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Judgment
R. Banumathi, J.—Being aggrieved by the award of compensation of Rs. 2,02,729/-, for the death of Ravi, State Transport Corporation
[STC, for short] has preferred this appeal.
Relevant facts which are necessary for disposal of these appeals are as follows:- The deceased Ravi worked in Maduranthagam Depot in Route
No. P-20, operated between Maduranthagam and Sunambedu. On 15.02.1998, at about 2.50 p.m., while the deceased was on duty along with
one Chinnayan, driver of the bus, they were both attacked by three persons in Maduranthagam. A criminal case with regard to attack was
registered in Cr. No. 178/1999 under Sections 341, 332 and 506(I) IPC. Even after the attack, the deceased continued his duty in the same bus.
The deceased along with the driver of the bus halted at Sunambedu, during night duty so that the first trip of the bus could be operated between
Sunambedu and Maduranthagam. Around 3.10 a.m., on 16.02.1998, due to stress and strain and due to attack, the deceased Ravi suffered heart
attack and he was immediately taken to Maduranthagam Government Hospital and he died on his way to the hospital. In the hospital, he was
declared dead. A case was registered u/s 174 Crl.P.C. Alleging that death arose out of and in the course of his employment with STC, wife of
Ravi has filed claim petition u/s 10 of the Workmen''s Compensation Act, 1923, claiming compensation of Rs. 2,62,600/-.
Opposing the claim, STC has filed counter stating that the deceased Ravi was employed as casual labourer on daily wages of Rs. 114/- and he
was only an casual labourer. If any permanent conductor absents himself from duty, only then the deceased would be employed. According to the
STC, deceased Ravi could not have worked more than ten days a month. Denying that the deceased died in the course of employment as
conductor, STC denied its liability to pay compensation.
Before the Deputy Commissioner of Labour, claimant examined herself as AW-1 and Branch Manager was examined as MW-1. Exs.A-1 to
A-9 were marked. On the evidence of AW-1 and referring to the attack on the driver and conductor on the afternoon of 15.02.1998, the Deputy
Commissioner has held that the death arose out of and in the course of employment and the heart attack has nexus with employment and held that
STC is liable to pay compensation to the claimant. Age of deceased employer was taken as 32 years and his monthly income was taken as Rs.
2,600/- and the Deputy Commissioner has awarded compensation of Rs. 2,02,729/-.
Challenging the order of Deputy Commissioner, the learned Counsel for the Appellant has submitted that absolutely there was no evidence to
show that death was in the course of employment. It was further argued that death on the early hours of 16.02.1998 cannot be linked to the
alleged occurrence on the afternoon of 15.02.1998. The main contention of the appellant STC is that the previous day occurrence cannot be
linked to the incident and the incident cannot be said to be arising in the course of employment. In support of his case, the learned Counsel placed
reliance upon P.K. Shukla Vs. Executive Engineer and Others, .
Drawing the attention of the Court to the evidence and the materials on record, the learned Counsel for the respondent/claimant has submitted
that the deceased Ravi was working for the whole day on 15.02.1998 and even after being attacked at Maduranthagam, the deceased continued
his duty. The learned Counsel has submitted that the bus halted at Sunambedu. Due to stress and strain, the deceased suffered heart attack and
from the circumstances, the Deputy Commissioner has rightly inferred that death was due to stress and strain and such factual finding cannot be
interfered with.
There is no denying that the deceased Ravi was on duty on 15.02.1998. It is also not in dispute that the deceased and driver of the bus were
both attacked by three persons in Maduranthagam and complaint was given, regarding which a criminal case was also registered. It is stated that
after the attack, the concerned driver had gone away and new driver was appointed to the bus and he continued its trip. But deceased Ravi who
was working as conductor was not relieved of duty even after the alleged attack in Maduranthagam. The bus halted at Sunambedu and around
3.10 a.m., on 16.02.1998, the deceased suffered heart attack and died on his way to the hospital. The fact that the deceased was on duty at the
time of incident is not disputed. Undisputedly the incident had occurred while performing his duty.
