the claimants were wife and daughters of the deceased, who was employed as a cleaner-cum-driver in a transport Company. While proceeding to Kerala, the lorry was stopped and the employee suffered a severe heart pain and vomited. He was rushed to hospital, wherein, he was pronounced dead. The relationship of employee and employer was disputed. It was also submitted that death due to heart attack, was due to pre existing ailment or decease and it was not out of natural cause. The Commissioner for Workmen''s Compensation Act, arrived at a conclusion that the death occurred during the course of employment. Assailing the award, employer preferred an appeal, and this Court, framed the following Substantial questions of law for consideration
1. Has not the Commissioner for Workmen''s Compensation (Deputy Commissioner of Labour) Salem misdirected itself in law in assuming a jurisdiction which was not vested under the law in respect of the occurrence of the death which was not duly established as having taken place due to the employment injury and in the course of employment thereby mulcting the appellant- Insurance Company for payment of compensation?
2. Has not the Commissioner for Workmen''s Compensation misdirected itself in law in entertaining the claim petition when there was nothing on record to show that the death was as a consequence of employment injury nor was it established that there was any nexus between the employment in relation to the nature of work in that the death had occurred only due to the course of travelling as a coolie and when it was also not established that the chest pain and the subsequent death due to the aftermath of strain in the work?
46. After considering a catena of decisions and in particular, a decision of this Court in
20.....Even an ordinary strain in given circumstances of the case would be enough to cause the injury or death which is found to be in the course of and out of employment, it has to be held that the claimant is entitled for the compensation. The claimant is expected in law to show that the workman suffered injury or death due to strain and stress drawn from the work which in particular circumstance was sufficient to cause injury or death and unlike in a criminal case it is enough to show the preponderance of probabilities which would form a premise that the claimants version is probable. It is not necessary to prove that the injury or death was caused by the stress and strain beyond any doubt but it must be shown and the materials brought before the court shall be, to the satisfaction of the Court.
On the facts and circumstances of the case in A. Saroja, reported in 2009 (1) MLJ 495, the learned Judge, at paragraph No. 21, further held that
21. Even though there is no plausible medical evidence to portray 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. There is nothing before this court to infer that there was an error apparent on the face of records so as to lead the Commissioner to commit the jurisdictional error while exercising his powers and the provisions of the Act.
47. In Bhaskar Vs. G. Selvaraj and others reported in 2009 (7) MLJ 1954:2009-4-L.W. 600, parents of the deceased employee, sought for compensation. Though on the facts of the above case, a learned Judge held that the claimants had not established that they were depending on the income of the deceased either in whole or in part, to make themselves entitled to claim compensation under the Workmen''s Compensation Act, for the death of the deceased, on the aspect as to whether, a finding of fact would assume the character of substantial question of law and at para 20, held as follows:
20. At the outset it may look like a pure question of fact in which this court cannot interfere in exercise of its appellate powers u/s 30 of the Workmen''s Compensation Act. However, it has been repeatedly held in a number of cases that a question of fact will assume the character of a substantial question of law if the finding is perverse. If a finding of fact is based on no evidence or based on inadmissible evidence alone or on the basis of the evidence, no reasonable person would have arrived such a conclusion, then such finding, though a finding of fact, shall be elevated to the level of a substantial question of law.
48. In an unreported judgment in Management of Pachamalai Estate, Valparai Vs. Smt. Mani in LPA No. 81 of 2002 dated 08.09.2006, a Division Bench of this Hon''ble Court, tested the correctness of an award passed by the Commissioner of Workmen''s Compensation Act, in a claim petition u/s 10(1) of the Workmen''s Compensation Act. In the Letters Patent Appeal, it was contended inter alia by the Management that there was no causal connection between the nature of employment and the death of the employee. On the other hand, the claimants contended that the deceased was engaged in the work relating to trench canal cutting work, which required constant bending and has to be performed with the help of an instrument and the nature of work, itself was such that, it was hard and strenuous and it had contributed strain and stress on the deceased, which accelerated his death and therefore awarded compensation. The learned Single Judge, who confirmed the decision of the Commissioner for Workmen''s Compensation relied on the following decisions, which are worth reproduction.
(i) In
(ii) In
(iii) It has also been held in
(iv) A Division Bench of Gujarat High Court in the decision of
The sudden collapse of the worker after he suffered this injury resulting in his chest pain was clearly the result of his work connected with the work he was doing. In fact, this was a clear case where the old age got coupled with the employment and, therefore, the employment was a contributory cause and the causal connection being established, the conclusion was inescapable that the accident arose out of and during the course of the employment.
Unless there were circumstances to the contrary, it would be justifiable to resume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time, and it would also be natural to presume that if such work involved some strain, the disease, infirmity or old age, that was existing was likely to contribute to or accelerate the death. In such cases,
the pre-existing disease, infirmity or old age is the pre-disposing factor which will supply the necessary causal link to make this a work connected injury, if death takes place while the workman is engaged in his normal work.
