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Judgment
S. Palanivalu, J.—The allegations contained in the petition in compact are as follows:
(i) The petitioners are parents of one S. Vatsalakumari @ Vatsala, who was employed as Stitcher in the opposite party company for about 9
months. She was getting a sum of about Rs. 3,500/- by way of salary and other emoluments per month. On 17.07.1999, while she was on duty
attending to the stitching work, the double needle of a power machine pierced through the index finger of her right hand. Immediately, it was
brought to the notice of the officers concerned of the management. But they cannot refer the matter to E.S.I. Hospital, because no such facility
could be available regarding their company. They did not send her to their private doctor also. Therefore, they asked her to go and seek the
treatment outside, from private doctors. Hence, she had no other alternative than to go out to take treatment privately. She went to a private
doctor at Gudiyatham. When the pain became unbearable due to the injuries sustained by her, she was advised to go to C.M.C. Hospital at
Vellore. On 18.07.1999 morning she was taken to Vellore C.M.C. Hospital, where she was declared dead. The fact of the death was also
intimated to the opposite party.
(ii) Her death occurred while she was in the course of her employment under the opposite party. She died due to injuries sustained by her while
she was on duty. Being her parents and her dependents, the applicants are entitled for the compensation and for the terminal benefits payable on
the death of Vatsalakumari. They sent notice claiming compensation for which the opposite party responded with false allegations. Apart from that,
the opposite party offered to pay a very low amount towards all the benefits for which the deceased entitled to. As a matter of fact, the opposite
party are liable to pay a huge amount. The deceased was aged about 27 years at the time of accident. Hence, the appellants are entitled for
compensation of lumpsum payment of Rs. 2,56,284/- from opposite party as calculated below:
2000 x 60/100 x 213.57 = 2,56,284.00
The contentions in the counter are condensed as follows:-
(i) No death took place due to any accident arising out of and in the course of employment. It is incorrect to allege that double needle of the power
machine had pierced into the right hand index finger of the deceased and that it was brought to the notice of the officers. It is also false to state that
they expressed their inability to refer her either to E.S.I. Hospital or to seek any treatment outside. The nature of treatment allegedly obtained by
Vatsalakumari had been kept secret all along by the petitioners. They may be directed to produce medical certificate for any treatment allegedly
obtained from private doctor at Gudiyatham whose name has not disclosed anytime as well as treatment obtained in C.M.C. Hospital. She
appears to have died under suspicious circumstances which are not disclosed. They have not produced any doctor''s certificate to establish the real
cause for death but have suppressed the same. They are attempting to make fortune at the evil advice of others by misleading the Court. No
accident took place at the premises of the respondent or while at work that necessitated any medical attendance or treatment. The petitioners have
also filed C.P. No. 199 of 2000 before the Labour Court, Vellore with false claims. The respondents is not liable to pay compensation.
(ii) Vatsalakumari was drawing only Rs. 2,471/- per month and not as stated in the petition. The age of the deceased and the dependency of the
petitioners are denied. On 17.7.1999 at about 12.45 p.m. Vatsalakumari asked for permission to go home. When the supervisor asked for the
reason, she stated that she was injured by the needle on the top of her finger while adjusting the needle. Since, it was a minor injury she was
permitted to go home under the permission letter presented by her duly attested and recommended by the supervisor, stamped by the security staff
at the gate in the normal course. If the injury had been so serious as alleged, she would have applied for medical leave and would have also
obtained a medical certificate from the doctor. Hence the petition has to be dismissed.
After going through the evidence on record, the Deputy Labour Commissioner No. 1, Chennai, passed an award observing that Vatsalakumari
died in the course of and out of employment and hence opposite party has to pay compensation of Rs. 2,15,280/- by adopting the following
formula:
Age: 26 years
Factor: 215.28
Monthly income : Rs. 2,000/- (Consolidated)
Compensation : 50/100 x 2000 x 215.28
= Rs. 2,15,280/-
Aggrieved against the award passed by the Deputy Commissioner of Labour, the opposite party has carried the same before this Court.
