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ORIENTAL INSURANCE versus CHINNAPILLAI

High Court of Madras

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Oriental Insurance v. Chinnapillai - CMA.NPD.1396 of 2001 [2007] RD-TN 2246 (10 July 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED : 10.7.2007

CORAM

THE HONOURABLE MR. JUSTICE R.SUDHAKAR

C.M.A.(NPD)No.1396 of 2001

and

C.M.P.No.18494 of 2001

The Oriental Insurance Co. Ltd.,

Kovai-18, by Regional Office,

U.I. Building,

Esplanade,

Chennai-600 108. ... Appellant/2nd respondent Vs

1. Tmt. Chinnapillai

2. Management of Anai Mudi Estate,

Mudis Post,

Tamil Nadu  642 117. ... Respondents/Claimant and first respondent Prayer: This Petition is filed under Section 30 of the Workmen's Compensation Act, 1923 against the order of the Deputy Commissioner of Labour & Commissioner for Workmen's Compensation, Coimbatore dated 23.4.2001, in W.C.No.29 of 2000. For Appellant : Mr. M.Vijayaraghavan For Respondents : Mr.P.Srinivasan for R1 : No appearance for R2 -----

JUDGMENT



One Periyasamy, who was working as a permanent employee in the second respondent Tea Estate died on 1.7.1999. On 1.7.1999, at 10.45 a.m., when Periyasamy was working in the Estate by plucking tea leaves, he developed chest pain and the Supervisor called for an ambulance and Periyasamy was taken to Mudis Garden Group Hospital. When they reached the hospital, the Doctor examined the said Periyasamy and declared that he had died. The wife of the deceased Periyasamy filed a claim petition before the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour on the above narrated facts stating that her husband was aged about 48 years at the time of death on 1.7.1999, and he had died in the course of employment and due to stress of employment and entitled to compensation under the Workmen's Compensation Act.

2. The claim was resisted by the Insurance Company, the appellant herein. The Insurance Company, the second opposite party before the Deputy Commissioner of Labour filed a counter statement stating that the death was a natural cause which is stated as "Myocardial Infarction". Several other contentions were also raised.

3. The Commissioner for Workmen's Compensation and Deputy Commissioner of Labour considering the evidence on record and the pleadings of parties held that the deceased Periyasamy suffered chest pain on 1.7.1999 and died while he was in employment with the first opposite party, namely, the Management of the Estate. The Commissioner held that Periyasamy died due to chest pain at the time of employment and therefore, the claimant is entitled to invoke the provisions of the Workmen's Compensation Act. Based on the income of the deceased, the compensation at Rs.1,47,217/- was determined together with 12 interest. While coming to such conclusion the Commissioner relied upon the decision reported in 1998 L.L.J Volume II 30 (United India Insurance Company Vs. C.S.Gopalakrishnan), wherein the Kerala High Court held as hereunder:- "..... in order to bring the accident within Sec.3 it is not necessary that it should be established that the workman died as a result of exceptional strain or some exceptional work that he did on the day in question. If the nature of work and hours of work caused great strain to the employee and the strain caused the unexpected death, it can be said that the workman died as a result of accident which has arisen in the course of his employment"

4. On going through the award, it is apparent that the finding of the Commissioner for Workmen's Compensation is based only on the decision of the Kerala High Court. The Commissioner merely held that the deceased died on 1.7.1999, at 10.45 a.m. while he was working in the tea garden and there is a link between the death and the employment.

5. The appellant aggrieved by the finding of the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour has challenged the award on the ground that the deceased did not suffer any injury and there was no accident. Therefore, the deceased did not die in an accident in the course of employment and the death was not out of employment. Learned counsel for the appellant relied on the decision of the Apex Court reported in (2007-1-L.W. 601) Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali & another stating that there is no causal connection between the death and the employment. No accident occurred during the course of employment causing the death of the deceased. There is no evidence brought on record to show that the deceased died due to stress and strain of work in the course of employment. The appeal was admitted on the following substantial question of law:- "Whether the death of deceased could be said to be due to personal injury caused in an accident arising out of and in the course of his employment, having regard to the facts and circumstances of the case?"

6. Learned counsel for the first respondent/claimant submitted that the death had occurred on 1.7.1999, at 10.45 a.m., while the deceased was in employment, and it is only due to the stress and strain at the time of plucking tea leaves he died. By the nature of employment in a tea garden, the employees are subjected to stress and strain and therefore, the death had occurred only in the course of the employment and in an accident that arose out of employment.

7. In the instant case, it is not in dispute that the deceased workman was working in the Tea Estate of the second respondent Management and at about 10.45 a.m. he developed chest pain and was immediately taken to hospital. It is also not in dispute that there is no recorded accident or injury caused to the deceased workman at the time of employment. The Commissioner based on the pleadings in the claim petition, came to the conclusion that there is a link between the death and employment.

