Full Judgment Text
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CASE NO.:
Appeal (civil) 4778 of 2006
PETITIONER:
Shakuntala Chandrakant Shreshti
RESPONDENT:
Prabhakar Maruti Garvali & Anr
DATE OF JUDGMENT: 10/11/2006
BENCH:
S.B. SINHA & MARKANDEY KATJU
JUDGMENT:
J U D G M E N T
[Arising out of SLP(C) No. 19222 of 2005]
S.B. Sinha, J.
Leave granted.
Prakash Chandrakant Shreshti (hereinafter called ‘the deceased’) was
working as a Cleaner in Vehicle No. MH 09A 9727. The said vehicle
belonged to Respondent No. 1. He was travelling in the said vehicle in the
night of 27.9.2002. He suddenly developed chest pain. He was admitted to
Government hospital, Mangaon where the doctor declared him dead.
Indisputably, the incident had occurred while deceased was performing his
duties.
Appellant herein, the mother of deceased filed a Claim Petition under
the Workmen’s Compensation Act, 1923 (for short, ’the Act’) before the
Commissioner for Workmen’s Compensation which was registered as
WCA/SR/19/2003. The vehicle being insured with the United India
Insurance Company, it was also impleaded as a party.
The fact that at the time of his death, the deceased was discharging his
duties is not disputed. The autopsy was conducted wherein the cause of
death was opined as Cardiac arrest due to Rupture Aortic Aneurysm. No
injury on his body was found. The only evidence which was brought on
record was by way of deposition of Appellant. It was alleged :
"\005My son died while working in the vehicle of R-1 and
due to the strain of work\005"
A copy of the Claim Petition has not been placed before us. We,
therefore, are not sure as to whether there was any requisite pleading. The
first Respondent, however, in his objection stated :
"...It is further true that the said vehicle is used for
carrying the milk and on 27.9.2002 at about 9.15 hours,
the driver of the said vehicle Parasharam Chandrakant
and the deceased\026cleaner Prakash Chandrakant came to
the Tavarewadi Chilling Centre for bringing the milk
from Kolhapur, at that time, the deceased-Cleaner while
getting down from the said vehicle got pain in the chest
and sat on the ground and immediately the driver of the
said vehicle taken him to dispensary to Government
Hospital, Mangaon. The Doctor of the said Hospital
stated that deceased-Cleaner died due to Cardiac arrest.
It is true that the said deceased died in the course of his
employment under this Respondent No. 1."
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The Insurer raised a plea of collusion between the employer and
Appellant in its written statement. It, however, need not be adverted to.
The Commissioner for Workmen’s Compensation raised several
issues. The issue with which we are concerned is Issue No. 2, which is as
under :
"2. Whether the accident occurred during the course of
employment and out of Employment?"
The Workmen’s Compensation Commissioner did not analyze the
evidence on record. It did not arrive at a finding that the deceased met with
an accident. It proceeded on the basis that deceased being a workman, it
was obligatory on the part of the first Respondent to maintain registers
under the provisions of the Minimum Wages Act.
The Commissioner, however, dealt with the legal issue as regards
meaning of ‘accidents and injury’, observing :
"15. The more usual case of an accident is an event
happening externally to a man. The less obvious cases of
accident are strain causing rupture, bursting of aneurism,
failure of muscular action of the heart, exposure to
draught causing chill, exertion in a stokehold causing
apoplexy, shock causing neurasthenia etc. Lord Atkin
called them as "Internal Accident". In such cases, it is
hardly possible to distinguish in time between the
‘accident’ and ‘injury’. The rupture is an accident, at the
same time injury leading to death or incapacity at once or
after a lapse of time. Thus in cases of internal accidents,
"Accidents" and "Injury" coincide.
16. What the Act, therefore, really intends to convey is
what might be expressed as an ‘accidental injury’. But
the common factor in all cases of accident, whether
‘internal’ or ‘external’ is some concrete happening at a
definite point of time and incapacity resulting from
happening.