Admittedly, Vatsalakumari was working in the appellant''s establishment as Stitcher for nine months and that she sustained needle prick in her
right hand finger while she was performing her duty and she left the office immediately. The nature of the injury is certified under Ex.A.7 by P.W.2
Doctor. It is the definite version of the respondents that their daughter faced her death on account of the pierce of the double needle at the time of
employment.
Per contra, Mr. Habibullah Basha, learned Senior Counsel for the appellant would contend that inasmuch as the respondents have not
established that Valsalakumari died by the injury and the evidence available on record is not adequate to reach a conclusion that the injury was
sufficient to cause death.
P.W.1, father of the deceased would depose that after she came to the house, she was taken to the private doctor Afizudin Ahamed in
Gudiyatham and since the swelling was further aggravated with more pain, she was immediately removed to C.M.C. Vellore and she breathed her
last on the way; that she was aged 27 years at the time of death and was earning Rs. 3,500/- monthly salary. P.W.2 Dr.Afisudin Ahmed, retired
Government Doctor practicing in Gudiyatham would say that he gave first aid to Vatsalakumari for her injury in right index finger and that in his
opinion the injury may be the cause for the death. In his cross examination he stated that there was no oozing of blood and he gave Ex.A.7 First
Aid Certificate on the same day for production to the employer and that he did not see the injured thereafter. He has not stated whether he applied
tetanus toxoid injunction to her. As a doctor treated a patient to come with the above said complaint, it is comprehensible that he would administer
a tetanus toxoid injection. But in this case he had not done so.
R.W. 1, the Production Manager under the appellant, says that on 17.7.99, Vatsalakumari, after sustaining injury in her finger, obtained
permission and left the factory. In his cross examination he says that he was no E.S.I. coverage for the establishment. However, he says that the
first aid box was available; that no doctor was nominated for the establishment and that he did not see the wound properly.
In the light of the available oral evidence on record, the fact that whether Tetanus occurred in the body of the deceased has led to the death of
the deceased has to be found out, for which this Court has gone through some medical authorities in the field of Microbiology. If the period of
incubation and its perilous consequences of tetanus microbe medically called as ''Clostridium Tetani'' are to happen, develop and casualty to occur
within 24 hours, it can be concluded that the deceased expired of tetanus. If it is above 24 hours, requiring a longer period to proliferate so as to
make the injured to expose various critical external symptoms, before death, if not medically attended, then it could be decided otherwise.
In ''Harrison''s Text Book of Medicine'' 17th Edition, in Page 840 and 841, the following texts are found with regard to the above said
Clostridium Tetani.
Clinical Manifestation:
Generalized tetanus, the most common form of the disease, is characterized by increased muscle tone and generalized spasms. The median time of
onset after injury is 7 days; 15% of cases occur within 3 days and 10% after 14 days.
Typically, the patient first notices increased tone in the masseter muscles (trismus, or lockjaw). Dysphagia or stiffness or pain in the neck, shoulder
and back muscles appears concurrently or soon thereafter. The subsequent involvement of other muscles produces a rigid abdomen and stiff
proximal limb muscles; the hands and feet are relatively spared. Sustained contraction of the facial muscles results in a grimace or sneer (risus
sardonicus), and contraction of the back muscles produces and arched back (opisthotonos). Some patients develop paraxysmal, violent, painful,
generalized muscle spasms that may cause cyanosis and threaten ventilation. These spasms occur repetitively and may be spontaneous or
provoked by even the slightest stimulation. A constant threat during generalized spasms is reduced ventilation or apnea or laryngospasm. The
severity of illness may be mild (muscle rigidly and few or no spasms), moderate (trismus, dysphagia, rigidity and spasms) or severe (frequent
explosive paroxysms). The patient may be febrile, although many have no fever; mentation is unimpaired. Deep tendon reflexes may be increased.
Dysphagia or ileus may preclude oral feeding.
It is also mentioned as follows:
Antitoxin: Given to neutralize circulating toxin and unbound toxin in the wound, antitoxin effectively lowers mortality; toxin already bound to neural
tissue is unaffected. Human tetanus immune globulin (TIG) is the preparation of choice and should be given promptly.
