V. Dhanapalan, J.
1. National Insurance Company Limited, Salem, (hereinafter referred to as 'the Insurance Company') who was the third opposite party before the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour, Salem Region (hereinafter referred to as 'the Commissioner') and P. Mathiyalagan, the owner of the auto in question, who was the first opposite party before the Commissioner, are the appellants herein and they have challenged the order of the Commissioner made in W. C. No. 44 of 1995 dated 04.07.1997.
2. In respect of death of one Periyannan, his wife and minor children along with his parents, have filed a petition for compensation under the Workmen's Compensation Act, 1923 (hereinafter referred to as ' the Act') for a sum of Rs. 1 lakh. In support of their claim, the wife of the deceased was examined as P.W.1 and one R. Ganesan, a co-auto driver was examined as P.W.2 besides marking Exs. A.1 to A.5. On the side of the first and second opposite parties who are the first and second appellants herein, they themselves were examined as witnesses and on behalf of the Insurance Company who is the second appellant herein, the Assistant Administrative Officer, looking after the vehicle insurance claim was examined as witness and no document was filed on the side of the respondents.
3. According to the respondents/applicants before the Commissioner, one Periyannan, the husband of the first applicant was employed as a driver of the auto bearing Registration No. TN27 A 0029 owned by the first opposite party which is controlled by the second opposite party. On 15.12.1993, when the deceased was driving the auto near Seerangapalayam Road, he suffered severe chest pain and due to that, he lost his control and the auto was upset and he was immediately taken to Dr. Krishnamurthy. After check up, the doctor informed that he was dead and it is therefore, according to the respondents/applicants, the deceased died due to chest pain which arose out of and in the course of his employment with the first opposite party. The deceased was aged 35 years at the time of accident and he was paid wages of Rs. 1,500/- per month based on which, the applicants have claimed a compensation of Rs. 1 lakh for the death of the bread winner of their family.
4. On the other hand, the first opposite party before the Commissioner filed a counter and contended that:
a. he is the owner-cum-driver of the auto and he never engaged anybody to drive the auto for hire or any other purpose and he did not know the deceased and he never engaged him as a driver and as such, the deceased was not a driver working under him and the second opposite party was not controlling the auto in question
b. the deceased was driving the auto belonging to him on 15.12.1993,
c. it is not correct that the deceased got severe chest pain due to which he lost his control and the auto was upset and he was taken to hospital for treatment,
d. it is true that the applicants have sent a registered notice but absolutely, there is no merit in the notice and therefore, he has not given any reply to that notice and he never agreed to settle the matter as contended by the applicants and he therefore, he denied the very accident and the employment of the deceased under him and prayed the Commissioner to dismiss the compensation petition.
5. The second opposite party before the Commissioner who is the sixth respondent herein has filed counter before the Commissioner and contended that:
a. it is not correct that the deceased was working as auto driver under the employment of the first opposite party and the same was controlled by him and he himself is a stranger to this case,
b. he his employed as driver in Anna Transport Corporation and he has no time to control any auto,
c. it is false to state that the deceased got Rs. 50/- per day as salary,
d. he has never seen either the deceased or the first opposite party and also never had any auto and never heard anything of the above news from anyone,
e. there was no notice sent to him and he has not agreed to settle the matter and
therefore, he prayed the Commissioner to dismiss the petition with costs.
6. It is seen from the records the Insurance Company who was the third opposite party before the Commissioner and the second appellant herein, has adopted the counter filed by the first and second opposite parties. Further, the Insurance Company has contended that the accident had not taken place as mentioned in the compensation petition. Further, the first opposite party has not admitted his relationship with the deceased as his employer and therefore, the petition is not maintainable. The Insurance Company further denied the involvement of the auto bearing Registration No. TN 27A 0029 and its insurance with it as there is no insurance coverage for it and in view of these, prayed the Commissioner to dismiss the compensation petition with costs.
7. The Commissioner, on a perusal of the oral and documentary evidence and on due consideration to the evidence adduced before him and after holding that the deceased died due to chest pain which arose out of and in the course of his employment under the first opposite party on 15.12.1993 and awarded a compensation as Rs. 78,824/- payable to the dependants of the deceased with interest at the rate of 12% per annum from the date of his death till the date of deposit. Aggrieved by the same, the Insurance Company and the owner of the auto in question have preferred this Civil Miscellaneous Appeal.
