(Prayer: Civil Miscellaneous Appeal against the award passed in W.C.No.17 of 2010 dated 22.9.2011 on the file of the Commissioner for Workmen's Compensation/Deputy Commissioner of Labour, Coimbatore.)
1. This civil miscellaneous appeal is filed against the order passed in W.C.No.17 of 2010 by the Deputy Commissioner of Labour- (Commissioner for Workmen’s Compensation, Coimbatore).
2. The claim was filed by the respondents before the Deputy Commissioner of Labour for Rs.2,75,868/- under the Workmen Compensation Act. The First respondent is the wife, the 2nd and 3rd respondents are the minor children and the fourth respondent is the father of the deceased T.M.Kumaresan who was employed with the appellant hospital as a Radiographer. The claim petition was filed by the respondents claiming that the deceased Kumaresan passed away in the course and at the time of and out of his employment on 19.08.2008. The respondents further claimed that the massive heart attack was caused only because of the stress. The appellant-hospital opposed the claim contesting that the deceased died because of coronary Heart Disease, Dilated Cardio Myopathy and congested cardiac Failure which had no nexus with his employment and also sought the dismissal of the claim that the claim was filed suppressing the material particulars regarding the past medical history of the deceased. The appellant also claimed that the deceased was having problems in the heart from 1990 onwards and also suffered a heart attack on 19.08.1998 and was treated in the appellant hospital without any costs. The appellant also claimed that the deceased was a chain smoker and failed to properly follow the medications prescribed to him and suffered many heart ailments periodically and continuously until his death. The appellants also contended that the deceased was not in employment in their hospital from 2000 to 2006 and was reinstated based on the orders of the Labour Court. The appellant also contested pitying his situation, a non-stress work was given to him. The appellant also resisted the claim contending that the Commissioner has no jurisdiction to try the case as there was no connection much less even casual between the employment and the death of Kumaresan. Six Exhibits were marked on the side of the respondents and Eight Exhibits were marked on the side of the appellant. After considering the facts, the documentary and oral evidence and various judgments relied upon by either side, Deputy Labour Commissioner allowed the claim holding that the death was caused arising out of the employment after reasoning that the employment and occupational stress and strain contributed to the aggravation of the heart ailments. Aggrieved by the same, the appellant has preferred this appeal.
3. Considering the facts of the case and the various questions involved, this court frames the following questions of law:
1. Whether the accident caused to the employee was due to or out of his employment with the appellant attracting liability to pay compensation under section 3 of the Workmen Compensation Act?
2. Was there casual connection between the employment of the employee and his death on 19.08.2008?
3. Did the job of the employee result in stress and strain aggravating the heart ailment resulting in fatal heart attack on 19.08.2008?
4. Was the authority right in granting interest at 12% per anum from the date of accident ?
4. The counsel for the appellant has, vehemently assailing the orders of the Deputy Commissioner of Labour-I, contended that the Tribunal had no jurisdiction to entertain the application as the accident had not occurred during the course of or arising out of employment as the cardiac arrest was due to the continuing heart ailment of the deceased, that there was no connection whatsoever between the employment and stress, the nature of employment of the deceased was stress free, that the deceased despite advice did not quit smoking and failed to take medications properly contributing to the death and therefore, the tribunal committed a jurisdictional error in entertaining the appeal. The counsel also contended that the interest can be awarded only from the date of order and not from the date of accident. The counsel also placed reliance upon the Judgment reported in SHAKUNTALA CHANDRAKANT SHRESHTI v. PRABHAKAR MARUTI GARVALI ((2007) 11 SCC 668 to contend that the claimants have failed to satisfy the tests laid down by the Apex Court.
5. Per contra, the counsel appearing for the respondents contended that there is no illegality in the order passed by the Commissioner. The counsel further contended that in view of the fact that the Tribunal has specifically found that the cardiac arrest suffered by the deceased on 19.08.2008 was due to employment and occupational stress. The counsel further contended that denial of employment, indifferent treatment at the place of employment and payment of lesser salary in comparison with other employees has contributed towards stress leading to the cardiac arrest. The counsel further contended that questions of law raised are in the nature of seeking re-consideration of evidence and hence no interference is called for.
