1. This Civil Miscellaneous Appeal is directed against the order of the Commissioner under Workmen Compensation Act cum Assistant Commissioner of Labour, Circle - II, Visakhapatnam, in W.C. case No. 17 of 2003 dated 24.01.2004.
2. The appellants are the opposite parties and the respondents were the applicants in the enquiry before the Commissioner for Workmen Compensation (Commissioner for 'short').
3. The respondents laid a claim application to award a compensation of Rs. 4,36,940/- and for costs, on account of death of Sri M. T.S. Kumar. The respondents 1 and 2 are his parents and the third respondent is his younger brother. The first respondent as a contracting agency had undertaken certain works in the manufacturing unit of the second respondent, where usually they were producing sulphur phosphate and manufacturing fertilizers.
4. The deceased Sri M.T.S. Kumar, was an employee and a painter for the first appellant according to the respondents. They further claimed that on 03.05.2002 at about 8.50 a.m. when Sri M.T.S. Kumar, was attending to painting work at the factory premises of the second appellant at the top level, he fell down accidentally due to chemical reaction and received grievous injuries to his head, who died consequently there itself. When he was taken to Community Health Center, Aganampudi, by the staff of second appellant, he was declared brought dead by the medical officer of the health center.
5. The respondents also claimed in their application that the deceased was hale and healthy, who never suffered from any ailment earning Rs. 4,075/-, and was 24 years old by the time of the accident. Thus, they justified their claim for compensation and as his legal heirs to succeed to his estate.
6. Both the appellants opposed this claim specifically contending in their counter disputing the nature of this accident and as well as the cause of the death of Sri M.T.S. Kumar. They did not dispute that the deceased was working for the first appellant and that they stated that he joined the said company in April 2002, where he worked for a short duration of about 20 days or a month as a helper to the painter, who was being paid Rs. 75/- per day as a casual daily labour.
7. Their specific contention is that on the date of the accident, the deceased Sri M.T.S. Kumar, worked from 8.15 a.m. in a routine manner and at about 12.50 p.m. he complained severe chest pain, whereupon he was taken to the Health Center, at Aganampudi for treatment by the staff of the first respondent, where he was pronounced dead.
8. Thus, they denied that the deceased died on account of the injury suffered in the alleged accident as attributed by the respondents stating that he was suffering from heart ailment, who was not in good terms with his family members, viz., the respondents. They also contended that on the fateful day, he did not have food and was not taking any food for days together. Referring to the outcome of the investigation by the police, in Crime No. 34 of 2002 of Parwada Police Station registered under Section 174 Cr.P.C. on 03.05.2002, particularly the post-mortem examination and the inquest, these appellants also contended that the material revealed that the deceased died of heart failure and anemia. Thus, they claimed that the death was self-inflicted.
9. Before the Commissioner, the first respondent examined himself as A.W.1 while relying on Ex. A1 to Ex. A6. On behalf of the first respondent, R.W.1-a supervisor working in that company was examined through whom Ex. R1 to Ex. R5 were marked. R.W.2 is the painter working for the first appellant company and deposed about the incident properly. R.W.1 was then technical assistant in the second appellant company through whom, Ex. R6 was marked during enquiry.
10. Basing on the material, the Commissioner settled the following issues for enquiry.
1. Whether the deceased died due to the accident occurred during the course of employment or not.
2. If so, what is the wage and age of the worker and to what amount of compensation the applicants are entitled to.
11. The Commissioner held that the respondents failed to prove the reason and cause for the death of Sri M.T.S. Kumar, as alleged by them in their petition. While observing that there is material to hold that the deceased was attending to whitewashing, who died due to cardiac arrest due to anemia, basing on his age as well as the fact that the deceased was working as a casual and contract labour in a chemical factory, applying the minimum wages payable for unskilled workers at Rs. 2,250/- per month, arrived at compensation of Rs. 2,45,779/- directing both the appellants to pay the same in terms of Workmen Compensation Act. This order is questioned in this civil miscellaneous appeal by the appellants.
12. Sri Saloori Ramesh, learned counsel for the appellants and Sri Nilothpal, learned counsel for Sri Y.V. Ravi Prasad, learned counsel for the respondents addressed arguments.
13. Now, the following points arise for determination:
1. Whether the death of Sri M.T.S. Kumar was during and in the course of his employment for the first appellant, at the premises of the second appellant and if it had any nexus with his employment being Causa Causons?
