1. This is an appeal under Section 30 of the Workmen's Compensation Act, 1923, from the judgment and order dated January 13, 1992, given by the Commissioner, Workmen's Compensation, Kodagu, Medikeri District, rejecting the appellant/applicant's claim for compensation.
2. The facts of the case in brief are that one Babu as per claim of the petitioner/appellant who was the husband of the present appellant, was the workman/employee in the coffee estate by name Umashankara Estate at Anyathamangala which belonged to the respondent. The claim of the applicant has been that her husband, Sri Babu, on May 12, 1989, came to cheek roll. He was not feeling well but was directed and ordered by the respondent to unload the manure bags from the jeep and he did so and carried the bags of manure from jeep to store room. The claimant's case further has been that the said Babu felt chest pain at about 11.00 a.m. At 3 p.m. Babu, the workman, was admitted in the Government Hospital, Siddapura, for the treatment of chest pain, etc., and according to the claimants he suffered due to pressure of work, in course of loading and unloading of manure bags and later on May 17, 1989, the said Babu, the workman, died. The claimant' s/appellant's case has been that her husband, Babu, died on account of injury in the course of his employment and prayed for award of compensation to the tune of Rs. 39,338. The claimant in the claim petition further averred that her deceased husband was getting a monthly salary of Rs. 534.82 at the rate of Rs. 14.79 per day. The claim of the claimant was contested by the respondents in their written objections where the respondents/opposite party denied the allegations that Sri S. Babu was the permanent worker employed with the opposite party. It also alleged that it was false that S. Babu received personal injury arising out of and in the course of employment either on May 12, 1989, or on another day. In para 2 of the objections, it was stated that it is true that S. Babu died due to heart attack but it was asserted that the death of S. Babu had no nexus with employment or the accident as heart attacks are very common. The opposite party/respondent denied that the claimant/applicant has been a dependent of the deceased. The opposite party also denied the allegations. Their case was that he was working as a casual worker and had worked till the evening of May 11, 1989, and did not turn up thereafter. The opposite party further averred that on May 17, 1989, the opposite party in the evening learnt about the death of the said Babu and on humanitarian grounds he paid Rs. 100 to the wife of the deceased, viz., the applicant to meet the immediate expenses.
3. Though the respondent/opposite party denied the claim of the claimant/appellant, the Commissioner, Workmen's Compensation framed the following issues :
(1) Whether the deceased husband of the petitioner would come within the definition of workman within the meaning of Section 2(n) of the Act of 1923.
(2) Whether the petitioner's deceased husband died in the course of his employment in his coffee estate and during working hours.
(3) Whether the petitioner is entitled for any compensation.
(4) Hence, what is the decision of the Court.
4. The Tribunal held as under :
'That the deceased husband of the petitioner does not come within the definition of workman in the Second Schedule to Section 2(1)(n) of serial number 18. He further observed that in the doctor certificate there is no date as to entry of late Babu in the hospital and there is no support that Babu got the heart attack due to pressure of work and, therefore, it opined that he had not died in the course of employment in the coffee estate. With this finding the Workmen's Compensation Commissioner rejected the claim of the claimant, Smt. Kamala, widow of S. Babu who has came up in appeal under Section 30 of the Workmen's Compensation Act.
5. I have heard Sri K. S. Gourishankar counsel for the appellant and Sri Giridhar holding brief for Sri M. B. Prabhakar learned counsel for the respondent.
6. It has been contended by learned counsel for the appellant that the decision of the Work-men's Compensation Commissioner suffers from substantial error of law. Learned counsel for the appellant contended that the Workmen's Compensation Commissioner acted illegally in making out a new case to the effect that the respondent/opposite party did not employ more than 25 workmen in his estate. The Commissioner opined that the respondent has stated that the extent of his estate was 20 acres and he had employed about 12 workers and, therefore, the deceased husband of the petitioner could not come within the frame work of the word or expression 'workman' under Section 2(1)(n) of the Act. Learned counsel contended that when there was no such plea taken in pleadings on behalf of the opposite party, the Workmen's Compensation Commissioner had no jurisdiction to record the finding in favour of the respondent and to make out a new case which was not sopleaded. Learned counsel further contended that even the Tribunal did not apply its mind to the material parts of the Section, and entry XVIII of Schedule II which says when an employer has employed more than 25 persons on any one day in the preceding 12 months he is liable to pay. The Tribunal has not applied its mind to this aspect of the matter. Learned counsel further contended that the Commissioner failed to consider the evidence on record which clearly proves that in any part of the year, i.e., on any day in 12 months of the preceding year if at least 25 persons were employed and invited my attention to the statement of P.W.-1, Kamala, and to the statement of the respondents in the course of examination. On this basis, learned counsel contended that the finding on issue No. 1 is incorrect and vitiated by substantial error of law as it has been arrived at after having ignored the material evidence. This contention of learned counsel for the appellant has been hotly contested by Sri M. B. Prabhakar, learned counsel for the respondent.
7. That as regards this question whether the claimant has been entitled or has been a workman or not, it is to be taken note of firstly that the respondent has not pressed any issue to the effect that the deceased was not the workman and was working only as a casual worker. The opposite party respondent has admitted in his cross-examination that the respondents maintained day-to-day attendance registers of his employees-workers-casual or otherwise and the account books of payment of salary. It had been pointed out to me that respondent has stated that he has not produced those books. Learned counsel contended that an adverse inference should have been drawn against the respondents for non-production of those books by the employer before the authorities which had to determine, the question if the applicant was a workman. In my opinion, he is justified in making this submission.