8. Heard both sides.
9. Mr. M.L. Ganesh, for Mr. S. Arunkumar, Learned Counsel for the appellants has contended that:
a. the award of the Commissioner is contrary to law and the Commissioner erred in coming to the conclusion that the appellants are liable to pay the compensation.
b. the deceased was not an employee of the first appellant and he did not die in the course of his employment under him.
c. the Commissioner failed to note that the first appellant has stated in his counter and also in his evidence that the deceased was not his employee at any time and the deceased did not die in the course of his employment under him and the second opposite party was not in the control of the auto in question.
d. the Commissioner has not appreciated that the second opposite party made it clear that he is an employee in Anna Transport Corporation and the deceased was a stranger and he was not in control of the auto in question and in fact, he had no time to control the auto being a driver in Anna Transport Corporation.
e. the Commissioner has failed to take note that there was no police report for the accident and post-mortem was not conducted and the private doctor who is said to have treated the deceased was not examined.
f. the Commissioner was at fault in placing reliance on the evidence of P.W.2 who is an obliging and interested witness to P.W.1 and he went wrong in coming to the conclusion that the deceased was a workman under the first opposite party on mere assumption and presumption.
10. Further, the Learned Counsel for the appellants has raised a substantial question of law whether the deceased was a workman as per the Act and whether he died in the course of his employment in the absence of police report, post-mortem and medical evidence.
11. Per contra, Mr. S. Ayyathurai, Learned Counsel for the respondents/claimants has contended that:
a. the deceased was employed by the first appellant as a driver,
b. on the date of accident, the deceased was driving the auto bearing Registration No. TN 27 A 0029 owned by the first appellant and while driving the auto, he experienced chest pain and was taken to hospital where he died of heart attack and this was clearly proved before the Commissioner,
c. the award of compensation was on the basis of the minimum wages prescribed under the Minimum Wages Act,
d. the deceased was a workman and he died as a result of the chest pain which arose out of and in the course of his employment under the first appellant,
e. the Commissioner has not committed any error apparent on the face of the record and there is no substantial question of law involved in this appeal and the respondents/applicants have suffered a lot as a result of the death of the breadwinner of their family and no perversity was involved in the findings of the Commissioner.
f. the evidence of P.W.1 evidence was corroborated by the evidence of P.W.2 who was a co-auto driver and the first appellant has failed to prove that there was no accident by producing any documentary evidence. and
g. Notice sent to the first appellant herein Ex.A.4 was not replied and the accident was not denied and therefore, the finding of the Commissioner holding that the deceased died due to the chest pain which arose out of and in the course of his employment is correct.
12. I have considered the rival submissions put forth by the Learned Counsel on either side.
13. Now, the first question that arises for consideration before this Court is whether the finding of the Commissioner that the deceased was a workman under the opposite parties 1 to 3 and he died due to the chest pain which arose out of and in the course of his employment, is correct or not and secondly, whether the Commissioner is right in awarding the compensation of Rs. 78,824/- to the dependants of the deceased.
14. In support of his contention, Learned Counsel for the appellants has relied on a decision of the Supreme Court reported in 1997 MLJ 70 (SC) in the case of The Regional Director, ESI Corporation and Anr. v. Francis Decosta and Anr.) and contended that there is no causal connection between the accident and the employment of the deceased. The relevant paragraphs of the above judgment read as under:
4. In order to appreciate the scope of the controversy, it will be necessary to set out the relevant provisions of the Employees State Insurance Act, 1948:
2.(8) 'Employment injury' means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India;
51. Disablement benefit: Subject to the provisions of this Act
(a) a person who sustains temporary disablement for not less than three days (excluding the day of accident), shall be entitled to periodical payment at such rates and for such period and subject to such conditions as may be prescribed by the Central Government.
(b) a person who sustains permanent disablement, whether total or partial, shall be entitled to periodical payment at such rates and for such period and subject to such conditions as may be prescribed by the Central Government.
51 (C) 'Accidents happening while traveling in employer's transport
(1) an accident happening while a insured person is, with the express or implied permission of his employer, traveling as a passenger by any vehicle to or from his place of work shall, not withstanding that he is under no obligation to his employer to travel by that vehicle, be deemed to arise out of and in the course of his employment, if -
(a) the accident would have been deemed so to have arisen had he been under such obligation; and
(b) at the time of the accident, the vehicle -
(i) is being operated by or an behalf of his employer or some other person by whom it is provided in pursuance of arrangements made with his employer, and
(ii) is not being operated in the ordinary course of public transport service.
(2) In this Section 'vehicle'includes a vessel and an aircraft.
