S.C. Parija, J.
1. The appeal is directed against the judgment/ award dated 25.01.2006 passed by the Commissioner for Workmen's Compensation, Rourkela, in W.C. Case No. 26 of 2001, awarding an amount of Rs. 1,35,560/- as compensation.
2. The sole question of law raised by the employer in this appeal is as to whether the death of the deceased workman due to diabetes mellitus, hypertension and cerebral haemorrhage can be said to have any causal connection with the employment and can it be said that the death of the said workman was due to an accident arising out of and in course of his employment, so as to attract the provisions of Section 3(1) of the Workmen's Compensation Act.
3. 'The brief facts of the case is that the deceased Samaru Naik was an employee under the appellant and was working as a Security Guard, On 7.1.2000 he was on 'B' shift duty at the General Office of the company. In course of his duty, he felt uncomfortable and became ill. He informed about his illness to the Security Officer over phone and requested to relieve him of his duty, so as to enable him to go for medical treatment, but the concerned Security Officer instructed him to continue in duty till arrival of the reliever of 'C' shift. After arrival of the reliever for 'C' shift, the physical condition of the deceased-workman having deteriorated, he was immediately rushed to the B.S.L. Hospital of the appellant and was admitted in the said hospital at about 10 P.M., in a semi-conscious condition. After admission of the workman in the B.S.L. Hospital, his condition further deteriorated. After preliminary treatment, on the advise of the treating doctor, he was shifted to Ispat General Hospital (IGH for short), Rourkela, and was admitted there at about 1 A.M. in the same night. On the next day, i.e., 8.1.2000 at about 4.30 P.M. the deceased workman during his treatment died. The deceased workman was aged about 55 years old at the time of his death and was the only earning member of the family. The wife of the deceased filed application for claim before the Commissioner for compensation for the death of the deceased workman due to an accident arising out of and in course of his employment.
4. The appellant in their written statement denied the plea of the claimant that the deceased workman, Samaru Naik, died in an accident, arising out of and in course of his employment. The appellant-employer took the plea that the deceased workman was diagonised by the doctor to be an old case of diabetes and that he was referred to IGH, Rourkela, for treatment due to complications arising out of diabetes. It was further pleaded by the appellant-employer that the deceased workman was on duty as a Security Guard at the General Office of the company on 7.1.2000 in 'B' shift, which was from 2 P.M. to 10 P.M. He was released from duty at 9.50 P.M. by his reliever. The deceased workman went home after the duty hours and after reaching his house, while he was taking meal, he felt restless and was immediately shifted to B.S.L. Hospital of the appellant company, where he was admitted at 10.40 P.M. The deceased workman was latter referred to IGH, Rourkela, for further treatment, where he died and therefore it cannot be said that the deceased workman while on duty met with an accident and that his death arose out of and in course of his employment.
5. Learned Commissioner on consideration of the pleadings of the parties framed the following issues:
(i) Whether the employee Samaru Naik died arising out of and in course of employment under the Opposite Party
(ii) Whether the claimants are entitled to get compensation from the Opposite Party.
6. The wife of the deceased workman (claimant), examined herself as P.W.1 and stated in her evidence that on 7.1.2000, the deceased went to resume his duty in 'B' shift at the General Office of the company and felt uncomfortable during his duty hour. As the deceased felt ill and uncomfortable during his duty hours, he reported the matter over phone to the Security Officer, requesting to relieve him from duty but no steps were taken to relieve him from his duty. After the completion of his duty hours, he was relieved of his duty at about 10 P.M. and because of his illness, he was rushed to B.S.L. Hospital of the company, where he was admitted for treatment. Since his condition became serious, he was referred to IGH, Rourkela, immediately on the same night and was admitted there as an indoor patient. On the next day, i.e., 8.1.2000, he died in IGH, Rourkela, during his treatment, at about 4.30 P.M.
