Madras High Court
LPA/72/2002 of THIRU.T.SHANMUGA MUDALIAR Vs TMT.NOORJAHAN on 5 December 2002
COURT OF JUDICATURE AT MADRAS DATED: 05/12/2002 CORAM THE HON'BLE MR.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05/12/2002
CORAM
THE HON'BLE MR. JUSTICE R. JAYASIMHA BABUANDTHE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN
L.P.A.No.72 of 2002 and L.P.A.No. 141 of 2002and
C.M.P.No.5516 of 2002in L.P.A.No.72 of 2002
In L.P.A.No.72 of 2002:
Thiru. T. Shanmuga Mudaliar ... Appellant -Vs-
1. Tmt. Noorjahan
2. Minor Mohd. Amsad
3. Minor Apsana Parveen
4. The Divisional ManagerUnited India Insurance Co. Ltd.,Vellore ... Respondents In L.P.A.No.141 of 2002:
The Divisional ManagerUnited India Insurance Co. Ltd.,Vellore ... AppellantVs.
1. T. Shanmuga Mudaliar
2. Noorjahan
3. Mohammed Amsad(Minor)
4. Apsana Parveen (Minor)Minor Respondents 3 and 4 rep bytheir mother and guardian Noorjahan, the 2nd Respondentherein 2 to 4 residing at 6C,Gandhi Street, ChenkuttaiKatpadi ... Respondent Prayer in L.P.A.No.72 of 2002: Letters Patent Appeal under Clause 15 of theLetters Patent against the order passed by His Lordship Mr. Justice V.Kanagaraj in C.M.A.No.634 of 2001 dated 10-12-2001.
Prayer in L.P.A.No.141 of 2002 : Letters Patent Appeal against the judgmentand decree dated 10-12-2001 made in C.M.A.No.634 of 2001 passed by the Hon'bleMr. Justice V. Kanagaraj modifying the judgment of the Commissioner forWorkmen Compensation-I, Chennai dated 04-12-2000 and made in W.C.No.2 of 1998.
!For appellants :: Mr. Karthik forMr. T.S. Gopalanfor appellant in LPA 72/02 &for respondent No.1 in LPA 141/02
^For respondent :: Mr. Vasudevan for RR1 to 3in LPA 72/02& for RR2 to 4 in LPA 141/02Mr. T.D. Vasu for R4 in LPA 72/02 &for appellant in LPA 141/02
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:JUDGMENT
PRABHA SRIDEVAN, J.
The driver of the bus belonging to the appellant inL.P.A.No.72 of 2002 and insured by the appellant in L.P.A.No.141 of 2002 diedon 23-09-1995. A claim was made by his legal representatives (the respondentsherein) under Section 10(1) of the Workmen's Compensation Act on the groundthat the death was caused because of the heavy strain due to the employment.The Workmen's Compensation claim Commissioner awarded compensation but onlyagainst the insured/ employer. The learned Single Judge, allowed the civilmiscellaneous appeal filed by the employer holding that the Insurance Companyis jointly and severally liable to pay the compensation. Against that theseappeals have been filed.2. The liability to pay compensation has been resisted on theground that no materials have been placed for consideration such as the FIR,the post mortem certificate for ascertaining the cause of death, nor any proofof the salary particulars. There cannot be any dispute that if theliability to pay compensation is upheld then the liability of the insurer alsomust follow necessarily.
3. On the fateful day, the driver had halted the bus at the stop, stepped out to have refreshments and succumbed to heart failure. In theapplication filed by the claimants it is stated that the death occurred "whileon duty due to overstrain arising out of and in the course of the employment".In the counter filed by the employer it is admitted "that the deceased workmenAbdul Sattar, driver of the vehicle died due to heart attack while on duty."It is the Insurance Company, which in its counter had denied that the deatharose out of and in the course of the employment. The conductor has beenexamined as a witness on behalf of the claimants and it is his case that on23-09-1 995 the deceased driving the bus and he was the conductor, and thatwhen the bus reached Tiruvannamalai the driver stopped the bus to take somerefreshments and the driver fell ill at the very stop, where the bus hadstopped and that he threw up, his body turned cold and that he was taken tothe Tiruvannamalai Government Hospital and he died. He has stated that thedeath occurred on account of the strain of duty. The cross-examination inthis regard is more on the question of whether the trip sheet has been filedto show whether actually the deceased was driving the bus at the time of thedeath.