That the first respondent has suffered a personal injury is not in dispute. The only dispute is whether the injury will amount to 'employment injury' within the meaning of Section 2(8), so as to enable the respondent to claim benefit under the Act. The definition given to 'employment injury' in Sub-Section (8) of Section 2 envisages a personal injury to an employee caused by an accident or an occupational disease 'arising out of and in the course of his employment'. Therefore, the employee, in order to succeed in this case, will have to prove that the injury that he had suffered arose out of and was in the course of his employment. Both the conditions will have to be fulfilled before he could claim any benefit under the Act. It does not appear that the injury suffered by the employee in the instant case arose in any way out of his employment. The injury was sustained while the employee was on his way to the factory where he was employed. The accident took place one kilometer away from the place of employment. Unless it can be said that his employment began as soon as the set out for the factory from his home, it cannot be said that the injury was caused by an accident 'arising out of his 'employment'. A road accident may happen anywhere at any time. But such accident cannot be said to have arisen out of employment, unless it can be shown that the employee was doing something incidental to his employment.
5. In our judgment, by using the words 'arising out of his... employment', the Legislature gave a restrictive meaning to 'employment injury'. The injury must be of such an extent as can be attributed to an accident or an occupational disease arising out of his employment. 'Out of', in this context, must mean caused by employment. Of course, the phrase 'out of' has an exclusive meaning also. If a man is described to out of his employment, it means he is without a job. The other meaning of the phrase 'out of' is 'influenced, inspired, or caused by; out of pity; out of respect for him.' (Webster Comprehensive Dictionary-International Edition-1984). In the context of Section 2(8), the words 'out of' indicate that the injury must be caused by an accident which had its origin in the employment. A mere road accident, while an employee is on his way to his place of employment cannot be said to have its origin in his employment in the factory. The phrase 'out of the employment' was construed in the case of South Maitland Railways Pvt. Ltd. v. James 67 C.L.R. 496, where construing the phrase 'out of the employment', Starke, J. held 'the words 'out of' require that the injury had its origin in the employment.'
6. Unless an employee can establish that the injury was caused or had its origin in the employment, he cannot succeed in a claim based on Section 2(8) of the Act. The words 'accident . . . arising out of . . . his employment' indicate that any accident which occurred while going to the place of employment or for the purpose of employment cannot be said to have arisen out of his employment. there is no causal connection between the accident and the employment.
7. The other words of limitation in Sub-section (8) of Section 2 are 'in the course of his employment'. The dictionary meaning of 'in the course of' is 'during (in the course of time, as time goes by), while doing'-The Concise Oxford Dictionary, New Seventh Edition). The dictionary meaning indicates that the accident must take place within or during the period of his employment. If the employees work shift begins at 4.30 p.m., any accident before that time will not be 'in the course of his employment'. The journey to the factory may have been undertaken for working at the factory at 4.30 p.m. But the journey was certainly not in course of employment. If 'employment' begins from the moment the employee sets out from his house for the factory, then even if the employee stumbles and falls down at the door-step of his house, the accident will have to be treated as to have taken place in the course of his employment. This interpretation leads to absurdity and has to be avoided.'
15. On the other hand, the Learned Counsel for the respondents/ claimants has placed reliance on a decision reported in AIR 1968 Guj 1 13 (Shantaben Thakor v. New Raipur Mills Company Limited) and the relevant paragraph reads as under:
14. We may here also refer to a decision by a single Judge of this Court in a case decided on 27th September 1960. That case is Bai Shakri v. New Manekchowk Mills, : AIR1961Guj34 In that case, the principles underlying a claim for compensation were set out as under:
(1) There must be a causal 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) It is not necessary that the workman must be actually working at the time of his death or that death must occur while he is working or had just ceased to work.
(4) Where the evidence is balanced if the evidence shows 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 workmen to succeed.
(5) The burden was upon the claimant to establish that the heart of the workman which was already in a diseased condition after the first attach had by the strain of the work he was doing, become weaker and which ultimately collapsed causing his death.
Another case which was decided in September 1966 was in First Appeal No. 644 of 1961 Sarangpur Cotton Mfg. Co. Ltd. v. Dev Karan (1967) 8 Guj LR 81. That was a single Judge decision in which it was decided that if a workman in the reasonable performance of his duties, sustained a physiological injury as the result of the work he was engaged in, this would be accidental injury in the sense of the Workmen's Compensation Act and it would be wrong to look for an accident in the form of a sudden strain exercised on the workman, something which was more than ordinarily borne by him. It was held that if there was an unexpected personal injury arising from some physiological condition set up in the course of the work, that might be described as an accident even though there was at the moment nothing unusual or particular which sets it up. In that decision, it was held that it was not necessary for the dependent of a deceased workman to establish that the deceased was engaged in some exceptional work of a particular kind which placed excessive strain on the deceased so as to result in his death. At page 108 of the report, the principles that would be applicable in such cases as deducible from authorities have been summarized in the following observations.