7. In her cross-examination by the appellant-employer, the said P.W.1 further stated that her husband was working in the security department on the date of his illness and he was working in 'B' shift duty. Another person staying near their residence, came and informed her about the sudden illness of her husband at about 10 P.M. Her son after receipt of message regarding the illness of his father, went to the company's Hospital to enquire about his father's health. She (P.W.1) got information from the neighbour about the admission of the deceased in the B.S.L. Hospital, where Dr. Patra treated her husband.
8. The appellant-employer adduced evidence of the Ambulance driver (D.W.1), the doctor of BSL Hospital (D.W.2), who attended the deceased and the ex-employee of the company (D.W.3), who relieved the deceased after 'B' shift duty and the Assistant Manager (P. & W) of BSL Company as D.W.4.
9. Learned Commissioner on consideration of the evidence of P.W.1 and the evidence of witnesses examined on behalf of the appellant-employer, came to find that the claimant (P.W.1) had categorically stated that the deceased was admitted in the company's hospital at about 10.10 P.M. directly coming from his duty. D.W.1 in his deposition stated that the deceased was shifted to IGH, Rourkela, between 10 P.M. to 10.30 P.M.. D.W.3 in his evidence has stated that he was working as a Security Guard in 'C shift on the relevant night and by then, the deceased workman was not sick. In his cross-examination, he has stated that he came to know about the death of the deceased workman after he reached home. Further in his statement, D.W.3 stated that the deceased was relieved from his duty at 10 P.M. The Assistant Manager of the company (D.W.4) stated that D.W.3 was an employee of the company, but no documents were filed to show that he was an employee of the company at the relevant time.
10. Learned Commissioner on consideration of the evidence on record, both oral and documentary, came to hold that the deceased workman suffered pain and felt uncomfortable during his duty hours, for which he was admitted to the company's Hospital, immediately after being relieved from duty and as his condition deteriorated, he was immediately shifted to IGH, Rourkela, where he ultimately died during treatment. In the medical certificate issued by the IGH, Rourkela, the cause of the death has been shown to be diabetes, hypertension and cerebral haemorrhage, which can be said to have been aggravated due to delay in treatment, as he was not relieved of his duty immediately and was forced to continue in duty till the arrival of his reliever of 'C shift duty. Accordingly the Commissioner came to find that the death of the deceased was due to exertion of duty and as he was not relieved from duty for immediate treatment and rest, inspite of request and was forced to continue on duty, inspite of his illness and suffering, the same stood aggravated. Thus there was a causal connection between his feeling ill and uncomfortable and his continuance in duty, which ultimately led to his death. Accordingly the learned Commissioner came to hold that the deceased workman died due to an accident arising out of and in course of his employment and the employer is liable to pay compensation, as required under Section 3 of the W.C. Act.
11. On a perusal of the record, it is seen that as per the bed head tickets issued by the BSL Hospital, Biramitrapur (Ext.1), the deceased workman has been shown to have been admitted on 7.1.2000 at 10.40 P.M. and has been transferred to IGH, Rourkela, in a semi-conscious condition at 11.50 P.M. on the same day. During his treatment at IGH, Rourkela, he died and as per the death certificate issued by IGH, Rourkela, the deceased has been shown to have died on 8.1,2000 at 4.30 P.M. due to diabetes mellitus, hypertension and cerebral haemorrhage.
12. Learned Counsel for the appellant submits that as the death of the deceased was due to pre-existing diseases like diabetes and hypertension, resulting in cerebral haemorrhage, there is no causal connection between the death of the deceased workman with his employment and therefore the conclusion arrived at by the learned Commissioner that the death of the deceased workman was due to an accident arising out of and in course of his employment is erroneous and misconceived. In this regard, the learned Counsel for the appellant has rejied on the decision of the apex Court in the case of Jyothi Ademma v. Plant Engineer, Nellore and Anr. reported in AIR 2006 SCW 3949 and the subsequent decision of the Supreme Court in the case of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvall and Anr. reported in : AIR2007SC248 , in support of its contention that under Section 3(1) of the W.C. Act 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 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. Only if the employment is a contributory cause or has accelerated the death or 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.