The main point for consideration is whether the finding of the Deputy Commissioner that the deceased died in the course of his employment is
sustainable. The further question falling for consideration is whether the evidence brought on record show that the death was by way of cardiac
arrest and because of stress and strain. The main contention of the appellant is that in the alleged occurrence on 15.02.1998, only the driver was
attacked and not the conductor. In her evidence, PW-1 has stated that she had learnt that on the afternoon of 15.02.1998, both the driver and
conductor were attacked. It is relevant to note that the driver who was on duty at the relevant time was not examined by the management to
substantiate its plea. Absolutely no explanation is forthcoming for non-examination of the driver on duty at that time. On the other hand, the
claimant had produced Ex.A-7 Newspaper clipping in support of her contention that her husband was also attacked on the afternoon of
15.02.1998 in Maduranthagam. In the newspaper, it was reported that in the bus P.20, both driver and conductor were attacked.
Prior to the filing of the claim petition, on behalf of the claimant, legal notice was issued. The management does not appear to have sent any
reply for the legal notice. The fact that STC has not replied to the legal notice would go a long way militating against the plea of management.
The learned Counsel for the appellant has contended that the incident that took place on the afternoon of 15.02.1998 cannot be linked to the
death on the early hours of 16.02.1998 and that the Tribunal has not discussed how there was stress and strain which caused heart attack to the
deceased.
Contending that circumstances must exist to establish that death was caused because of stress and strain of work, the learned Counsel for the
Appellant-Management has placed reliance upon the case reported in Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali and
Another, , wherein, the deceased workman/cleaner, while travelling in the vehicle suffered massive heart attack. Observing that the death by the
same itself cannot give raise to an inference that the job was strenuous, referring to various case laws the Supreme Court has enumerated the
principles as under:
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 casual 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.
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:
stress and strain arising during the course of employment;
nature of employment ;
injury aggravated due to stress and strain.
The deceased was travelling in a vehicle. The same by itself cannot 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 his 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 therefore 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.
For making out a Claim under the Act, it is necessary to establish definite casual connection between his work and the accident leading to the
death. Observing that the mere fact that death had taken place while the deceased was on job is not enough and that onus of proof lies upon the
Claimant in the decision reported in Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, , the Supreme Court has held as
follows:
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 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 ""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 casual 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 consideration must succeed,
unless of course the workman has exposed himself to an added peril by his own imprudent act.
In the Sakuntala Chandrakanth case, the cleaner of the vehicle died due to massive heart attack. In the said case before the Supreme Court,
nothing has been brought on record to show that heart attack was caused while doing any job. Even according to the employer, the deceased at
the relevant point of time was merely getting down from the vehicle. The driver of the vehicle, who was brother of the deceased was the best
evidence to speak as to under what circumstances death was caused or death occurred. Driver of the vehicle did not examine himself. Doctor who
performed the postmortem was also not examined. Under such circumstances, the Supreme Court has observed that there must be some evidence
that the employment contributed to the death of the deceased and it is required to be establish that the death occurred during the course of
employment. In the said case, since evidence was found to be lacking and best witness was not examined, Supreme Court has held as follows:
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.
As observed by the Supreme Court, circumstances must exist to establish that the death was caused by reason of failure of heart and it was
because of strain of work. Stress and strain resulting in sudden heart failure is not a matter of presumption. Each case is therefore to be considered
on its own facts and no hard and fast rule could be laid down therefor.
As held by the Supreme Court in the said case, each case is to be considered on the basis of its own facts and circumstances. Onus of proof
that the death arose out of and in the course of employment is upon the claimant. The claimant who examined herself has stated that she learnt that
her husband was also attacked in Maduranthagam on 15.02.1998 and that her husband continued his duty. AW-1 clearly stated that her husband
had no prior complaints of heart attack. Evidence of AW-1 and the paper clipping would show that the deceased was also subjected to attack by
group of persons in Maduranthagam. Any such attack while on duty would have definitely caused stress and strain to the deceased who continued
his duty as conductor. Assuming for the sake of arguments that he was not attacked, the fact remains that the deceased was on duty while the
driver was attacked. Such incident during plying of bus would have definitely caused mental stress and strain. Having regard to the facts and
circumstances of the case, the Deputy Commissioner has held that the death was due to stress and strain and death arouse out of and in the course
of employment.