8. It is one of the well-settled principles of law that when any of the parties of legal proceedings have certain documents or registers, books of account which have material bearing or documentary evidence, and which may throw some light on points in dispute between parties requiring determination thereof, and that party in possession of documents does not produce the same before the Court or Tribunal without reason nor shows any reason for non-production thereof, adverse presumption should be drawn against such party who is in possession of the relevant documents and such a party is not entitled to take shelter under the sheer doctrine of burden of proof. In this view of the matter, firstly, the circumstances reveal and make out a case for the raising of adverse inference against the respondent and it is to he held that the above circumstances go against the respondents and prove that :
(a) the deceased husband of the claimant, Sri Babu, was a permanent employee and he was not a casual worker;
(b) in the concern belonging to the respondents 25 or more workmen had been employed if not for the whole year, but definitely for some seasonal period during the span of relevant 12 months every year.
9. Might be at sometime there may be reduction in the employment of persons employed but definitely if the records would have been produced they would have proved that 25 or more persons had been employed during the material season plucking period with the span of 12 months period if not otherwise the records would have definitely been produced. Apart from this there is oral evidence to show that it has not been considered by the Commissioner. It is one of the trite principles of law that if finding is recorded by a Court on fact ignoring material evidence on record, it raised substantial question of law and vitiates the finding by substantial error of law if it had been arrived at ignoring the material evidences. In the present case, the Commissioner has ignored the evidence of Kamala one of the P.Ws. who has stated that during the plucking season more than twenty-five persons were employed and that even forty persons were employed during the course of the year. In course of the cross-examination, the respondent himself has also admitted that 40 persons used to be employed during the plucking season every year. This admission of the respondent and the statement of the claimant furnishing oral evidence to the effect that more than 25 persons used to be employed during the plucking season every year in the estate of the respondent has not been taken into consideration by the Workmen's Compensation Commissioner. So the finding of the Workmen's Compensation Commissioner has been vitiated by substantial error of law on the point if the appellant was a workman. There is a further admission of the respondent that the deceased was paid a salary of Rs. 14.25 per day. Thus, considered in my opinion, the finding of the Workmen's Compensation Commissioner on Issue No. 1 suffers from substantial error of law. In my opinion, I do hereby hold that the material on record clearly establishes that the claimant's husband, Sri Babu, was a workman in the estate within the framework of workman given in Section 2(1(n) of the Workmen's Compensation Act read with entry XVIII of Schedule II to the Act. The evidences of Kamala and Kusuma prove that on May 12, 1989, the workman, Babu, had come to attend the job and did job in the coffee estate. Non-production of the attendance registers also leads this Court to hold that had Babu not come to work in the estate and had attendance not been marked in the attendance register, there was nothing to prevent the employer from producing that register. The employer admits that he has got the attendance registers but the said registers have been concealed and had not been produced before the Workmen's Compensation Commissioner. This clearly leads this Court to adversely presume against the respondents that the deceased, Babu, had come to work on May 12, 1989. The oral evidence proves that he complained of chest pain but he was required to work and thereafter he was hospitalised. In the written statement, the respondents have clearly admitted that he had died of heart attack. Therefore, there was no question before the Tribunal to go into that point whether the respondent died due to heart attack. The admitted position has been that on May 17, 1989, S. Babu died due to heart attack. This admission and the fact coupled with the fact which is proved by the other evidences on record, viz., of Kamala and Kusuma that Babu was asked to unload manure bags from the jeep to the store room and thereafter he felt chest pain and had to be admitted in the Government hospital at 3.00 p.m. and thereafter he died on May 17, 1989, in the hospital. In view of the admitted fact that death had taken place due to heart attack even if this fact has not been mentioned in the certificate as the Tribunal says, it is immaterial though perusal of the certificate really reveals that :
'This is to certify that Sri Babu aged 40 years, expired at P.H.U., Siddapur, on May 17, 1989, at 3.40 p.m. due to IHD c CCF C Respiratory Failure (I.P. No. 10376)'.
10. This certificate appears to have been received on May 19, 1989. A reading of the certificate in my opinion reveals and proves that the death has been caused due to serious heart attack and respiratory failure. The certificate under medical terms has been one which indicates heart failure. This document read along with oral evidences of P.Ws. clearly reveal that respiratory system failed with the beginning of chest pain in course of employment when he was loading and unloading and he was admitted in hospital and died. Thus, considered in my opinion, the Commissioner was wrong in taking the view that it has not been proved that death has been caused on account of heart failure or on account of his loading and unloading work pressure. Death of the worker had taken place as proved by the evidence on record due to pressure of work resulting in injury to the workman's heart and failure of the heart.
11. Thus, in this view of the matter, in my opinion, the claim petition is and has been maintainable and the claimant has been entitled to the award. The appeal deserves to be allowed. The order of the Workmen's Compensation Commissioner is hereby set aside. The claim petition filed by the applicant/claimant is allowed and the Workmen's Compensation Commissioner is hereby directed to calculate the compensation amount payable to the claimant, Smt. Kamala, along with interest and penalty for default as provided under Section 4(a). Let the Workmen's Compensation Commissioner determine the amount of the compensation, interest and penalty interest within a period of three months from the date of receipt of the copy of this order, and its disbursement at the earliest.