Judgment:
C.L. Pangarkar, J.
1. Rule, heard forthwith with consent of parties.
2. Both these appeals can be decided by common judgment since identical questions arise in them. They arise out of orders passed by the Commissioner of Workmen's Compensation.
3. Facts in Appeal No.465 of 2008 are as under One Ramlal Kumbhalkar was working in the Cement Pipe Factory owned and run by appellant/non-applicant. Respondents are the widow and children of said Ramlal. On 5/7/1991, Ramlal Kumbhalkar went to the Cement Pipe Factory where he was engaged as a labourer. He was paid Rs. 18/-per day. It is alleged that while he was removing the moulding of the Pipe, he all of a sudden fell down and the doctor was called. The doctor noticed that Ramlal had died on the spot of heart attack. The appellant/non-applicant's representative informed the police of death of Ramlal in the factory on account of heart attack. The non-applicant/appellant did not pay the compensation to the applicants/respondents, hence they filed an application for compensation under the workmen's Compensation Act.
4. The application was resisted by the non-applicant/appellant. It is admitted by the non-applicant/ appellant that Ramlal died while he was removing the moulding from the Cement Pipe. It is also admitted that doctor was called and he examined and declared that Ramlal had died of heart-attack. It is the contention of the non-applicant that the death of the deceased had not occurred due to any negligence on the part of the non-applicant/appellant and since he died of heart-attack, appellant is not liable to pay any compensation. The application initially came to be decreed ex parte. The appellant thereafter applied for setting aside the ex parte award. It was set aside and thereafter appellant contested this application.
5. The Workmen's Compensation Commissioner found that since the death had taken place while the deceased was discharging his duty in the factory, the appellant/non-applicant was liable to pay compensation to the applicants/respondents. He directed sum of Rs. 45,747/-to be paid along with penalty of 50% and interest at 6%. Being aggrieved by that order, this appeal has been preferred by the appellant/non-applicant.
6. In Appeal No.852 of 2008, the deceased was engaged as a Watchman in the Gondkhairy Plantation of the Forest Department. It is alleged that on 24/9/2005, the deceased was on duty. It was the duty of the deceased to drive away the stray cattle entering into the plantation area and to take care of the plants in the plantation and the fencing around the plantation. It is alleged that on the day of the incident some stray cattle had entered into the plantation area. The deceased as well as other employee ran behind the cattle to drive them out and deceased while driving them out fell down and suffered heart-attack and died.
7. The appellant/N.A. does not dispute that the deceased was engaged as a daily wager. It does not dispute that it was one of the duties of the deceased to drive away the cattle in order to protect the plants in the plantation area. It is the contention of the appellant that the deceased was suffering from a coronary heart-disease and he died of that and not due to any stress or strain of the employment.
8. The learned Commissioner of Workmen's Compensation, however, found that since the death had occurred during the course of the employment, respondents were bound to pay compensation and he directed sum of Rs. 1,86,448/-to be paid to the heirs of the deceased.
9. Both these appeals though are filed as first appeals, they necessarily need to be admitted only on the substantial question of law. The following substantial question of law arises for determination in both the appeals.
Whether heart-attack could be said to be an injury suffered during the course of the employment due to the nature of work discharged by the deceased and such injury had at least casual connection with the work discharged by the deceased employee
10. Before we advert to the facts of the present case and the evidence, it would be necessary to look into the provisions of the law. There cannot be any dispute with the proposition that this is a beneficial legislation and has therefore to be interpreted liberally. Section 3 of the Workmen's Compensation Act speaks of liability of the employer to pay compensation to an employee who suffers injury or dies during the course of the employment. Section reads thus
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 [three] days;
(b) in respect of any [injury, not resulting in death [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 willful 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 willful 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.
[(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is provided, the accident shall be deemed to have arisen out of, and in the course of, the employment:Sub-section 1 says that if an injury is caused to a workman by an accident arising out of and in course of employment, the employer shall be liable to pay compensation. Sub section 2 says that if an employee contracts a any disease specified as an occupational disease peculiar to that employment, such contracting shall be treated as injury suffered by accident during the course of the employment and the employer shall be liable to pay compensation. It is neither parties case in either appeal that this heart disease could be treated as an occupational disease. It is not peculiar to the nature of the employment of either of the deceased. Either case, therefore, does not fall in category of occupational disease. We have, therefore, to see if the heart-attack suffered by the deceased could be treated as an injury suffered during the course of the employment. The word injury, however, is not defined in the Acts.
11. Learned Counsel for the appellant-employers contended that the respondents were not at all entitled to any compensation. According to them, there is no nexus whatsoever between the death of employee and the nature of the employment. They submitted that it is not an injury as such suffered by the employee at all. They also submitted that if some employee was suffering from such heart ailment and suddenly dies, that death cannot be attributed to the nature of the employment. They submitted that even a clerk working on an establishment and sitting in a chair or on the table may suffer a heart attack in the office or factory and die. The clerk, according to them, does not do any physical work and yet he suffers an heart attack. Such death in factory, according to them, cannot be attributed to the nature of employment though death has occurred during the course of the employment. Therefore, every death that may occur during the course of employment cannot be treated as injury suffered by accident during the course of the employment. What is, therefore, necessary is that the nature of employment must make that employee susceptible to such disease or injury due to the strain and stress undergone.
