Judgment:
K.M. JOSEPH, J.
1. Appellant is the second opposite party in W.C.C.No.305 of 2003 of the Workmen's Compensation Commissioner, Thrissur. Respondents 1 to 6 are the widow, parents and three minor children of the deceased employee. The 7th respondent is the employer.
2. Respondents 1 to 6 laid a claim before the Commissioner for Workmen's Compensation under Section 22 of the Workmen's Compensation Act, 1923 claiming compensation for the fatal accident caused to the deceased Balakrishnan, alleging that the death occurred during the course of and out of the employment while working in the bus. Late Balakrishnan was a driver under the 7th respondent. According to them, Balakrishnan died on 6.6.2003 due to heart attack which was the direct result of strenuous and continuous work as a driver and the death occurred during the course of and out of the employment while working in the bus.
3. The appellant denied the case that the deceased died due to the direct result of strenuous and continuous work. According to it, it was a natural death and there was no connection with the employment. There are various other contentions raised.
4. Before the Court of the Commissioner, the respondent examined AW1 who is the first respondent and AW2 who is the conductor of the bus in which the deceased worked. Besides Ext.A1 death certificate, Ext.A2 copy of heavy driving licence and badge, Ext.A3 copy of school admission register, Ext.A4 copy of electoral identity card, Ext.A5 newspaper Malayala Manorama dated 7.6.03 and Ext.A8 copy of charge sheet were also produced. The first opposite party who is the employer produced Ext.D1 copy of RC Book, Ext.D2 copy of permit and Ext.D3 copy of clearance certificate. The second opposite party, namely the appellant herein, produce Ext.M1 copy of insurance certificate and Ext.M2 statement of applicant.
5. The Commissioner found that the deceased was an employee. It was further found that the accident arose out of and in the course of his employment. Reliance was placed on the deposition of AW2 who was the conductor and who has deposed essentially that on 6.6.2003 in the Noon at 12.40 the deceased complained of acute chest pain, and that he was sweating all over the body and by the time he was taking water, he collapsed. He was taken to hospital and the duty doctor pronounced him dead and it was mentioned that he died due to heart attack. On the said basis, compensation of Rs.3,64,455/= was awarded with simple interest at 12 per cent per annum from 6.6.2003 till the date of deposit with funeral expense of Rs.2,500/=.
6. We heard the learned counsel for the appellant and the learned counsel appearing on behalf of respondents 1 to 6. Learned counsel for the appellant would contend that the Commissioner has acted illegally in not finding that the requirement of Section 3 of the Employee's Compensation Act, 1923 is not satisfied. There was no connection between the employment and the death. She relied on the decision of the Apex Court in Malikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd. and another (2009 (2) ACJ 723). She would submit that the post mortem certificate was not produced.
7. Per contra, learned counsel for respondents 1 to 6 would submit that this is a case where the deceased who was the driver met with sudden death owing to heart attack. He would submit that there was no previous history of any cardiac illness and he would submit that it was an accident under Section 3 of the Act, as it was an unexpected mishap. He would also submit that actually the employment in question, namely the employment of a driver does involve stress and strain and it is also pointed out that it was specifically averred before the Commissioner on the said lines. He would draw our attention to the decision of the Apex Court in Jyothi Ademma v. Plant Engineer, Nellore (2006 (3) KLT 426 (SC)). He would further draw our attention to a Bench decision of this Court in Shah v. Rajankutty (2005 (3) KLT 1014). He would further submit that the decision of the Supreme Court in Jyothi Ademma v. Plant Engineer, Nellore (2006 (3) KLT 426 SC) is distinguishable, as in that case, there was evidence of the deceased having a previous history of cardiac illness, which is not available in this case and that makes the distinction and the job of the person who died also was material.
8. Section 3 of the Act, in essence, provides for liability with the employer on the existence of the following indispensable elements:
There must be a personal injury caused; it should be to an employee by accident and it should arise out of and in the course of his employment. If these conditions are satisfied, the employer would become liable to pay compensation. The word "accident" has been considered by this Court in Shah v. Rajankutty (2005 (3) KLT 1014). Therein, the Court held as follows:
"Accident is not defined in the Workmen's Compensation Act, 1923. Therefore, the word "accident" should be understood in the popular and ordinary sense as denoting `an unlooked for mishap or an untoward event which is not expected or designed'. A death due to a natural disease (other than an occupational disease) is not an accident. Death of a workman by disease is not synonymous with accident. It is a natural death and not accident. But, the sudden death from the point of view of workman, who dies unexpectedly during the course of employment, without any disease is an `accident'. Self inflicted injuries and suicide are not accidents. Here, the workman fell down with head load, collapsed and died due to heart failure."