17. An accident happening to a person in or about any
premises at which, he is for the time being employed for
the purpose of his employer’s trade or business shall be
deemed to arise out of and in the course of employment."
Legal propositions are not in dispute. What is in dispute is whether
the deceased died of an accidental injury in the course of and out of
employment.
An appeal was preferred thereagainst before the High Court by
Respondent No. 3 under Section 30 of the Act. The said Appeal has been
allowed by reason of the impugned judgment. The High Court opined that
the findings of the Workmen’s Compensation were perverse and inconsistent
with the material on record as also bereft of any reason.
It was held:-
"There is no material evidence to show that the
deceased workman was suffering from a heart ailment.
There is also no evidence to demonstrate that the
workman was put through a sudden stressful condition in
the course of his duties, which brought on a cardiac
arrest. In the face of these circumstances, the reasoning
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of the Commissioner that the workman died as a result of
an accident during and in the course of his employment,
is difficult to be sustained."
Extensive reference was made by the High Court in its judgment to
the decisions of this Court in Regional Director, ESI Corporation and
Another v. Francis De Costa and Another [(1996) 6 SCC 1] and Saurashtra
Salt Mfg. Co v. Bai Valu Raja Raja and Others [AIR 1958 SC 881], to
opine that the death of the workmen was not during the course of his
employment.
Learned counsel appearing on behalf of Appellant would submit that
the High Court committed a manifest error in arriving at the said finding
insofar as it failed to take into consideration that by reason of the strain of
work, the cause of the death was accelerated. As the Commissioner of the
Workmen’s Compensation Commission arrived at a finding of fact, it was
urged, the same could not have been interfered with by the High Court in
exercise of its jurisdiction under Section 30 of the Act as no substantial
question of law arose for its consideration.
Mr. Nandwani, however, supported the judgment of the High Court.
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.
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; and (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 service strain during his
services was caused.
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 employer, he at the relevant time was
merely getting down from the vehicle.
The driver of the vehicle who was brother of the deceased was the
best witness to state as to under what circumstances the deceased met with
his death or whether the death was occurred due to some strain. He did not
examine himself. The doctor who performed post mortem examination was
also not examined.
Sufferance of heart disease amongst young persons is not unknown .
A disease of heart may remain undetected. A person may suffer mild heart
attack but he may not feel any pain. There must, thus, be some evidence
that the employment contributed to the death of the deceased. It is required
to be established that the death occurred during the course of employment.
This Court in E.S.I. Corporation (supra) referred to with approval the
decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig,
[1940 AC 190], wherein it was held :
"Nothing could be simpler than the words ‘arising
out of and in the course of employment’. It is clear that
there two conditions to be fulfilled. What arises ‘in the
course of the employment is to be distinguished from
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what arises ‘out of the employment’. The former words
relate to time conditioned by reference to the man’s
service, the latter to casualty. Not every accident which
occurs to a man during the time when he is on his
employment - that is, directly or indirectly engaged on
what he is employed to do - gives a claim to
compensation, unless it also arises out of the
employment. Hence the section imports a distinction
which it does not define. The language is simple and
unqualified\005"
We are not oblivious that an accident may cause an internal injury as
was held in Fenton (Pauper) v. J. Thorley & Co. Ltd., [1903 AC 443], by
the Court of Appeal :
"\005I come, therefore, to the conclusion 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."
Lord Lindley opined :
"The word "accident" is not a technical legal term
with a clearly defined meaning. Speaking generally, but
with reference to legal liabilities, an accident means any
unintended and unexpected occurrence which produces
hurt or loss. But it is often used to denote any unintended
and unexpected loss or hurt apart from its cause; and if
the cause is not known the loss or hurt itself would
certainly be called an accident. The word "accident" is
also often used to denote both the cause and the effect,
no attempt being made to discriminate between them.
The great majority of what are called accidents are
occasioned by carelessness; but for legal purposes it is
often important to distinguish careless from other
unintended and unexpected events."
There are a large number of English and American decisions, some of
which have been taken note of in ESI Corporation (supra), 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.