Now as discussed above, the authorities show that it is not unnecessary to establish specifically that the deceased at the relevant time was working on a particular job which exercised upon him such excessive strain that resulted in his death. The authorities further show that when such factors as disease or old age have pre-existed, they do not necessarily rule out the possibility of death having been accelerated by strain. The crux of the matter is whether the deceased had worked at the relevant time on a job which would cause strain and whether the job that was assigned to the deceased was likely to cause strain that would accelerate his death. It may be that in the case of a workman with good health and a strong body that amount of strain which the deceased had undergone at the relevant time might not have resulted in his death and it may also be that in the case of another workman a lesser perilous result might have followed. If the principle that a pre-existing disease or infirmity would not by itself disentitle the dependants of the deceased workmen from claiming compensation and that if such disease or infirmity would not by itself negative the possibility of the existence of a causal connection which is required to prove a claim for compensation, was right, the next question then that would arise for consideration would be whether in spite of strain that was likely to be caused in the work in which the employee was engaged or in the work which was assigned to him. Unless there were circumstances to the contrary, it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time. It would also be natural to presume that if such work involved some strain, the disease that was existing was likely to be aggravated provided, of course, there was medical or other evidence to support such a finding. The question, therefore, would really be whether it was established that the deceased died purely as a result of the disease from which he was suffering and the strain of work which he had been doing until the attack did not contribute to or accelerate his death, or whether it was established that the deceased workman, though suffering from a disease had strain of work which he was doing in the course of his employment which contributed to or accelerated his death. In the former case, the employer would not be liable; whereas in the latter, he would be. The findings on these points would necessarily depend upon the circumstances and the inferences which could legitimately be drawn from the facts on record.
In view of the several authorities referred to above and their binding nature, Mr. B.G. Thakore appearing on behalf of the respondent did not dispute the correctness of the principle set out in the above observations but what Mr. Thakore contended was that although in view of the aforesaid authorities, it was not possible to accept the reasoning of the learned Single Judge in First Appeal No. 1079 of 1960, the evidence on the record was not sufficient to satisfy even the test laid down in the various cases decided by the High Court of Bombay. We shall consider this aspect of the matter a little later. At the present moment, on the basis of the cases decided by the High Court of Bombay decided before May 1960 which must be considered as authorities binding on this High Court and also on the basis of the soundness of the reasoning contained therein, we are not in agreement with the reasoning that has been given by Raju, J. in his decision under appeal. We are of the view that a pre-existing disease or infirmity would not by itself dis-entitle the dependants of the deceased workman from claiming compensation and that the existence of such disease or infirmity would not by itself negative the possibility of the existence of a causal connection which is required to prove a claim for compensation. We are also of the view that unless there were circumstances to the contrary, it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time and that it would also be natural to presume that if such work involved some strain, the disease that was existing was likely to be aggravated provided there was some evidence to support such a finding. Further, it would not be necessary for the claimant to establish specifically that the deceased at the relevant time was working on a particular job which exercised upon him such excessive strain that resulted in his death. The real question in such cases would be whether the deceased had worked at the relevant time on a job which would cause strain and whether the job that was assigned to the deceased was likely to cause strain that would accelerate his death. We may now consider the facts of the present case in the light of the principles set out above.
16. The Learned Counsel for the respondents/claimants has placed further reliance on a decision of the Madhya Pradesh High Court reported in 1976 Lab I.C. (Smt. Sundarbai v. The General Manager, Ordnance Factory, Khamaria, Jabalpur) and the relevant paragraph reads as under:
10. On a review of the authorities, the principles insofar as relevant for our purposes may be stated as follows:
(A)Accident'means an untoward mishap which is not expected or designed by the workman. 'Injury' means physiological injury.
(B) 'Accident' and 'injury' are distinct in cases where accident is an event happening externally to a man; e.g. When a workman falls from a ladder and suffers injury. But accident may be an event happening internally to a man and in such cases 'accident' and 'injury' coincide. Such cases are illustrated by bursting of an aneurism, failure of heart and the like while the workman is doing his normal work.