Thereafter, the Court also observed as follows, in regard to the question as to the connection required between the employment and death:
"It is true that even if the "death" is an accident on claimant's point of view, to get compensation, it must be in the course of employment and arising out of employment. Here, there is no dispute that the death was during the course of employment. Question is whether it is arising out of employment. The accident which resulted in the injury or death, must be connected with the employment and must arise out of it; there must be casual connection or association between the employment and the accidental injury. Only a casual connection or nexus is necessary. It is an admitted case that while carrying cashew bags, he fell down and, consequently, he died, even though ultimately his heart failed. Falling down while carrying cashew bags is an accident and that is the immediate cause which has accelerated the death of the workman. Therefore, he died due to personal injuries caused in an accident arising out of and in the course of employment."
9. It is further necessary to consider the decision of the Apex Court in Jyothi Ademma v. Plant Engineer, Nellore (2006 (3) KLT 426 SC). Therein, the deceased was working in Nellore Thermal Station. He died at the work spot. The job of the deceased was only to switch on and off and the doctor had opined that there was no scope for any stress or strain in his duties. More importantly, in the said case, it was brought on record that the deceased was suffering from chest disease and was being previously treated for the disease. It is important to notice the following observations of the Apex Court:
"6. Under S.3(1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies a 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. 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 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.
7. The expression "accident" means an untoward mishap which is not expected or designed.
"Injury" means physiological injury. In Fenton v. Thorley and Co. Ltd. (1903) AC 448, it was observed that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane AC, in Trim Joint District, School Board of Management v. Kelly (1914) A.C. 676 as follows:
I think that the context shows that in using the word "designed" Lord Macnaghten was referring to designed by the sufferer."
10. In the facts of this case, we must notice that the deceased was admittedly an employee. He was employed as a driver of a stage carriage. He was aged 39 years. The evidence of AW2 Conductor which has been accepted, would show that while working as a driver and clearly in the course of employment, he complained of acute chest pain, he sweated all over and he collapsed. Though he was taken to hospital, the doctor found him dead. The evidence would further show that the doctor opined that he died of heart attack. There is absolutely no evidence on record to show that the deceased had a history of heart disease. Here, we must remind ourselves the age of the deceased which is 39. We are also not to be unmindful of the suddenness with which death overtook the deceased. In short, the death was relatively swift and life was snuffed out in the space of a very short period of time. It can be clearly characterised as unexpected. An unexpected mishap from the point of view of the deceased, therefore, can be characterised as an accident. Further, as held by this Court, only a casual connection or nexus is necessary. Here, the employee was a driver of a stage carriage. It would be unrealistic to think that the job of a driver of a stage carriage does not involve stress and strain, particularly in the context of the competition which is a ground reality, and the very job of driving, particularly bearing in mind the time schedules which are imposed on stage carriages, makes stress unavoidable. It is certainly not like a person who merely switches on and off, as was the case in the decision in Jyothi Ademma v. Plant Engineer, Nellore (2006 (3) KLT 426 SC).
11. We must notice here that the learned counsel for the appellant made an attempt to refer to the FIR to suggest that in the same, there is no case that the death occurred due to stress and strain associated with the calling. Immediately, it is pointed out by the learned counsel for respondents 1 to 6 that the FIR was never produced and the same was not put to the witness. Whatever that be, we must remind ourselves here, that an Appeal under the Act is premised on the existence of a question of law and we would think that it may not be open for us to overturn the finding entered in the matter on an appreciation of evidence by the Commissioner in this regard.
12. Learned counsel for the appellant then invited our attention to the decision of the Apex Court in Malikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd. And another (2009 (2) ACJ 723). Therein, we must immediately notice the facts. The deceased was a driver. Along the way, he stopped and alighted from the vehicle, went to a nearby pond and he was taking a bath. While so, he slipped and fell into the pond and died. There, the Apex Court held that the facts were not sufficient in view of the legal principles discussed therein to fasten liability on either the insured or the insurer.
13. We would think that the case at hand is clearly distinguishable from the facts of the case considered by the Apex Court. There, the Apex Court found that there was no connection with the employment. In this case, as already noted, the deceased was a driver. The death occurred virtually in the bus while he was employed. Therefore, we feel that no reliance can be placed by the appellant on the said decision either. The upshot of the above discussion is that the appellant has failed to make out a case for interference with the findings and relief granted by the Commissioner. Accordingly, the Appeal fails and it is dismissed.