Hindustan Steel Construction Ltd., v. Nuralsha Khatoon

1. The appellant, a Government of India Undertaking, has filed the present appeal against the order, dated 18 March, 1983, passed by the Presiding Officer, Labour Court, Bakaro Steel City (Commissioner under the Workmen's Compensation Act) by which he allowed the claim of Rs. 21,000 (Twenty-one thousand) with penalty of 50 per cent, i.e, Rs. 10,500 (Ten thousand five hundred only) and interest on the compensation amount at the rate of 6 per cent per annum from the date of accident till the date of realisation.

2. The applicant-respondent is the widow of the deceased Ali Ahmad who was employed as driver under Bokaro Steel City, Ltd., in slag granualation plant. While he was on duty he died on 30 June, 1979. The respondent filed an application under S. 3 of the Workmen's Compensation Act (hereinafter to be referred to as the Act) stating, inter alia, that her husband died on 30 June, 1979 in a fatal accident while he was employed as driver in the slag granualation plant, Bokaro Steel City, Daanbad. At the relevant time he was getting basic salary of Rs. 330 and she is a legal heir of the deceased and entitled to get compensation amount of Rs. 21,000 according to his basic salary. She gave several letters to the management for the payment of compensation amount bat the management did not pay any need to her request. She had to maintain her two children and

3. The claim of respondent was resisted by the appellant management mainly on the ground that the deceased died natural death and as such she is not entitled to get compensation in accordance with the terms of S. 3 of the Act. While he was attached to an ambulance bearing BRX 5386 suddenly developed severe pain in his chest. In the evening at about 6.15 p.m he was seen fixing the tyre of the ambulance which was standing in front of the site office. All on a sudden he cried in pain and wanted help. A number of workers arrived and took him in a vehicle to the Bokaro General Hospital but in the hospital the doctor declared him dead. The post-mortem was carried out at the Sadar Hospital at Dhanbad and according to the opinion of the doctor it was case of sudden celeberal haemorrage. The deceased did not die as a result of any accident arising out of and in course of his employment. The matter was examined by the management and it was found that he was not entitled to compensation and as such the amount of compensation was not deposited with the Workmen's Compensation Commissioner.

4. The applicant-respondent examined three witnesses namely AW-1 Usman Ali, MW-2 Nuresha Khatoon herself and AW-3 Parmanand Shukla. Opposite party-appellant also examined one formal witness Sri K.C Shrivastava, who proved the accident report (exhibit M 1) and the covering letter marked exhibit M-2. The applicant-respondent also brought on the record four documents (exhibits A/1 to A/4). The relevant document for the purpose of this appeal is A/2, the post-mortem report.

5. The Presiding Officer, Labour Court after considering the relevant materials on the record came to the conclusion that the accident causing injury to the workman resulting in his death occurred during his employment and awarded the aforesaid amount of compensation.

6. Learned counsel appearing on behalf of the appellant contended that the deceased died of a natural death and he did not die because of injury by an accident arising out of and in course of employment and as such the employer has no liability for giving compensation under the provision of the Act.

7. Learned counsel appearing on behalf of the respondent, on the other hand, contended that the respondent while working in course of employment had a severe heart-attack and as a result of which he died and as such his death was caused due to injury by an accident arising out of and in course of employment and the Presiding Officer, Labour Court rightly granted the amount of compensation.

8. The controversy centres round the meaning and scope of the provision of S. 3 of the Act and it is apt to read the relevant parts of S. 3(1) of the Act as the very outset:

Employer's liability for compensation— (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

Provided that the employer shall not be so liable—

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days:

(b) in respect of any injury, not, resulting in death, caused by an accident which is directly attributable to—

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given or to a rule expressly framed for the purpose of securing the safety of workmen, or

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety or workmen.

