1. This is an appeal under Section 30 of Workmen's Compensation Act, 1923 from the Judgment and Order dated 13-1-1992 given by Commissioner, Workmen's Compensation, Kodagu, Madikeri District rejecting 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 workmen/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 12-5-1989 came to checkroll. He was not feeling well but was directed and ordered by the respondents to unload the manure bags from the jeep and he did so and carried the bags of manure from jeep to store room. The claimants case further has been that 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 17-5-1989 said Babu the workman died. The claimant's/appellant's case has been that her husband Babu died on account of injury in 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 monthly salary of Rs. 534.82 @ 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 and in course of employment either on 12-5-1989 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 claimant/applicant has been a dependent of the deceased. The opposite partyalso denied the allegations. Their case was that he was working as a casual worker and had worked till the evening of 11-5-1989 and did not turn up thereafter. The opposite party further averred that on 17-5-1989 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. 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 workmen 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.
The Tribunal held as under:
'That deceased husband of the petitioner does not come within the definition of workmen in Second Schedule to Section 2(1)(n) of Sl. No. 18. He further observed that in 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 and due to pressure of work and therefore it opined that he had not died in 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 come up in appeal under Section 30 of the Workmen's Compensation Act'.
3. I have heard Sri K.S. Gourishankar, Counsel for appellant and Sri Giridhar holding brief for Sri M.B. Prabhakar, learned Counsel for respondent.
4. It has been contended by the learned Counsel for the appellant that the decision of the Workmen's Compensation Commissioner suffers from substantial error of law. Learned Counsel for the appellant eon-tended 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 pleaded. Learned Counsel further contended that even the Tribunal did not apply its mind to the material parts of the Section, and Entry XVIIIof 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 respondents in 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 the learned Counsel for the appellant has been hotly contested by Sri M.B. Prabhakar, learned Counsel for the respondent.
5. That as regards this question whether the claimant has been entitled or has been a workman or not, it is to be taken note 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 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 respondents 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 applicant was a workman. In my opinion he is justified in making this submission.
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 accounts 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 show any reason for non-production of 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 of 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 be held that the above circumstances go against respondents and prove that.--
(a)deceased husband of the claimant Sri Babu was a permanent employee and he was not a casual worker.
(b)In the concern belonging to 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.
Might be at sometime there may be reduction in the employment or persons employed but definitely if the records would have been produced they would have proved that 25 or more persons had been employedduring 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 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 cross-examination, the respondent himself has also admitted that 40 persons used to be employed during the plucking season every year. This admission of respondent and the statement of the claimant furnishing oral evidence to the effect that more than 25 persons used to be employed during plucking season every year in the estate of respondent has not been taken into consideration by the Workmen's Compensation Commissioner. So finding of the Workmen's Compensation Commissioner has been vitiated by substantial error of law and on the point if appellant was a workman. There is a further admission of the respondent that deceased was paid 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 frame work of workman given in Section 2(1)(n) of the Workmen's Compensation Act read with Entry XVIII of Schedule 2 to the Act. The evidences of Kamala and Kusuma prove that on 12-5-1989 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 marked in the Attendance Register, there was nothing to prevent the employer from producing that register. Employer admits that he has got the attendance registers but said register has been concealed and has not been produced before the Workmen's Commissioner. This clearly leads this Court to adversely presume against respondents that deceased Babu had come to work on 12-5-1989, The oral evidence prove that he complained of chest pain but he was required to work and thereafter he was hospitalised. In the written statement, 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 respondents died due to heart attack. The admitted position has been that on 17-5-1989 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 17-5-1989 in the hospital. In view of the admitted fact that death had taken place due to heartattack 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 17-5-1989 at 3.40 p.m. due to IHD, c CCF C Respiratory Failure (I.P. No. 10376)'.
This certificate appears to have been received on 19-5-1989. 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 indicate 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.
6. 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 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 3 months from the date of receipt of the copy of this order and its disbursement at the earliest.