13. Learned Counsel for the appellant-employer has also placed reliance upon the decision of this Court in the case of : (2000)IIILLJ678Ori Smt. K. Mallika v. Executive Engineer Potteru Irrigation Division, Balimela reported in 89 (2000) C.L.T. 26. In the aforesaid case, the deceased was previously suffering from peptic ulcer and just prior to his death, he had taken some analgesic to suppress the pain he was having due to tooth-ache and there was sudden perforation of the peptic ulcer and the deceased had to be immediately operated upon which ultimately resulted in his death. In such background, it was held that taking of analgesic caused the perforation and ultimately caused the death and there was no causal connection of the death with the nature of the work of the deceased.
14. This Court in the case of General Superintendent, Taleher Thermal Station Ltd. v. Smt. Bijuli Nayak reported in (1993) 70 CLT 699 has held that the pre-condition for attracting the provisions of Section 3(1) of the W.C. Act are that the death or injury must be caused to the workman; the said injury must have been caused by accident; and the accident must have arisen out of and in course of his employment. A causal connection between the employment and the injury caused by the accident must exist. If after looking at the entire facts, a fair inference can be drawn that the employment caused injury, then the employer would be liable to pay the compensation. Hence the liability under Section 3(1) of the W.C. Act would accrue if it is established that an injury has been caused to a workman and the accident arose out of and in course of hris employment.
15. In the said case, the workman while entering the factory premises to join the general shift at 8.00 A.M. felt uneasy near the factory gate and was shifted to the hospital where he expired. The death was caused due to Coronary Thrombosis and it was pleaded by the employer that the said workman did not suffer from any injury during and in course of his employment and therefore, the employer is not liable to pay any compensation. After analysing various judicial pronouncements of different High Court it was held that:
(i) there must be a causal connection between the injury and the accident and the work done in the course of employment;
(ii) the onus is upon the applicant to show that it was the work and the resulting strain which contributed to, or aggravated, the injury;
(iii) it is not necessary that the workman must be actually working at the time of his death or that death must occur while ne was working or had just ceased to work, and
(iv) 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 workman to succeed.
16. In another decision of this Court in the case of General Manager, Barsuan iron Mines v. Mukta Naik reported in 90 (2000) CLT 300, where the deceased-empldyee who was suffering from hypertension and cardiac problem and the post mortem report indicated that the death was due to hypertension and cardiac trouble, which led to syncope, it was pleaded that the deceased died due to preexisting diseases and his death had nothing to do with his employment and as such the accident did not arise out of the employment. This Court while considering the said question, came to hold that it cannot be concluded that there was no causal connection between the ultimate death of the deceased employee due to syncope and the nature of his employment. Having regard to the fact that possibly the deceased was already suffering from hypertension and cardiac problem the very fact that he had to undertake the work in the night shift must have aggravated the disease.
17. The apex Court in the case of Mackinnon Mackenzie and Co. Private Ltd., v. Ibrahim Mahommad Issak reported in : (1970)ILLJ16SC , observed as follows:
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 isincidental to it'. The words 'arising out of employment' are understood to mean that 'during the course of employment, injury has resulted from some risk incidental to the duties of the service, which, uniess 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 applied to employment as such-to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone 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....
18. The question as to whether the nature of employment accelerated or contributed to the cause of death of a deceased workman, was considered in greater detail by the Supreme Court in the case of Mackinnon Mackenzie and Co. (Private) Ltd. v. Rita Fernandez (Smt.) reported in 1969(2) LLJ 812 wherein the Hon'ble Court observed as under:.It is well-established that under the section there must be some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of his 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 the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would be liable.
Even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident....