9. From the perusal of the aforesaid provisions it is clear that the liability of the employer arises for payment of compensation under S. 3 of the Act on the fulfilment of three conditions, firstly, there must be an accident, secondly, the accident must result in a personal injury to workman and thirdly, the accident must arise out of and in course of employment of workman. Sub-section (2) of S. 3 of the Act speaks of occupational diseases and the present case is not covered by Sub-sec. (2) of S. 3 of the Act. The word accident has not been defined under the Act but it is construed in its popular sense and the definition given to this word by Lord Macnaughten in the case of Fenton v. Thorley and Co., Ltd., [1903 A.C 443] has been accepted as a most appropriate meaning of the word. He has defined accident “as denoting and unlooked for mishap or an untoward event which is not expected or designed.”

10. No difficulty arises as to the meaning of the word “in course of employment” and the difficulty arises as to the meaning of the word “arising out of employment.” This question came for consideration before the Supreme Court in the case of Mackinnon Mackenzie and Company (Private), Ltd. v. Ibrahim Mahoomad Issak, [(1969) 2 SCC 607 : A.I.R 1970 S.C 1906]. According to the aforesaid judgment there must be causal relation between accident and the employment. It was held therein 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 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 obligation and its incidents. If by reason of any 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.”

11. If a person dies or receives injury due to physical accident or from an event happening externally to a man like a collision, or explosion in mine then there is no difficulty in holding that the person received injuries by the accident arising out of and in course of the employment. The difficulty arises only in cases of an accident where person suffering from disease dies in course of employment. On this point Hon'ble Judges in the different High Courts have different in their views. Some cases support the view of the appellant that an accident within the meaning of S. 3 means a physical accident; in other words event happening externally to a man and consequential personal injury resulting therefrom whereas the other decisions support the stand of the respondent that if a person is suffering from disease and the employment is a contributory cause for the death or has accelerated the death then that will also amount to an accident arising out of employment and S. 3 of the Act will be attracted in such cases:

12. It is to be mentioned at the very outset that so far as this Court is concerned this question was considered by a Division Bench in the case of Superintendent of The Superintendent Of Mines… v. Smt. Lalo Devi…., [1985 P.L.J.R 1053], and this Court took the view that S. 3(1) of the Act envisages the payment of compensation to a workman only upon the occurrence of an actual physical accident and consequential personal injury resulting therefrom. It was held therein that unless there is some sort of accident causing a personal injury S. 3 of the Act will not be attracted. Being a Division Bench decision the same was binding on me but the law laid down by the said Division Bench is no longer a good law as the said judgment was set aside by the Supreme Court in the case of Smt Lalo Devi v. Superintendent of Mines, [1988 B.L.T 162], which runs as follows:

“After hearing the learned counsel for both the parties we are of the view that in this case the High Court should not have reversed the judgment of the Labour Court. The judgment of the High Court, is, therefore, set aside and the judgment of the Labour Court is restored. We are told that out of the compensation of Rs. 30,000 awarded by the Labour Court Rs. 15,000 has already been paid. The balance shall be paid within six weeks to the appellant. The appeal is accordingly allowed. The appellant is also entitled to costs which is quantified at Rs. 1000.”

13. Learned counsel appearing for the parties have cited numerous decisions in support of their contentions but I will mention only relevant decisions supporting the stand taken by the counsel for the parties. In the case of Municipal Corporation For Greater Bombay v. Smt. Sulochanabai Sadashiv Joil, [1978 — I L.L.N 652], a Bench of the Bombay High Court held that the words “injury” and “accident” in S. 3 imply the existence of some external factor to cause death apart from internal ailment of the body. Mere death in ordinary course by some bodily ailment or even in the course of employment cannot attract liability of the employer under the section.