The finding of fact recorded by Deputy Commissioner cannot be said to be based on surmises or conjectures or guess work. Admittedly, bus
crew were attacked on the afternoon of 15.02.1998. Equally, it is not in dispute that the driver alone left the duty and the deceased conductor
continued his duty and suffered heart attack while the bus halted at Sunambedu. The incident on the afternoon of 15.02.1998 and the continued
duty must have naturally caused stress and strain. The inference of the Deputy Commissioner of Labour that the deceased workman had stress and
strain appears to be a legitimate inference. In my considered view, the evidence of PW-1 and the nature of work would induce any reasonable
mind to draw such an inference of stress and strain involved in the work.
As held by the Supreme Court in Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, , ""Although the onus of proving that
the injury by accident arose out of and in the course of employment rests upon the applicant, these essentials may be inferred when the facts
proved justify the inference. On the one hand, the Commissioner may not surmise, conjecture or guess; on the other hand, he may draw an
inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which
is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it"".
It is also relevant to refer to Division Bench of this Court in Thiru. T. Shanmuga Mudaliar Vs. Smt. Noorjahan, Mohd. Amsad, Apsana
Parveen and The Divisional Manager, United India Insurance Co. Ltd., . The question in the appeal decided by the Division Bench was, whether
the death of the workman, driver of a bus, due to heart failure was caused because of the heavy strain of employment. The following observation
of the Division Bench at page 777 is relevant:
...The connection between the accident and the employment may be established if the strain had contributed to or accelerated or hastened the
accident. It may not be possible at all times to produce direct evidence of the connection between the employment and the injury, but if the
probabilities are more in favour of the applicant then the Commissioner is justified in inferring that the accident did in fact arose out of and in the
course of the employment.
In Thengackal Estate Vs. Reethammal, Kerala, after analyzing the facts, Division Bench of Kerala High Court has held that it would be
reasonable to conclude that the strain, even if it was a normal strain, connected with the employment was the reason for the death of the worker. It
is further said that even proceeding on the basis that the worker was suffering from chest ailment and was prone to heart attack, the circumstances
in the case would clearly indicate that the strain due to the work he was doing was the cause which accelerated his death due to heart attack.
The finding of the Deputy Commissioner that the deceased died of heart attack and death arose out of and in the course of employment is
based on appreciation of evidence and finding of fact. In an Appeal filed u/s 30 of the Act, normally the High Court would not interfere with the
finding of fact recorded by the Deputy Commissioner. The proviso to the said Section 30 mandates that no appeal shall lie against any order unless
a substantial question of law is involved in the appeal.
In Raveendran Vs. Somavally, , it was laid down that the finding recorded by the Commissioner on taking a particular view of the evidence,
cannot be questioned however erroneous, as no question of law can be said to have arisen in such cases. The Commissioner while handling cases
under the Act has to deal with the evidence tendered by the claimants and on evaluation of entire evidence, findings have to be entered and such
findings cannot be called in question invoking the power u/s 30 of the Act unless a substantial question of law is arising from such findings. It is
axiomatic that when there is no question of law, there cannot be any question of general public importance or any question directly and substantially
affecting the rights of parties.
No specific ground is made out for interfering with the factual finding of the Deputy Commissioner of Labour that the death arose out of and in
the course of employment. No substantial question of law is shown to be involved in this appeal. The appeal is devoid of merits and is bound to
fail.
In the result, the award dated 03.01.2002 passed in WC No. 45/1999 on the file of the Commissioner for Workmen Compensation II
(Deputy Commissioner of Labour II), Chennai, is confirmed and this C.M.A. is dismissed. No costs. Claimant is entitled to withdraw the amount
along with the accrued interest.