(C) Physiological injury suffered by a workman due mainly to the progress of disease unconnected with employment, may amount to an injury arising out of and in the course of employment if the work which the workman was doing at the time of the occurrence of the injury contributed to its occurrence.
(D) The connection between the injury and employment may be furnished by ordinary strain of ordinary work if the strain did in fact contribute to or accelerate or hasten the injury.
(E) The burden to prove the connection of employment with the injury is on the applicant, but he is entitled to succeed if on a balance of probabilities a reasonable man might hold that the more probable conclusion is that there was a connection.
17. From a careful reading of the above decision, it is seen that in the case on hand, it is proved by the employee that the accident had causal connection with the employment and the accident was caused out of and in the course of his employment.
18. It is seen that the evidence of P.W.1 is corroborated by the evidence of P.W.2, Ganesan, a co-auto driver who has categorically stated that on 15.12.1993 at 1.00 p.m., the deceased went to school for picking up the children and near Sarada Bala Mandir, the vehicle was upset and when he, along with others, went to see him at Dr. Krishnamoorthy's Hospital, the doctor informed that he had died due to chest pain. Driving licence, medical certificate, record sheet, notice sent to the first opposite party and the acknowledgment card have been marked as Exs.A.1 to A.5 respectively. In Ex.A.2, the cause of the death is stated as myo-cardial infraction. Further, it is seen from the counter filed by the first appellant stating that he never engaged anybody to drive his auto for hire or any other purpose and it is true that he is the owner-cum-driver. But, he has failed to prove the same by producing his driving licence in order to be owner-cum-driver and he has also not let in any evidence to substantiate his contention. Similarly, the second opposite party has neither produced any documentary proof nor let in any evidence to prove that he is a driver employed in Anna Transport Corporation.
19. After a careful analysis of the materials before him and in the absence of any documentary proof on the side of the opposite parties who are the appellants herein, the Commissioner has concluded that the deceased was a workman as per the Act and he was employed by the first appellant herein as driver of the auto owned by him and he died due to the chest pain which arose out of and in the course of his employment on 15.12.1993 under the first appellant herein. In the absence of any material evidence to disprove the evidence of P.W.1 corroborated by P.W.2 and since there is no point agitated before this Court in disproving the Commissioner's above finding, I have no other option except to accept the finding of the Commissioner which is based on oral and documentary evidence and accordingly, the finding of the Commissioner that the deceased died out of and in the course of his employed is confirmed.
20. The next point for consideration is whether the quantum awarded by the Commissioner is justifiable or not. P.W.1 had deposed that the deceased was drawing wages of Rs. 50/- per day which is supported by the evidence of P.W.2. In the absence of any valid proof to show the real wages earned by the deceased, the minimum wages payable for drivers has been taken into account by the Commissioner. As per minimum wages notification in G.O. Ms. No. (SD) 14 Labour and Employment dated 19.03.1991, the driver is entitled to receive Rs. 1,316/- and on that basis, the Commissioner had determined the total wages drawn by the deceased as Rs. 1,316/- and the same is restricted to Rs. 1,000/- as per Section 4(1)(b) Explanation II of WC (A) Act, 1984. With regard to the aspect of insurance for the auto in question, based on the Certificate of Insurance, the Commissioner has held that the auto was very well covered under insurance policy.
21. The deceased was aged 35 years at the time of accident which is seen from Ex.A.3, the record sheet issued by the Headmaster, Chenniammal Middle School which shows the date of birth of the deceased as 15.07.1958. The accident occurred on 15.12.1993. Therefore, there is nothing on record to disprove the finding of the Commissioner that the deceased was aged 35 years. Taking the above facts into consideration, the compensation was worked out and fixed by the Commissioner as under:
Rs. 1000 x 40 x 197.069/100 = Rs. 78,824/- and the Commissioner held that the Insurance Company is liable to pay a sum of Rs. 78,824/- to the dependants of the deceased failing which interest at the rate of 12% shall be recovered from it from the date of death till the date of deposit.
22. In my opinion, the above conclusion has been arrived at by the Commissioner based on the evidentiary value. As such, in the absence of any contra material evidence produced on the side of the appellants and since no convincing point has been argued by the counsel for the appellants in assailing the determination of the quantum arrived at by the Commissioner, I find no reason to interfere with the said finding of the Commissioner and accordingly, in this respect also, the Commissioner's conclusion is found to be reasonable and the same is confirmed.
In the light of what is stated above, I find that there is no merit in the appeal preferred by the Insurance Company and the owner of the vehicle. Accordingly, the appeal is dismissed without any order as to costs.