49. After considering the law laid down by the Supreme Court in Regional Director, ESI Corporation Vs. Francis De Costa [cited supra] and on the facts and circumstances in Smt. Mani''s case, on appeal, the Division Bench, at paragraph No. 13 held as follows:
....In the present case, however, the Commissioner for Workmen Compensation and the learned Single Judge have come to the conclusion that because of the strenuous nature of the work, the workman suffered heart attack. This essentially is a finding of fact based on some material on record and it cannot be said that such finding is based on surmises and conjunctures or there is absolutely no evidence in support of such conclusion. An appeal u/s 30 of the Workmen Compensation Act can be considered only if there is a substantial question of law. Since, in the present case, the conclusion is based on some materials on record and the Commissioner for Workmen Compensation and the learned Single Judge have concurrently come tot he factual conclusion that the death was on account of accident arising out of and in the course of employment, we are not inclined to take any different view of the matter.
50. The Division Bench at paragraph No. 14, further went on to hold that "obviously the Court is required to find out on the basis of materials on record, whether there was any causal connection between the nature of work and the disease suffered by the workman. Obviously, any conclusion has to be arrived at on the basis of evidence on record, and it cannot be laid down as an universal principle that in every case of death of employee during working hours was on account of heart attack and that, the accident arose out of and in the course of employment."
51. Reverting back to the case on hand, let me now consider as to whether the respondent/claimant has established that the employee had suffered an heart attack, during the course of his employment and satisfied the conditions,
1. stress and strain arising during the course of employment
2. nature of employment
3. injury aggravated due to stress and strain
52. As stated supra in
53. Let me now consider the evidence on record in the instant case. There is no dispute, that at the time of accident, the employee was a Field Officer in South division of Pachamalai Estate. There is also no dispute, that both filed Nos. 6 and 8 were situated in the elevated peak areas and as a Field Executive, he had to walk or climb upwards and downwards to the estate office. It is also admitted by the respondent that the nature of work performed by the deceased on the fateful day was his normal routine duties. Death due to myocardial infraction is also not disputed. However, according to the Management, there was no strain and stress involved in the nature of the work.
54. As stated supra, even trimming and plucking of leaves in hilly terrain areas involved stress and strain, as observed in Smt. Mani''s case [cited supra]. Certainly a Field Officer, is expected to allocate the work to those who are involved in plucking and trimming and other such activities, which includes, supervision of their day today performance and that he has to walk to the areas, situated in higher elevations. At times, as a Field Officer, he may have to even be present at the site to give specific instructions to those who are employed in plucking, trimming and manuring fields. Hence, on the facts and circumstances of the case, this Court is of the view that the work of a Field Officer or Field Supervisor, has to allocate and supervise the work, assess the day today performance, and the same cannot be said to be a light work, where there would not be any stress and strain or for the matter, it was only a routine and normal work, where there is no likelihood of any personal injury arising out of and in the course of employment. There may not be any history of previous heart disease or acceleration to any pre existing disease. Nevertheless, as per the decision in Shakunthala''s case [cited supra] it should be the endeavour of the Commissioner for Workmen''s Compensation Act and the Courts dealing with a claim petition u/s 10(1) of the Workmen''s Compensation Act to see as to whether there is some evidence let in by the injured / legal representatives of the deceased employee, that the nature of employment contribute to the death of the deceased and it is also required to establish that the death occurred during the course of employment.
55. It is the case of the respondent that on 19.07.2001, on 7.00am, the deceased, went to field Nos.6 and 8, gave instructions to the supervisors, returned to the estate office, between 8.40am and 9.15am, obtained certain instructions from the Manager and again returned to field Nos. 6 and 8 to give some more instructions to the employees engaged in plucking and manuring fields and that while he was working in those fields, he got sweating and giddiness, sat on the field and started vomiting. When he reached the field, a co-worker took him to Pachamalai hospital and as no medical officer was present, he was referred to the Central Medical Hospital, Urlikal Estate situated, about 15 Kms away from Pachamalai Estate. It is also the specific case of the respondent/claimant that field Nos.6 and 9 were situated in Hilly terrain areas. The evidence, as extracted in the award is reproduced hereunder.
56. Perusal of the award also shows that though the deceased suffered myocardial infraction, he had to travel in the hilly area, for about 18 kms from Pachamalai Estate to Central Hospital, Urlikkal. The nature of the duties attached to a Field Officer, engaged in hilly terrain areas and the testimony of the claimant / respondent establish that there was a causal connection between the injury and the accident and the work done in the course of employment. The claimants have also established that the work involved stress and strain. There is a clear link between the causal connection of employment with death and that the evidence brought on record establish probability. The finding of fact arrived at by the Commissioner for Workmen''s Compensation Act, cannot be said to be on the basis of surmises and conjunctures.
57. Material on record also do not lead to any conclusion that there was no evidence or perversity in the finding and that the statutory authority had committed any jurisdictional error in awarding compensation. As observed by the Supreme Court in Shakunthala''s case [cited supra], respondent/ claimant has satisfied the three important factors, viz.,
1. stress and strain arising during the course of employment
2. nature of employment
3. injury aggravated due to stress and strain
58. For the reasons stated supra, the substantial questions of law are answered in negative against the appellant. Hence, the appeal is dismissed. No costs. The respondent/claimant is permitted to withdraw the amount deposited with the Commissioner for Workmen Compensation Act (Act 8 of 2003) after furnishing necessary applications.