2. Whether the Commissioner is right in awarding compensation in favour of the respondents and against the appellants?
3. To what relief?
14. POINT No. 1: The material and evidence on record adduced by both the parties clearly established that on 03.05.2002 the deceased Sri M.T.S. Kumar attended to the work in the premises of the second appellant, as a worker of the first appellant. The first respondent was the contractor pertaining to whitewashing of certain portions of the premises of the second respondent as per Ex. A6 work order on the date of the accident. The nature of work carried out by the deceased Sri M.T.S. Kumar on the date of the accident finds reference in the testimony of R.W.2 Sri Kandregula Reddy, who was a painter working for the first appellant. He deposed that at the premises of the second respondent on 03.05.2002, they attended the work in usual course and at about 12.50 p.m., when he along with other workers stopped the work to have lunch, the deceased Sri M.T.S. Kumar complained chest pain. Thus, according to R.W.2, they arranged a vehicle belonging to the second appellant, took him to Aganampudi Community Health Center, where he was declared brought dead.
15. The evidence of R.W.2 is also that the deceased used to attend the work irregularly due to sickness, who had certain differences in the family stated on account of a love affair. It is also in the evidence of R.W.2 that they were arranging lunch for him since he was not interested to bring food from his house. He asserted that the deceased died due to heart attack.
16. In cross-examination, R.W.2 stated that he did not have any relationship or a friend of the family of the deceased. He could not give the details of his alleged love affair when specifically questioned in cross-examination.
17. Other two witnesses, viz., R.W.1 and R.W.3 did not depose with reference to the alleged incident in proper. However, R.W.3 deposed that at about 1.30 p.m. on that day when he was in the office, all these workers gathered under a tree before going for lunch when the deceased complained pain in the chest. He too corroborated the version of R.W.2, the manner of attending to medical aid for the deceased.
18. This evidence apparently enabled the Commissioner to hold that the respondents failed to prove the manner of the accident and the reason for the death of the deceased as a fall, while attending to his work as a painter from a height of 20 feet at the premises of the second appellant. In that context, except the testimony of A.W.1, viz., the first respondent, there is no other material.
19. FIR was registered in respect of this incident as seen from Ex. A1 under Section 174 Cr.P.C. in Crime No. 34 of 2002 in Parwada police station on a complaint presented by Sri N. Ratna Rao, Senior Manager of maintenance of second appellant. Complaint of chest pain by the deceased in the afternoon on 03.05.2002 was referred to in this FIR. Post-mortem was carried out on the dead body of the deceased on 04.05.2002 in Area Hospital, Anakapalli. The final opinion basing on his post-mortem, as per Ex. A2 and Ex. R2 is that the deceased died of cardiac arrest due to anemia. Inquest report as seen from Ex. R3 reflected the same cause for the death of the deceased.
20. However, with reference to this medical opinion relied on by the appellants, the respondents relied on Ex. A4, a letter issued by Dr. K.V. Jyothi, Civil Assistant Surgeon, Community Health Center, Aganampudi, to the first respondent did not record the reason for the death of the deceased as 'cardiac arrest', due to anemia. She was the medical officer, who had seen the deceased when brought to her hospital. She recorded the cause for the death of the deceased as seen from Ex. A4. It is rather hard to expect the post-mortem report to carry such reason for the death of the deceased as cardiac arrest due to anemia and a ring of suspicion surrounds the reasons so assigned. The Commissioner took into consideration the status of the heart as per post-mortem report being pale. Possibility of heart becoming pale when post-mortem examination was carried out of nearly after 24 hours of the death is not ruled out. Nonetheless, these findings are not questioned by the respondents by filing cross-objections or raising a specific contention in this appeal.
21. One of the contentions of the respondents before the Commissioner was that the deceased suffered this accident unable to bear the chemical pollution in the premises of the second respondent, where admittedly the manufacturing activity was of chemical fertilizers. But this fact was not established during enquiry by producing appropriate evidence on behalf of the respondents. However, the appellants relied on the report of Forensic Science Laboratory in Ex. R5, which reflected that the material subjected to examination in that lab, which was collected during post-mortem examination of the dead body of the deceased, did not make out presence of any chemical substances.
22. In the circumstances of the present case, the findings to record as was done by the Commissioner are that the deceased died at the premises of the second appellant on 03.05.2002 when he was attending to the work of whitewashing or painting along with R.W.2 and that he died.
23. Sri Saloori Ramesh, learned counsel for the appellants strenuously contended that in the presence of such material when there is complete failure of the respondents to establish that the deceased died in such circumstances sought to be projected by them, his mere death cannot be an event for application of Section 3 of Workmen Compensation Act. Learned counsel for the appellants further contended that mere death is not sufficient and nexus between his employment and the death should be established as the real cause. Thus, the strain of learned counsel for the appellants is that the deceased did not suffer fatality on account of his employment on behalf of the first appellant at the premises of the second appellant.
24. Sri Nilothpal, learned counsel for the respondents with equal vehemence contended that in view of the admitted and established facts as the death itself is proved, possibility of associating with nature of employment at the premises of a chemical fertilizer factory, viz., the second appellant should bear the consequences and in the circumstances when the death was unnatural, it should necessarily be tagged on to his employment.
