Jamna Devi and ors. Vs. Secretary Iph and anr. - Court Judgment

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labour and industrial - compensation - section 3(1) of the workmen's compensation act, 1923 - appeal has been filed against award of commissioner, workmen's compensation, whereby he has rejected petition filed by claimants for grant of compensation on ground that claimants have failed to prove any causal connection between death of deceased/workman and his employment - whether death of deceased has a causal connection with his employment? - held, no post mortem of deceased/workman was conducted - no medical evidence has been led by claimants to show that deceased/workman died due to accident which had any causal connection with his employment - there is no material to show that stomach ache suffered by deceased/workman was result of stress and strain of work or any other cause connected with his employment - in view of above, it could b held that there is no causal connection between death of deceased and employment, which required for grant compensation under section 3(1) of act - thus, there is no error in order of commissioner, workmen's compensation - question is answered against claimants - appeal dismissed - code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.deepak gupta, j.1. this appeal under section 30 of the workmen's compensation act (hereinafter referred to as the 'act') is directed against the award of the commissioner, workmen's compensation, h.p.pwd, south zone, shimla dated 4.8.2005 whereby he has rejected the petition filed by the claimants for grant of compensation on the ground that the claimants have failed to prove any causal connection between the death of the workman and the employment.2. the undisputed facts of the case are that the claimants are the widow and children of deceased narpat. the deceased narpat was working as helper/keyman in the irrigation and public health department at the pump house. on 17.12.1996 he suffered a stomach ache. according to the claimants, the stomach ache arose because of some accident due to stress and strain of work whereas according to the respondents, stomach ache was a natural disease and had no connection with the employment of the deceased. this appeal was admitted on the following questions of law:1. whether mis-appreciation of evidence and the law applicable has vitiated the impugned order as passed by the court below?2. whether the mis-reading/misappreciation of document pw-1/b and pw-1/c has vitiated the impugned order as passed by the court below?3. the only question which arises for the decision of the case is whether the death of the deceased has a causal connection with his employment.4. section 3(1) of the act, which is relevant for the purpose of the case, reads as follows: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 workmen.5. the apex court in jyothi ademma v. plant engineer, nellore and anr. : (2006) 5 scc 513 considered the import of this section and held as follows:6. under section 3(1) it has to be established that there was some causal 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 & co. ltd. (1903) ac 443, 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 a.c. 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.8. in the present case it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. the high court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. in view of the factual findings recorded the high court's judgment does not suffer from any infirmity.6. the apex court again considered the language of section 3(1) in shakuntala chandrakant shreshti v. prabhakar maruti garvali, (2007) 11 sc 668. this is a very detailed judgement in which the entire law on the subject has been considered in detail. the relevant portion of the judgement reads as follows:15. the said act was enacted to provide for payment by certain classes of employers to workmen for compensation against injury by accident. the term `accidental injury' has not been defined under the act. the liability of the employer for payment of compensation, however, would arise if a personal injury is caused to a workman by accident arising out of and in the course of his employment. what is necessary for attracting the charging provision contained in section 3 of the act is that (i) an injury must be caused to a workman; (ii) such injury must have been caused by an accident; and (iii) it arose out of or in the course of his employment.16. before we analyze the provisions of the act, we may notice that in the complaint petition, there was no allegation that (i) the deceased met with his death by reason of any strain of work; (ii) appellant had no personal knowledge as regards quantum of or nature of work required to be performed by the deceased; and (iii) as to how severe strain during his service was caused.17. the deceased had admittedly suffered a massive heart attack. nothing has been brought on record to show that the heart attack was caused while doing any job. even according to the employer, he at the relevant time was merely getting down from the vehicle.7. the apex court after considering a number of earlier judgements further went on to hold as follows:22. there are a large number of english and american decisions, some of which have been taken note of in esi corporation in regard to essential ingredients for such finding and the tests attracting the provisions of section 3 of the act. the principles are:(1) there must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.(2) the onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.(3) if the evidence brought on records establishes 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, but the same would depend upon the fact of each case.23. injury suffered should be a physiological injury. accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. a finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed.24. there is a crucial link between the causal 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 employment2. nature of employment3. injury aggravated due to stress and strain.27. the deceased was traveling in a vehicle. the same by itself can not 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 of 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.8. the apex court further went on to hold as follows: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.39. section 30 of the said act postulates an appeal directly to high court if a substantial question of law is involved in the appeal.40. a jurisdictional question will involve a substantial question of law. a finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. from the order passed by the commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain. it was merely stated that he was working