14. It appears from the facts of that case that one Sadashiv Joil was employed in the B.E.S.T Undertaking as a bus starter at Bombay Central Relief Point and while on duty in his office he felt pain in his chest. Thereafter he was relieved of his work immediately and made to lie down on the bench. He was however restless and felt giddy. He was removed to the Nair Hospital, where he was declared dead. On those facts it was held that there was no causal connection between the employment and the death and the claim for compensation was rejected. The other decision relied upon by the counsel for the appellant is the case of Smt. Kamlabai Chitaman v. Divisional Superintendent, Central Railway, Nagpur, [A.I.R 1971 Bom. 200] wherein it was held that the death of a railway engine driver while on duty cannot be said to arise out of his employment when there is no causal connection between his death and the employment but on the other hand there is clear and cogent evidence that he died a natural death due to heart failure and not on account of any particular strain due to his employment. He also relied upon the case of Leela Devi v. Ram Lal Rahu, [1990 — I L.L.N 995], wherein learned Single Judge of Himachal Pradesh High Court held that the deceased died during the duty hours but his death cannot be considered owing to any physical injury or occupation injury under S. 3 of the Act read with Sch. III thereof and as such the claimants are not entitled to claim compensation.

15. Learned counsel appearing on behalf of the respondent relied upon the decision of Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust, [A.I.R 1954 Bom. 180], wherein the question as to the meaning of the words “accidentarising out of the employment” came for consideration before the Division Bench. From the facts of the said case it appears that a night watchman was employed by the Bombay Port Trust at its pumping station and one night when the watchman was on duty as usual he complained of pain in his chest and he was asked to lie down. His condition deteriorated and he died after few hours. The medical evidence showed that the deceased was suffering from heart disease and death was brought about by the strain caused upon his heart by the particular work that he was doing. Dealing with the said question the Division Bench held as follows:

“The authorities have clearly laid down that in order to come within S. 3 it is not necessary that it should be established that the workman died as a result of an exceptional strain or some exceptional work that he did on the day in question.

The authorities again are clear that if the workman died as a natural result of the disease from which he was suffering, then it could not be said that his death was caused out of his employment. The authorities also have gone to this length that if a workman is suffering from a particular disease and as a result of wear and tear of his employment he dies of that disease, no liability would be fixed upon the employer. But it is equally clearly established that if the employment is a contributory cause or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased.”

16. Similar question came for consideration before a Division Bench of Madhya Pradesh in the case of Smt. Sundarbai v. General Manager, Ordance Factory, Jabalpur, [1976 — II L.L.N 58]. It appears that in that case Mool-chand, husband of the claimant, was workman in the ordance factory and while he was working in the factory he died on 8 May, 1969. The post-mortem report showed that he was suffering from aneurism of aorta and cause of death was rupture of aneurism arid in that case it was held as follows in Para 10, at pages 64 and 65”:

On a review of the authorities, the principles in so far as relevant for our purposes may be stated as follows:

(a) ‘Accident’ means an untoward mishap which is not expected or designed by the workman. ‘Injury’ means physiological injury.

(b) ‘Accident’ and ‘injury’ are distinct in cases where accident is an event happening externally to a man, e.g, when a workman falls from a ladder and suffers injury. But accident may he an event happening internally to a man and in such cases ‘accident’ and ‘injury’ coincide. Such cases are illustrated by bursting of an aneurism, failure of heart and the like while the workman is doing his normal work.

(c) Physiological injury suffered by a workman due mainly to the progress of a disease unconnected with employment, may amount to an injury arising out of and in the course of employment if the work which the workman was doing at the time of the occurrence of the injury contributed to its occurrence.

(d) The connection between the injury and employment may be furnished by ordinary strain of ordinary work if the strain did in fact contribute to or accelerate or hasten the injury.

(e) The burden to prove the connection of employment with the injury is on the applicant, but he is entitled to succeed if on a balance of probabilities a reasonable man might hold that the more probable conclusion is that there was a connection.”

In the case of Smt Teiubai v. General Manager, Western Railway, Bombay, [1983 L. & I.C 119], it was held by a learned Single Judge of Gujarat High Court that accident is an event happening to a man not only externally but also internally and death caused due to heart failure while on duty will also be treated as an injury caused by accident arising out of and in course of employment.