4. The word "accident" has not been defined under the Act.
4. The word "accident" has not been defined under the Act.
But the definition given to this word by Lord Macnaghten in the case of FentonVs. Thorley and Co. Ltd., (1903 AC 443) has been accepted as a mostappropriate meaning of the word. He has defined accident "as denoting anunlooked for mishap or an untoward event which is not expected or designed."The connection between the accident and the employment may be established ifthe strain had contributed to or accelerated or hastened the accident. It maynot be possible at all times to produce direct evidence of the connectionbetween the employment and the injury, but if the probabilities are more infavour of the applicant then the Commissioner is justified in inferring thatthe accident did in fact arise out of and in the course of the employment.
5. In the Mackinnon Mackenzie and Co. Private Ltd., Vs.
Ibrahim Mahmmod Issak (1970 I LLJ 16 = 1970 Lab I.C. 1413 (Vol.3, C.N.313))the Supreme Court held that,"To come within the Act, there must be a causal relationshipbetween the accident and the employment. The expression 'arising out ofemployment' is again not confined to the mere nature of the employment. Theexpression applies to employment as such to its nature, to its conditions, itsobligation and its incidents. If by reason of any of those factors theworkman is brought within t he zone of special danger, the injury would be onewhich arises 'out of employment'. To put it differently, if the accident hadoccurred on account of a risk which is an incident of the employment, theclaim for compensation must succeed, unless, of course, the workman hasexposed himself to an added peril by his own imprudent act. "
6. And again in the same judgment, the Supreme Court said, "in the case of death caused by accident the burden of proof rests upon the workman to prove that the accidentarose out of employment as well as in the course of employment. But this doesnot mean that a workman who comes to Court for relief must necessarily prove it by direct evidence. It may be inferred when the facts proved justify theinference. ... ... It is of course impossible to lay down any rule as tothe 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."
7. Yet in another case involving the same Company viz., Mackinnon Mackenzie & Co., (Private), Ltd., Vs. Rita Fernandez (Smt.)reported in 1969 II LLJ SC 812 the legal representatives of an employee onboard a ship who died of cardiac failure claimed compensation. The SupremeCourt dismissed the appeal by the employer because it had not let in evidenceto show whether the workman was asked to carry out his duties during therelevant period and adverse inference could be drawn against the appellant.The Supreme Court held that "even if a workman dies from a pre-existingdisease, if the disease is aggravated or accelerated under circumstances whichcan be said to be accidental, his death results from injury by accident". Forthis they relied on Clover Clayton & Co. Vs. Hughes (1910 A.C. 242) wherethe deceased, whilst tightening a nut with a spanner, fell back on his handand died. The House of Lords held thus:
"No doubt the ordinary accident," said Lord Loreburn, L.C."is associated with something external; the bursting of a boiler or anexplosion in a mine, for example. But it may be merely from the man's ownmiscalculation,such as tripping and falling. Or it may be due to bothinternal and external conditions, as if a seaman were to faint in the riggingand trumble into the sea. I think it may also be something going wrong withinthe human frame itself, such as the straining of muscle or the breaking of ablood vessel. If that occurred when he was lifting a weight, it wouldproperly be described as an accident. So, I think, rupturing an aneurysm whentightening a nut with a spanner may be regarded as an accident."
8. There can be no dispute that the deceased died in the
course of the employment since there was no occasion for him to be at theTiruvannamalai Bus stand unless he had been driving the bus. It is futile tocontend otherwise. The evidence of the conductor of the same bus, who hadseen the deceased fall and die at the very spot where the bus had stoppedcannot be ignored. The objections to the claim based on non-filing of the FIRor post-mortem report deserve no consideration. The claimants had pleadedoverstrain as having contributed to the death. The accident, the unlooked formishap, had happened at a spot, where the deceased would not have been but forthe fact he was discharging his duty as a driver. It is capable of beingattributed to the strain, ordinarily, inherent in the discharge of his duty.So the claim fall squarely within the Act.
9. In these circumstances, both the appeals are dismissed since the employer and the insured are liable to pay the compensation awardedby the Commissioner. No costs. The connected miscellaneous petition is alsodismissed.
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The Commissioner of Workmen Compensation-I,Chennai