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.
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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.
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.
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 employment
2. nature of employment
3. injury aggravated due to stress and strain
The deceased was traveling in a vehicle. The same by itself can not give
rise to an inference that the job was strenuous.
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.
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.
In Saurashtra Salt Manufacturing Co. (supra), this Court held :
"\005It is well settled that when a workman is on a public
road or a public place or on a public transport he is there
as any other member of the public and is not there in the
course of his employment unless the very nature of his
employment makes it necessary for him to be there. A
workman is not in the course of his employment from the
moment he leaves his home and is on his way to his
work. He certainly is in the course of his employment if
he reaches the place of work or a point or an area which
comes within the theory of national extension, outside of
which the employer is not liable to pay compensation for
any accident happening to him. In the present case, even
if it be assumed that the theory of notional extension
extends upto point D, the theory cannot be extended
beyond it. The moment a workman left point B in a boat
or left point A but had not yet reached point B, he could
not be said to be in the course of his employment and any
accident happening to him on the journey between these
two points could not be said to have arisen out of and in
the course of his employment. Both the Commissioner
for Workmen’s Compensation and the High Court were
in error in supposing that the deceased workmen in this
case were still in the course of their employment when
they were crossing the creek between points A and B.
The accident which took place when the boat was almost
at point A resulting in the death of so many workmen
was unfortunate, but for that accident the appellant
cannot be made liable."
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In General Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes
[AIR 1964 SC 193], referring to the decision of Court of Appeal in Jenkins
v. Elder Dempster Lines Ltd. [(1953) 2 All ER 1133], this Court opined
therein that a wider test, namely, that there should be a nexus between
accident and employment was laid down. It also followed the decision of
this Court in Saurashtra Salt Manufacturing Co. (supra).
This Court in ESI Corporation (supra) was dealing with a case where
the Respondent met with an accident while he was on his way to his
employment. The accident occurred at a place which was about 1 K.M.
away from the factory.
In Mackinnon. Mackenzie & Co. (P). Ltd. v. Ibrahim Mahammad.
Issak [AIR 1970 SC 1906], this Court held :
"5\005To 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 is incidental to it. The words arising out of
employment are understood to mean that during the
course of the employment, injury has resulted from some
risk incidental to the duties of the service, which, unless
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 applies 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\005"
The question recently has been considered by a Bench of this Court in
Jyothi Ademma v. Plant Engineer, Nellore, [2006 (7) SCALE 28] wherein it
was opined :
"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 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 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". "
Learned counsel appearing on behalf of Appellant seeks to distinguish
this decision stating that therein the job of the workman was merely to
’switch on and switch off’ and thus there has been no scope of stress and
strain in his duties and that the workman had been suffering from a heart
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disease. But in this case also job of a cleaner was not strenuous and in any
event far less that of driver of the vehicle.
Only because the cause of death was due to heart attack, the same by
itself may not be a ground to arrive at a conclusion that an accident had
occurred resulting in injury.
The nature of duty of the deceased was that of a helper. Per se that
the duties would not be such which could cause stress or strain. If an
additional duty were required to be performed by him, the same was
required to be clearly stated.
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.
Section 30 of the said Act postulates an appeal directly to High Court
if a substantial question of law is involved in the appeal.
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 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.
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 arose
or not.
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.
We are not oblivious of the proposition of law as was stated by
Frankfurter, J. in J.J.O’ Leary, Dy. Commnr., Fourteenth Compensation
Distt. v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that
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the court will not disturb a finding of an Administrative Tribunal when two
views are possible and only because the appellate court can take a contrary
view. But in the instant case, the Commissioner did not go into the
jurisdictional facts not arrived at any finding based on any legal evidence in
regard to the causal connection between the employment and the death.
We, therefore, are of the opinion that ultimate conclusion of the High
Court may be correct. We although would not, thus, interfere with the
impugned judgment, but would direct that in event any amount has been
paid to Appellant the same need not be refunded.
The Appeal is dismissed subject to the observations made
hereinbefore