It could be conceived that the tetanus could cause neurologic disorder, as per the above said text book. In the same page it is stated that it is
characterized by increased muscle tone and spasms, that is caused by tetanospasmin, a powerful protein toxin elaborated by Clostridium Tetani
and Tetanus occurs in several clinical forms, including generalized, neonatal and localized disease.
P.W.1 has stated that after Vat-salakumari received injury and came to the house, there was swelling in the site of injury. He has stated nothing
before the Commissioner that his daughter was suffering from any neurological disorder. Further if any neurological disorder occurred, it would
have definitely exposed complications. It is also mentioned in the book that the c-tetani (in short) does not itself evoke inflammation, and the point
of entry retains a benign appearance unless infection with other organisms is present.
In Medical Microbiology edited by David Greenwood and two others (16th Edition) the following excerpt is found in page 237:
Clinical features of tetanus:
The onset of signs and symptoms is gradual, usually starting with some stiffness and perhaps pain in or near a recent wound. In some cases the
initial complaint may be of stiffness of the jaw (lockjaw). Pain and stiffness in the neck and back may follow. The stiffness spreads to involve all
muscle groups; facial spasms produce the ''sardonic grin'', and in severe cases spasm of the back muscles produces the opisthotonos (extreme
arching of the back) beloved of textbook writers. The period between injury and the first signs is usually about 10-14 days, but there is a
considerable range.
In ''Mosby''s Medical Dictionary 2004 Edition, the following are in the tabular column, in Page 1552.
Name Synopsis of symptoms Incubation period Mode of Period of
transmission communicability
Tetanus Acute disease induced by4 to 21 days, Tetanus spores Not directly
(tetanus tetanus bacillus that dependent on introduced into transmitted from
neonatorum, grows an-aerobically at character, extent body during injury, person to person.
lockjaw) site of injury and and location of usually puncture
produces neurotoxin. wound; average would
Characterized by painful 10 days. Most contaminated with
muscular contractions, cases occur withinsoil, street dust or
abdominal rigidity. 14 days. animal or human
faces, but also
through lacerations,
burns.
Below is the extract of from ''Current Medical Diagnosis & Treatment'' [2006 Lange] (45th Edition). In page No. 1409 it is mentioned as
follows:
General Considerations:
Tetanus is caused by the neurotoxin tetanospasmin, elaborated by Clostridium tetani. Spores of this organism are ubiquitous in soil and may
germinate when introduced tetano-spasmin, a zinc metalloprotease that claves synaptobrevin, a protein essential for neurotransmitter release.
Tetanospasmin interferes with neurotransmission at spinal synapses in inhibitory neurons. As a result, minor stimuli result in uncontrolled spasms
and reflexes are exaggerated. The incubation period is 5 days to 15 weeks, with the average being 8-12 days.
Most cases occur in unvaccinated individuals. Persons at risk are the elderly, migrant workers, new borns and injection drug users. While puncture
wounds are particularly prone to causing tetanus, any wound, including bites or decubiti, may become colonized and infected by C tetani.
Another authority on the subject ''Davidson''s Principles & Practice of Medicine'' (20th Edition) (in page 1232) shows about tetanus thus:
TETANUS
This disease results from infection with Clostridium tetani, a commensal in the gut of humans and domestic animals which is found in soil. Infection
enters the body through wounds, often trivial.
Symptoms first appear from 2 days to several weeks after injury - the shorter the incubation period, the more severe the attack and the worse the
prognosis.
In ''Capital''s Legal & Medical Dictionary - 2006 Edition Page 1711 it is stated thus:
Tetanus
- An acute infectious disease caused by a bacillus that is Clostridium tetani.
-Disease tetanus is characterized by rigid spasmodic contraction of various muscles especially that affecting the muscles of jaw and rapid series of
shocks.
-Pain and stiffness in Para spinal and abdominal muscles follow. Para spinal muscle spasm may be very severe. There is no ventilation during
spasm and is the cause of death.
-This disease results from effects of neurotoxin produced by infection of Clostridium tetani. Incubation period includes 5 days to 2 to 3 months.
Toxin tetanospasm is bound to neuronal membranes. First clinical feature is trismus, lockjaw and retraction of mouth.