19. Learned Counsel for the claimants-respondent has referred to a decision of the apex Court in the case of State of Rajasthan v. Ram Prasad and Anr. reported in : (2001)ILLJ177SC , where the workman died due to lightening strike. The Hon'ble Court observed as under:
The accident, it is stated, took place on account of lightning. The contention put forth on behalf of the appellant is that the mishap of death of Smt. Gita due to lightning is an act of God and, therefore, it is not liable to pay compensation. This contention has been rejected not only by the Commissioner for Workmen's Compensation but also by the learned Single Judge in appeal and thereafter by a Division Bench in a further appeal. The view taken is that the concept of the liability under the Act is wide enough to cover a case of this nature inasmuch as death had taken place arising as a result of accident in the course of employment. It is, no doubt true that accident must have a causal connection with the employment and arise out of it. If the workman is injured as a result of natural force such as lightning though in itself has no connection with employment, she can recover compensation by showing that such employment exposed her to such injury. In this case the finding is that the said Smt. Gita was working on the site and would not have been exposed to such hazard of lightning striking her had she not been working so.
20. The aforesaid views of the apex Court has been reiterated in the subsequent decision reported in AIR 2006, AIR SCW 349 (supra), which is to the effect that if the employment is a contributory cause or has accelerated the death of the workman or 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 employment would be liable.
21. The other plea that has been raised by the appellant is that the expression 'accident' employed in Section 3(1) of the W.C. Act cannot be expanded to the extent that it would cover a case of the present kind, where the workman suffering from diabetes and hypertension died of cerebral haemorrhage. Coming to the meaning of the word 'accident', in Halsbury's Laws of England, it has been stated:
The term 'accident' generally means some unexpected event happening without design, but perhaps no general definition can be given of the word to cover all cases falling within the Act. To decide whether an occurrence is an accident, it must be regarded from the point of view of the workman who suffers from it, and if it is unexpected and without design on his part it may be an accidental though intentionally caused by the author of it, or caused by some act committed wilfully by him....
22. This Court in 70 (1993) CLT 699 (supra) has held that the word 'accident' in Section 3(1) of the W.C. Act has been used in the popular and ordinary sense and means 'mishap' or 'untoward event not expected or designed'. If the injury or death from the point of view of the workman who dies or suffers injury, is unexpected or without design on his part, then the death or injury would be by accident although it was brought about by a heart attack, or some other cause to be found in the condition of the workman himself. The basic and indispensable ingredient of 'accident' is unexpectedness and the second ingredient is that the injury must be traceable, within reasonable limits, to a definite time, place and occasion or cause. If the death or the disability is due to heart attack which resulted from the exertion of the employee in the performance of the duties of his employment, the compensation should be awarded under the W.C. Act.
23. From the evidence on record, it is abundantly clear that the deceased while on 'B' shift duty as a Security Guard complained of pain and feeling uncomfortable, requested for being relieved from duty. In spite of such request, he was not relieved of his duty and instead he was asked to continue till his reliever in 'C' shift duty arrive. The deceased workman was forced to continue on duty till arrival of his reliever at about 10 P.M. and immediately thereafter he was shifted to BSL Hospital of the appellant company, where he was admitted in a semi-conscious condition at 10.40 P.M. as per Ext.1. Subsequently as his condition deteriorated, he was referred by the treating doctor of BSL Hospital to IGH, Rourkela, and was transferred to IGH, Rourkela at 11.50 P.M., where he died during treatment, on the next day, i.e., 8.1.2000, at about 4.30 P.M. hence it can be safely concluded that the death of the deceased workman had a causal connection with his employment as a Security Guard, which was a contributory cause and accelerated his death and therefore the said death of the deceased workman arose out of and in course of his employment.
24. Applying the principles of law as discussed above to the facts of the present case and considering the findings of the learned Commissioner as given in the impugned award and the reasons assigned therein, in support of the same; no impropriety or illegality can be said to have been committed by, the learned Commissioner so as to warrant any interference by this Court.
The appeal being devoid of merit, the same is accordingly dismissed.