25. Sri Saloori Ramesh, learned counsel for the appellants relied on MACKINNON MACKENZIE AND CO. PRIVATE LIMITED v. IBRAHIM MAHOMMAD ISSAK AIR 1970 SC 1906 in an attempt to explain when application of Section 3 of Workmen Compensation Act arises. In paras - 5 and 6 of this ruling, the observations in this context are as under:
"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 these factors the workman is brought within the scene 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. In Lancashire and Yorkshire Railway Co. v. Highley 1917 AC 352 Lord Summer laid down the following test for determining whether an accident "arose out of the employment":
"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting or should have been in the position in which he was, whereby in the course of that employment he sustained injury."
6. 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. Although the onus of proving that the injury by accident arose both 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 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 as would induce a reasonable man to draw it. Lord Birkenhead L.C. in Lancaster v. Blackwell Colliery Co. Ltd., 1918 WC & IR 345 observed:
"If the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour."
26. Further reliance is placed in REGIONAL DIRECTOR, ESI CORPORATION v. FRANCIS DE COSTA AND ANOTHER (1996) 6 SCC 1. Basing on the fact situation in this ruling in para - 29, the observations recorded are as under:
In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a causa connection with the employment and (3) the accident must have been suffered in the course of employment.…………………"
27. Learned counsel for the appellants further relied on M. BHAVARAJU v. SMT. Y. SAVITRI 1976 (1) APLJ 23, DEPOT MANAGER, A.P.S.R.T.C., NIRMAL v. ABDUL SATTAR 1995-II LLJ 318, MANDERBHANI COLLIERY v. PHULWANTI DEVI 1999-I LLJ 937 (Calcutta High Court), SMT. ANANTHAMMA v. MANAGING DIRECTOR, CO. OP. SPINNING MILLS LTD. RAICHUR 1999-I LLJ 1053 (Karnataka High Court), SHAKUNTALA CHANDRAKANT SHRESHTI v. PRABHAKAR MARUTHI GARVALI & ANOTHER 2007 LLR 185 (SC), BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD., HUNSUR v. SRINIVASA AND OTHERS 2007 LLR 481 and JYOTHI ADEMMA v. PLANT ENGINEER, NELLORE 2006 (110) FLR 776. In essence, the contention of learned counsel for the appellants basing on these rulings is that the respondents did not establish necessary nexus and cause between the death of the deceased and the work, which he attended to bring the claim of the respondents within the fold of Section 3 of Workmen Compensation Act.
28. On behalf of the respondents, Sri Nilothpal, learned counsel while placing reliance upon JYOTHI ADEMMA v. PLANT ENGINEER, NELLORE, referred above, and further relied on UNION OF INDIA AND OTHERS v. S. MARIAMMA AND OTHERS 2004 (4) ALD 599, DEPOT MANAGER, APSRTC v. GURRAPU ANJAMMA (1999) 6 ALD 101, ORIENTAL INSURANCE COMPANY v. N. SAROJINI AND OTHERS (2009) 5 ALT 698 and DIVISIONAL CONTROLLER, NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION, GULBARGA v. SANGAMMA 2005 ACJ 445 (Karnataka High Court) to repel the contention of learned counsel for the appellants explaining what is an accident and in given facts and circumstances of the case, the manner by which the death of the deceased Sri M.T.S. Kumar, be tagged on to the duties he was discharging at the time of the incident.
29. The Workmen Compensation Act is undoubtedly for the benefit of the workmen while striking a balance in between the relationship of employers and the employees. Thus in effect the ultimate purpose of this legislation as a welfare measure for workmen should be borne in mind in construing fact situation in application of Section 3 of Workmen Compensation Act. It is well known that the workmen obviously placed in certain disadvantageous position than a mighty employee, who will have all sources at his command to meet a challenge of this nature. These factors should be borne in mind particularly in the facts and circumstances of this case.
30. The deceased was a casual worker working for the first appellant at the premises of the second appellant on the date of the incident. As already stated, the premises of the second appellant, is involved in the activity of production of chemical fertilizers. Going by the version of the appellants, the deceased as well as R.W.2 along with other workmen was attending to paining or whitewashing at such premises of the second appellant. There is no material on record produced by the appellants to establish that the entire premises of the second appellant was so clean and tidy without there being any effect of the process of production of chemical fertilizers. In the sense, the appellants did not adduce any evidence to prove that the premises of the second appellant was free from pollution and affect of the chemicals used in the manufacturing process.