12. The Learned Counsel for the appellants mainly relied on the decision of the Supreme court, reported in : AIR2007SC248 ( Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and Anr.). Their Lordships of the Supreme Court have dealt with this aspect on identical facts very exhaustively.
19. Sufferance of heart disease amongst young persons is not unknown. A disease of heart may remain undetected. A person may suffer mild heart attack but he may not feel any pain. There must, thus, 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.
24. There is a crucial link between the casual 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.
25. 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.
26. 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.
3. Injury aggravated due to stress and strain.
27. The deceased was travelling in a vehicle. The same by itself cannot give rise to an inference that the job was strenuous.
28. 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 or relevance providing guidance to court in this behalf.
29. 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 therefor 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.
38. 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.
In the reported case, the deceased was working on a Milk Van as a Cleaner and while getting down from the milk van, he suffered heart attack and died. It is held by Their Lordships that before a compensation could be awarded, three things need to be established by the applicant in such type of cases and they are, 1) stress and strain arising during the course of employment, 2) nature of employment, 3) injury aggravated due to stress and strain.
13. This court in a decision reported in : 2008(2)BomCR441 (United India Insurance Co.Ltd. v. Radhabai wd/o Marotrao Kharate and Ors.) held as follows
10. The deposition of widow of deceased also demonstrate that her husband was having sound health and he had no problem of heart attack earlier. The post-mortem report shows that probable cause of death was due to stoppage of heart action i.e. cardiac arrest. Shri Thakur, learned Counsel has also tried to invite attention to Medical Certificate dated 20/1/1988 issued by Medical Officer of respondent No. 5. Sugar factory. Said Medical Certificate is available on record but has not been exhibited. The said certificate also shows that deceased had no heart problem or any complaint of Blood Pressure in last three years. It is, therefore, clear that a hale and healthy man has expired suddenly while lifting a pump engine i.e. while discharging his duties at odd hours in the night. It is, therefore, clear that he received injury to his heart on account of nature of his work and duties and therefore the argument that there was no accident or there was no connection of employment with such accident or death is misconceived.
It appears from this decision that the employee in that case was hale and healthy man who died suddenly while doing manual work. This decision takes into consideration the decision in Shakuntala Shreshti's case : AIR2007SC248 .
14. In First appeal No.465 of 2008, the deceased was working in a Cement Pipe Factory and he was medically fit and he died while removing the moulding. The present appellant employer has averred in the reply in special pleadings as follows
It is submitted that Ramlal Kumbhalkar was working with this non-applicant as a helper (unskilled worker) on wages of Rs. 18/-per day. That on 5/7/1991 when he was doing the job of removing mouldings from the R.C.C. Pipe the diameter or which was 300 mm at about 11 A.M. he suddenly fell down on the floor. The other co-workers rushed him to the office. Dr.Avaghate was called to examine him. The doctor after examining the deceased declared him to be dead due to heart failure.
These averements clearly go to show that the deceased died when he was removing the moulding and he died of heart failure. Post mortem report of deceased Ramlal is placed on record. He was a young man of 28. The findings which are relevant for our purpose are recorded in Col. No. 20. The findings show that the right lung was normal and left was congested. The heart and large vessels were normal and the heart was empty. There was, therefore, nothing abnormal in the heart or large vessels supplying blood, yet the deceased suffered an heart attack and died. It is not that the deceased had heart ailment any time. The findings of the post mortem report also do not show that he had any kind of heart ailment. If the deceased was really hale and healthy and had no ailment of heart at all and if he suffered heart attack suddenly while removing the moulding, it must be assumed that he suffered such attack due to the strain. As pointed out earlier, the learned Commissioner has taken into consideration the admission of the employment in the written statement that death of the deceased had taken place while removing a moulding of 300 mm diameter. The moulding of casting Cement Pipe of 300 diameter ought to be very heavy. Therefore, while removing such heavy moulding, it must have caused a strain. If, therefore, the deceased suffered an attack suddenly, it must be attributed to that physical strain. There is, therefore, certainly nexus between the death and nature of work and employment. The Commissioner of Workmen's Compensation, therefore, has rightly awarded the compensation in Appeal No.465 of 2008.
15. This takes me to consider if the Commissioner in First Appeal No.465 of 2008 rightly awarded the interest and penalty. The learned Counsel for the appellant Shri Borkar contended that the imposition of penalty in this case was not proper for the reason that there was no accidental injury and therefore, there was no reason for employer to accept the liability. He submits that question of imposition of penalty would arise only if the employer accepts the liability and yet does not pay. The contention cannot be accepted. The fact is that the deceased had died in the factory premises while actually doing the manual work. He, therefore, died during the course of the employment. The compensation, therefore, can be said to have fallen due as soon as the employee died while discharging the duty and he was therefore bound to pay the same immediately. The employer may at the most in such cases move the Commissioner not to pay the compensation until the question of death having occurred due to stress or strain in the employment is decided. If the court or Commissioner holds that there is a direct nexus between the death and the nature of employment, such liability must relate back to the date of the accident on which date the compensation in fact falls due. The liability to pay compensation would, therefore, as said earlier, relate back to the date of accident. In the instant case, the employer/appellant was totally negligent. He initially allowed the proceedings to proceed ex parte and subsequently got ex parte and award set aside and then contested this application. In these circumstances, it must be said that the employer neglected to pay or deposit the compensation that fell due. The Commissioner's order under such circumstances cannot be faulted with.