8. To invoke the provisions of Section 3 of the Workmen's Compensation Act, there must be an injury caused to the workmen, and such injury must be caused by an accident which arose out of and in the course of employment. In the claim petition, it was only stated that the deceased workman died due to stress and strain of the work. However, there is no material to show that the deceased suffered stress and strain in the course of employment and in any event the claimant has not brought on record any material to show that by the nature of work in plucking tea leaves on the fateful day there was stress and strain which caused the death. No evidence was let in on behalf of the claimant on this aspect. The claimant did not choose to examine a co-worker of the deceased to show that there was stress and strain in the nature of work performed by the deceased on the fateful day. Merely on the basis of the pleading, the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour came to the conclusion that there is a link between the death and the employment. The finding is based on no evidence and there is no material to support such finding. The claimant has failed to establish that there was an injury caused to the workman and such injury was caused by an accident which arose out of and in the course of employment. Merely because, the death has taken place in the course of employment, it will not amount to an accident. There should be positive evidence and material to support that the death was due to an accident arising out of and in the course of employment. In this case, there is no evidence let in by the claimant and there is no finding by the Deputy Commissioner of Labour on this crucial aspect. Undisputedly, the deceased in the case was plucking tea leaves in the tea garden and there were co-employees, who could have been examined. There is no medical evidence to support the case of an accident or to show that there is a link between the causal connection of employment with death. Therefore, the finding of the Deputy Commissioner of Labour without proper material, pleading or evidence, is an error apparent on the face of records, and therefore, amount to jurisdictional error while exercising his power under the provisions of the Act.

9. In the case of Shakuntala Chandrakant Shreshti  vs. - Prabhakar Maruti Garvali & another reported in 2007-1 Law Weekly 601, in respect of a cleaner in a lorry, who developed chest pain and died while in the course of employment, a claim for compensation under the provisions of Workmen's Compensation Act was made. In the said case, the deceased workman died due to chest pain in the course of employment. The Commissioner held in favour of the claimant/mother, which was reversed by the High Court. The Apex Court upheld the decision of the High Court and while doing so, sets out the parameters for considering a claim under Workmen's Compensation Act. The facts of the case decided by the Apex Court is similar to the present one. It will be useful to refer the same and the same is set out hereunder as mentioned in paragraphs 21 to 27, 35 and 37 of the Apex Court decision:- "21. 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.

22. 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.

23. 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.

24. 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

25. The deceased was traveling in a vehicle. The same by itself cannot give rise to an inference that the job was strenuous.

26. 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.

27. 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." xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx "35. 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." xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx "37. ..... Indisputably, there has to be a 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."

10. Further, in the case of Mackinnon & Co.(P). Ltd., - vs. - Ibrahim Mahammad Issak (AIR 1970 SC 1906), the Apex Court held:- "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 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." (emphasis supplied)

11. The deceased in this case suffered a massive heart attack. The death it is stated is due to "Myocardial infarction". Merely because the death is due to heart attack that by itself cannot be a reason to arrive at a conclusion that an accident had occurred resulting in an injury out of employment. In this case, the deceased was plucking tea leaves in the tea garden along with other co-workers. He alone suffered heart attack. In the absence of any evidence by a co-worker, it cannot be said that there was stress and strain in the employment and that the deceased was exposed to added duty or burden on the fateful day resulting in the death.

12. In the instant case, the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour did not go into the factual issues and has not given any finding based on evidence with regard to the causal connection between the employment and the death. The finding of the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour that there is a link between the death and the employment is based on no evidence. There is nothing to show that, an accident occurred in the course of employment, which would connect the death of the deceased and that it arose out of employment. There is no finding with regard to stress and strain in the employment and consequent to the same the deceased died. The award is based purely on the decision of the Kerala High Court. Even in the decision of the Kerala High Court, emphasize has been made on stress and strain in employment to be considered by the authority, which is absent in the present case. In this case, there is no evidence to show that there was stress and strain in the course of employment nor a finding by the Commissioner for Workmen's Compensation on that ground. Tested on the parameters laid down in the two decisions of the Apex Court (cited supra), the order of the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour is not sustainable both in law and on facts.

13. The finding of the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour is, therefore, based on conjectures and surmises. It is based on no evidence.

14. On the basis of undisputed facts of the present case, the claimant has not made out a case for invoking the provisions of the Workmen's Compensation Act. The question of law raised is answered in favour of the appellant. The appeal is allowed. The order of the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour is set aside and the Claim petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Akv/ts

To

1) The Deputy Commissioner of Labour and

Commissioner for Workmen's Compensation,

Coimbatore.

2) The Record Keeper,

V.R. Section,

High Court,


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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