31. In the absence of such material placed by the appellants, when the deceased and others were engaged in the process of painting or whitewashing right from 8.30 a.m. and upto 12.30 noon, it can well be perceived of the situation in that premises. Possibly, it would have affected the health of the deceased Sri M.T.S. Kumar. It was the risk he had to face. Though the case of the respondents stood on a different footing, before the Commissioner, there is no reason why in given and proved facts and circumstances, the Court should not consider the matter from the material placed by the appellants and taking judicial note of the ground situation at the premises of the second appellant at the time of the incident as is laid down in Mackinnon Mackenzie's case. In Shakuntala Chandrakant Shreshti, nature of incident and cause of death are held to be the questions touching upon the jurisdiction of the commissioner to enquire into a claim under Workmen Compensation Act, which is essentially based on facts in each case. It is also desirable to apply the well known principle of res ipsa loquitur in this context.
32. The burden in these circumstances cannot be asserted to be placed always on the respondents, viz., the applicants before the Commissioner and it is also for the appellants, who are the respondents before the Commissioner to explain away the situation. Placing reliance on the report of Forensic Science Laboratory (Ex. R5) or the outcome of the Post-mortem examination of the deceased vide Ex. A2 and Ex. R2 by the appellants would not permit to hold that they discharged their burden. In fact, the material so placed and relied on by the appellants is not in relation to establishing the ground situation at the premises of the second appellant and that it was an environment free from chemical pollution.
33. Added to it, in a matter of this nature, when it is also the duty of the Court to strike a balance in between competing interests, it has a positive role to play in assessing and evaluating the evidence on record to sub-serve the cause of justice. Viewed from such angle, the factors considered as stated above, can well be taken into consideration.
34. Among the rulings relied on for both the parties, it is desirable to consider the observations of Hon'ble Supreme Court in Jyothi Ademma. Relevant for the present are the observations in paras 5 to 7 of this ruling.
"5. Under Section 3(1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear, of the employment no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable.
6. The expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. In Fenton v. Thorley & Co. Ltd. (1903) AC 448, it was observed that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A.C. in Trim Joint District, School Board of Management v. Kelly (1914) A.C. 676 as follows:
"I think that the context shows that in using the word "designed" Lord Macnaghten was referring to designed by the sufferer".
7. In the present case it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded the High Court's judgment does not suffer from any infirmity."
35. The deceased Sri M.T.S. Kumar was not suffering on account of any heart ailment prior to the incident in question. There is no proof laid by the appellants in this context. The testimony of R.W.2 cannot be a substitute to prove this fact. His evidence at best may present a scenario that there were disputes in the family of the deceased and his food habits were irregular. Even otherwise, having regard to his statement in cross-examination that he did not have any a
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cquaintance with the family of the deceased, his version in examination-in-chief cannot as such be considered to project a true and correct situation. Added to it, in the course of enquiry a photograph (Ex. A6) of the deceased Sri M.T.S. Kumar was produced and R.W.2 admitted that it was the photograph of the deceased. In fact, it reflected that the deceased was a robust youngster and as rightly contended for the respondents, a body builder. It is reflective of the health condition of the deceased by the date of the incident. It excludes the possibility of the deceased suffering from any ailment including cardiac arrest. Nor anemic condition of the deceased could be inferred though the commissioner took into consideration this condition basing on postmortem report. 36. When all these circumstances are taken into consideration, the inference to draw is that Sri M.T.S. Kumar, died on account of working at the premises of the second appellant and the plausible and probable cause for his death is thus directly connected to his work at that time. Thus causa causans is established and nexus is built. In this background, as in Jyothi Ademma's case, Hon'ble Supreme Court, when a contributory cause had lead to the death of the deceased Sri M.T.S. Kumar, it has to be held that his death arose during and in the course of employment, making both the respondents liable. 37. Therefore, rejecting the contentions of the appellants and accepting the contentions of the respondents, this point is held to the effect that the deceased Sri M.T.S. Kumar died during and in the course of his employment and that the appellants are liable to satisfy the claim of the respondents. 38. POINT No. 2: In view of the findings on point No. 1, for different reasons, the order of the Commissioner has to be confirmed. While arriving at the compensation the commissioner took into consideration not only the age of the deceased but also minimum wages payable to him as a worker employed in chemical industry. There is no reason to differ with the finding so recorded by the Commissioner. Thus, this point is held. 39. POINT No. 3: In view of the findings on points 1 and 2, this appeal has to be dismissed confirming the order of the Commissioner and without costs. 40. In the result, this civil miscellaneous appeal is dismissed confirming the order of the Commissioner for Workmen Compensation cum Assistant Commissioner of Labour, Circle - II, Visakhapatnam in W.C. Case No. 17 of 2003 dated 24.01.2004. The Commissioner is directed to disburse the amount so deposited, if it is not done so, in terms of Workmen Compensation Act. No costs. All pending petitions, stand closed. Interim orders granted earlier stand vacated.