The above said authorities on the subject would amply amplify that Clostridium tetani would take not less than 4 days to develop slowly with
obvious signs (incubation) and thereafter dreadful of symptoms will occur and then only the death may take place, if it was allowed unvaccinated.
As per an authority the symptoms first appear from 2 days to several weeks after injury. In the present case on hand, the death occurred within 24
hours. At 11.45 a.m. on 17.07.1999 the accident took place and around 11.30 a.m. on 18.07.1999 she was declared dead in the C.M.C.
Hospital, Vellore. No autopsy was held. It is the evidence of P.W.1 that on the way to C.M.C. Hospital, Vellore, Vatsalakumari died. Hence,
within 24 hours from the time of accident, facility took place and it must be shown that it was outcome of the accident injury suffered by the
deceased during the course of and out of her employment. It is no doubt true that an accident injury was sustained by the deceased during the
course and out of the employment. But, it is to be seen whether the death was an end-product of such injury. When an analytical study of
authorities afore-mentioned is undertaken, the answer would be emphatic, ""No"" since as per the discussions the death could never occur within 24
hours.
Learned counsel for the appellant would draw attention of this Court to a decision of the Supreme Court reported in 2007 ILR 185 = 2007-2-
L.W.858 [Shakuntala Chandrakant Shreshti v. prabhakar Maruti Garvali & Anr.], wherein, Their Lordships have observed as under:
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.
As per the dictum laid down by the Apex Court, if the Commissioner was unable to find any jurisdictional facts, he will lose jurisdiction to
decide the matter. In the present case on hand, it appears that the Commissioner has mechanically decided, without duly assessing doctor''s
evidence, that the death occurred due to the injury. The medical expert P. W.2 has deposed in a vague and evasive manner that the death may
occur due to the injury sustained by the deceased. It is not his definite evidence that the tetanus, if left uncared, would cause death within 24 hours.
Another telling circumstance in this juncture is his testimony that he gave first aid. If so, definitely he should have administered tetanus taxoid. Had
he done so, the death might not have occurred immediately on the next day. The advocate notice dated 20.12.1999 emanated on behalf of the
claimants as well as the claim petition have not disclosed the name of the doctor P.W.2, who treated the deceased. In the lawyer''s notice it is not
even been mentioned that she was given first aid by a doctor in Gudiyatham. The cumulative effect of the above said factors would go a long way
to show that the death was not upshot of tetanus or any other physiological complication followed by the penetrated injury.
Learned counsel for the appellants would also garner support from a Division Bench decision of this Court in 1999 (III) LLJ 357 [Special
Officer, Periyakulam, Anna Polythene Workers'' Industrial Co-op. Society Ltd. v. Ayyammal & Another] in which the learned Judges have held
that the case of the claimant shall satisfy the test laid down by the Supreme Court, for which they have relied upon a decision of the Supreme Court
reported in Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, in which it is held thus:
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''...
It is the bounden duty of the claimants to show that the employment injury resulted from risk, incidental to the services. Of course, in this case the
injury was caused as such. But the consequences of injury are unknown and not as pleaded by the claimants.
It is well settled that the Workmen''s Compensation Act is a welfare legislation, earmarked to offer benefits to the workmen and hence the
Court is not to insist strict proof of facts from the employees. But, it does not mean that the claimants can remain without showing any material to
substantiate their contention. Some convincing materials should be made available on their behalf.
It is the contention of the respondents that no contra evidence has been adduced by the appellant before the Commissioner to the medical
evidence of P.W.2. In order to controvert the said evidence, if the evidence adduced by a party is a feeble one, not establishing his contention
itself, there is no need to expect an evidence to resist it.
In the light of the above said observations, the inescapable conclusion would be that Vatsalakumari did not die due to the bore through injury
by a double needle and the genesis for her death is not known. The oral evidence of P.W.2 does not fulfill the requirements expected to be
satisfied in law in the back ground of the special features available in the authorities of medical field. Hence, this Court reaches a conclusion that the
decision of the Commissioner is perverse which needs interference from this Court and it is accordingly set aside. The appeal deserves to be
allowed.
In fine, the appeal is allowed. No costs. If the claimants have withdrawn any amount from the deposit, it shall not be recovered.