16. The facts in appeal No.852 of 2008 are somewhat different. The deceased was engaged as a Watchman in the forest department. The forest department had planted teak wood plants in an area covering approximately 25 hectares. The job of the deceased was to protect the plants in the plantation area from the stray cattle and to protect the fencing around the plantation area. It is the case of the claimants that around 1 p.m. some cattle entered the plantation area and seeing them the deceased and one Ramkrishna Nehare ran behind to drive them out. While driving them out, it is alleged that deceased suffered an attack and died. It is not disputed that along with the deceased there were other watchmen also. It is, therefore, apparent that deceased was not the only person who was required to cover the entire area of the plantation. It is claimant's contention that due to stress and strain suffered, he suffered an attack. Deceased died while on work is not disputed at all. The appellant, however, disputes that the job was strenuous and the deceased died of strain and stress. We have seen from the observations of the Supreme Court in Shakuntala Shreshti's case that simply because the person died of heart attack that does not give rise to presumption that the same was by way of accident. It is also observed further in the same paragraph 28 that a person may be suffering from heart ailment and he may not be aware and medical opinion in such cases may be necessary. We have seen that the deceased was not the only person discharging the duty in that area. There were other watchmen on duty also. There was, therefore, least likelihood that deceased was being put to any stress or strain.
17. In this case, the Medical Officer has not been examined but the Post-mortem report has been placed on record at Exh.13. The opinion of the Medical officer shows cause of death as 'coronary artery disease'. The findings noted in Col. No. 20 are very significant with regard to 20 (g) and (h). They read as follows.
Enlarged, Coronary tortuous, excessive fatty deposition present, right coronary completely blocked. Anterior descending branch of left coronary blocked to 2/3 rd. on its lumen. Calcified otheromatosis plaque seen over the inner wall of vessels.
It is obvious from these findings that the deceased has had an old coronary disease. The right coronary was completely blocked and other branch was also blocked to the extent of 2/3rd and there was excessive fatty diposits in the heart and vessels. If these findings are taken into consideration, it is clear that the deceased had died of coronary heart disease and it has nothing to do with the nature of employment. If the deceased was merely engaged in driving the cattle from small plot of land along with others, it cannot by any stretch of imagination be said that the deceased was put to any stress or strain resulting in heart attack. The deceased had in fact suffered heart attack because of the coronary disease with which he was suffering. Heart attack has no nexus with the nature of employment even casual. In the circumstances, the learned Commissioner of workmen's Compensation had fallen in error in awarding compensation.
18. The learned Counsel Shri Naukarkar for the respondents had placed before me certain decisions. He had relied upon decision in 1990 Labour and Industrial Cases 1781 (Zubeda Bano and Ors. v. The Divisional Controller, M.S.R.T.C., Nagpur) of this Court. In this decision in paragraph 9 of the Judgment, this Court had observed that it is a settled legal position that heart injury when brought about by a strain due to the work in employment and not by natural wear and tear of the employment is compensable. In the case at hand, the deceased was suffering from heart disease which could not be attributed to the work and nature of employment. Hence, this case has no bearing on the case at hand.
19. Yet another decision reported in 1994 L.I.C. 2570 (Deviben Dudabhai v. Manager, Liberty Talkies, Porbandar and Anr.) was placed before me. The facts of the reported case are totally different. In that case, the deceased was already suffering from tuberculosis and he suffered heart attack which was aggravated due to the strain and exertion of the work. In the instant case, we have seen that the deceased was not required to undertake any strenuous job at all. He has relied on another decision reported in 1983 L.I.C.119 (Mrs. Tejubai and Ors. v. The General Manager, W.Rly. Bombay and Ors.). This decision too has no bearing on the case at hand. In that case, the deceased was suffering from coronary heart disease which could not be attributed to the nature of the employment. The other decision reported in 2004(100) FLR 49 (Divisional Controller, N.E.K.R.T.C., Bellary v. Marembee and Ors.) placed before me and it was alleged that finding that the deceased had died of accidental injury is purely finding of fact and no question of law is involved and therefore interference is not called for.
20. In the instant case, if the finding can be said to be perverse, such perversity is in fact the substantial question of law. In this case i.e. First Appeal No.852 of 2008, the finding that the applicants were entitled to compensation was certainly perverse and therefore called for interference. In view of this, I proceed to pass the following order.
First Appeal No.465 of 2008 is dismissed.
First Appeal No. 852 of 2008 is allowed.
The order passed by the trial court i.e. workmen's Compensation Commissioner in F.A. No. 852 of 2008 is set aside. The application for Payment of Compensation is dismissed.
No order as to costs in both the appeals.