17. With greatest deference I am unable to agree with the views and reasonings adopted in the cases of Municiapl Corporation of Greater Bombay, [1978 — I L.L.N 652] (vide supra), Smt. Kamlabai Chaitaman, [A.I.R 1971 Bom. 200] (vide supra) and Leela Devi, [1990 — I L.L.N 995] (vide supra), according to which the accident under S. 3(1) of the Act means only an actual physical accident or an event happening externally to a man. I am in respectful agreement with the views taken in the aforesaid cases of Laxmibai Atmaram, [A.I.R 1964 Bom. 180] (vide supra) and Smt. Sundarbai, [1976 — II L.L.N 58] (vide supra).

18. In my opinion, S. 3 of the Act is attracted not only in cases of physical accident or even happening externally to a workman but also in cases of event happening internally to a workman; such as failure of heart and the like. However, it is made clear that if a person dies a natural death then it could not be said that his death was caused out of his employment. But if a person is suffering from some disease or ailment dies or receives injury while discharging his normal duty and employment is a contributory cause or has accelerated the death of the workman then S. 3 of the Act is attracted as the death is caused by an accident arising out of and in course of employment. In other words, if it can be proved on behalf of the workman that the death caused not only by the ailment or disease but ailment coupled with employment has caused the death then the employer is liable for payment of compensation.

19. Now the facts of the present case has to be seen as to whether the claimant-respondent is entitled to compensation or not. In the case of death caused by accident, for claiming compensation the burden lies on the workman to prove that the accident arose out of and in course of employment. However, that does not mean that burden can be discharged only by direct evidence. The Tribunal may draw inference from the proved facts justifying the claim for compensation. This matter came for consideration before the Supreme Court in the case of M. Mackenzie v. I.M Issak (vide supra), and it was held as follows:

“In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not 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 the inference. On the one hand the Commissioner must 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 an would induce a reasonable man to draw it.”

20. The deceased died during the course of employment is not in dispute. The only dispute is as to whether he died by an accident arising out of employment. The evidence on the record shows that the deceased was employed as a driver in the slag granulation plant, Bokaro Steel City. On 30 June, 1979, at 6.15 p.m he suddenly developed severe pain in the chest while he was fixing/changing tyre of the ambulance. He was on duty on that day from 2 p.m to 10 p.m He was taken to hospital where he was declared dead. Exhibit A/2 is the postmortem report and according to the doctor cause of death is due to sudden cerebral haemorrhage and shock (natural sudden death). He found the following internal injury:

“On dissection found the size of the heart comparatively bigger than the normal size right chamber of the heart containing some blood clots, left chamber of the heart found empty. Lungs congested, lever pale and bulky; spleen and kidneys slightly congested. Spleen also congested. Stomach full of semi digested food particles (fasty). Urinary bladder partially full on opening the skull found the blood vessels on the brain surface congested and blood and blood clots in the brain surface, i.e, intra cubral (cerebral) haemorrhage.

Duration:— Time elapsed since death approximately within 24 hrs.”

No doubt the doctor has opined that the deceased died of natural death but it appears that this heart was enlarged and from which it can reasonably be inferred that he was suffering from some heart ailment from before and on the date of the happening while discharging his normal duties he developed a severe chest pain and because of that he died. In my opinion, the deceased did not die natural death. His death was not because of disease only but disease (heart ailment) coupled with employment caused his death.

21. The trial Court was right in holding that the death was caused by an accident arising out of and in course of the employment. So far as the amount of compensation is concerned, the Court below has considered that the deceased was getting Rs. 578 at the relevant time and taking into consideration of the aforesaid fact awarded compensation and I do not find any reason to interfere with the aforesaid finding of fact on the amount of compensation awarded to the claimant.

22. In the result, I do not find any merit in this appeal and the same is dismissed. There shall be no order as to costs.