as a khalasi in a truck which was going to tavarewadi village from kolhapur to get the milk. the autopsy was conducted at chandgad district hospital. the driver prashant chandrakant shreshti admittedly brought him to hospital. he was his brother. the post mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day. from the post mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. when exactly the death took place is not known. it will bear repetition to state that under what circumstances the death took place is also not known. there was also no pleading in this behalf. the commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a causal connection between accident and serious injury so as to fulfill the requirements of the terms 'out of employment'. indisputably, there has to be an proximate nexus between cause of death and employment. a stray statement made by the appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. admittedly she was not present at the spot. she had also no personal knowledge. all these facts she had admitted in cross-examination.41. this vital aspect of the matter was required to be considered by the high court so as to arrive at a finding as to how the said accident has arisen or not.42. a question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. a question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record.9. a perusal of the aforesaid judgement clearly shows that a jurisdictional question is involved in such like cases and this jurisdictional question is a substantial question of law.10. similar view has been taken malikarjuna g. hiremath v. the branch manager, the oriental insurance co. ltd. and anr. jt 2009 (2) sc 396. in that case, the driver of a truck died in a drowning accident. the apex court held that it had not been proved that drowning of the workman had any causal connection with his work as driver. following the similar principle as laid down in the earlier judgements, the apex court rejected the claim of the workman.11. in the present case even if the evidence led by the claimants is accepted to be correct there is nothing on record to prove why and how the deceased suffered from a stomach ache. the witnesses on behalf of the claimants are the widow and the son of the deceased. admittedly they were not present when the deceased suffered a stomach ache. they have no personal knowledge with regard to the cause of stomach ache. no doubt in their statements they had stated that the stomach ache occurred due to the stress of work.12. on the other hand, rw/1 who was the pump operator alongwith the deceased-workman at pump house, has stated that at about 4.00 p.m. on 17.12.1996 the deceased suffered a stomach ache. thereafter he shut down the pump and took the deceased firstly to his house from where alongwith the wife and son of the deceased, dalip kumar, they all went towards the hospital at darlaghat and on the way the deceased died. this witness has been cross- examined and clearly stated that no accident took place during the duty hours. he has also denied the suggestion that the deceased suffered any injuries due to an accident and this resulted in his death. a suggestion has been put to him that in fact narpat did not die due to stomach ache and his statement to this effect is incorrect.13. rw/2 was the junior enginener, incharge of the pump house. he was also not present at the time when the accident took place. he has stated that he was informed that narpat had died on 17.12.1996. according to him he died at his house.14. sh. sanjeev bhushan, learned counsel for the appellants has urged that there is a contradiction between these two witnesses in as much as rw/1 has stated that deceased died on the way from the house to the hospital whereas rw/2 has stated that he was died at his house. this contradiction is not very material and in an event does not in any manner show that the death had any causal connection with the work of the deceased.15. the claimants themselves have placed on record the order of the national consumer disputes redressal commission, new delhi passed in the revision petition no. 1382 of 2001. the facts leading to the aforesaid order are that the employer-state had covered liability in respect of workman with the insurance company. the district forum held that the death of narpat was not on account of any accident and his case did not fall within the purview of the policy and rejected. the claimants filed an appeal before the state commission. the state commission came to the conclusion that since no inquiry was held into the death of narpat ram it could be presumed that the deceased died due to an accident and, therefore, the claimants could not be deprived of the benefit of the policy and the state as well as the insurance company were held liable. the national consumer disputes redressal commission held that narpat had died a natural death. according to the national commission, before introduction of janata personal accident insurance policy scheme, a communication was addressed by the state to the various heads of the departments in which the employees were given to understand that the insurance policy will cover death in all circumstances including natural death. it, therefore, held the state liable to pay the amount payable under the policy. however, the insurance company was exonerated since the death in question was not the result of an accident. from this judgment itself, it is apparent that the national commission held that the deceased had not died due to any accident.16. it would be pertinent to mention here that no post mortem of the body of narpat was conducted. no medical evidence has been led by the claimants to show that deceased narpat died due to an accident which had any causal connection with his employment. he may have died during the employment. death during employment by itself is not covered under the workmen compensation act unless the claimants show that the death occurred due to an accident during employment and had some causal connection with the employment. in malikarjuna's case supra, the apex court in the case of a driver who died due to drowning which admittedly is an accident held that the claimants were not entitled for compensation under the workmen compensation act since it was not proved that the drowning of the workman had any causal connection with his work and employment.17. in the present case, there is no material to show that the stomach ache suffered by the deceased was a result of stress and strain of work or any other cause connected with his employment.18. in view of the above discussion, there is no error in the order of the commissioner, workmen's compensation. both the questions are answered against the appellant. the appeal is accordingly dismissed. no order as to costs.