6. Considering the facts and the various grounds raised by the appellant, this court is of the view that the appellant has raised substantial questions of law based on legal evidence and holding the appeal as maintainable, this court proceeds to decide the substantial questions involved in this case.
7. Section 3(1) of the Workmen’s Compensation Act deals with employer’s liability to pay compensation which reads as under:
"Employer’s liability for compensation.
3. (1) If personal injury is caused to an employee 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 employee for a period exceeding three days;
(b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to-
(i) the employee having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or
(iii) the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employees."
8. The Counsel for the appellant has relied upon few portions of the judgment in ESI Corporation case (1996 (1) SCC 1 ) and AIR 2007 SC 248.
9. The Apex Court in ESI Corporation’s case, after considering many English and American Judgments, went on to hold that the employee has to establish that the injury had occurred during the course and out of employment and laid down the principles to be considered while deciding whether the provisions of section 3 of the Act are attracted. Such Principles are:
(1) There must be a causal 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.
10. The Hon’ble Apex Court, in the Judgment reported in AIR 1970 1906 (Mackinnon Mckenzie & Co Pvt Ltd Vs Ibrahim Mohammed Issak) 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 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(1) Lord Sumner 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.'
11. In the Judgment relied upon by the Appellant in 2007 (11) SCC 668, the Apex Court has held As follows:
"16. Before we analyze the provisions of the Act, we may notice that in the Complaint Petition, there was no allegation that (i) the deceased met with his death by reason of any strain of work; and (ii) Appellant had no personal knowledge as regards quantum of or nature of work required to be performed by the deceased; and (iii) as to how service strain during his services was caused.
17. The deceased had admittedly suffered a massive heart attack. Nothing has been brought on record to show that the heart attack was caused while doing any job. Even according to employer, he at the relevant time was merely getting down from the vehicle.
18. The driver of the vehicle who was brother of the deceased was the best witness to state as to under what circumstances the deceased met with his death or whether the death was occurred due to some strain. He did not examine himself. The doctor who performed post mortem examination was also not examined.
19. Sufferance of heart disease amongst young persons is not unknown . A disease of heart may remain undetected. A person may suffer mild heart attack but he may not feel any pain. There must, thus, be some evidence that the employment contributed to the death of the deceased. It is required to be established that the death occurred during the course of employment. ...
26. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are :
1. stress and strain arising during the course of employment,
2. nature of employment,
3. injury aggravated due to stress and strain.
41. This vital aspect of the matter was required to be considered by the High Court so as to arrive at a finding as to how the said accident has arisen or not."
12. The Apex Court has also in the above judgment laid down that each case must be considered on its own facts. In this case, the Commissioner has, after elaborate discussion, found that the accident arose out of employment. Admittedly, the deceased suffered an attack while on duty. From the evidence it is clear that the deceased was meted out with indifferent treatment causing stress and strain. As rightly held by the Tribunal, the stress would not only mean physical but also mental stress. Since the Tribunal factually found and held that the accident occurred due to occupational stress, the Tribunal was very well competent to entertain the application. Upon perusal of the evidence, it is also clear that the appellant had not produced any material to prove that the deceased was a smoker. Further, the employer would be liable to pay compensation even if the stress during employment has contributed or aggravated the injury that was already suffered by the employee. It can be seen from the facts that the deceased was thrown out of employment and after he was reinstated, he was given less pay when compared to other radiographers. The evidence let in on behalf of the appellants also establish a casual connection. The commissioner had also found that in view of the fact that for all the 950 beds and 25 departments in the hospital, only few radiographers were available, the work of the deceased definitely was strenuous. Probably in the absence of above facts and conditions, if the deceased had suffered a cardiac arrest, it could be termed as only because of his previous ailments. But not in the present facts and c
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ircumstances of the case. Therefore, the findings of the Commissioner that the accident occurred during the course of employment is sound and does not call for any interference. 13. Even though at the time of admission, substantial question of law were framed, upon examination of the facts, the case of the appellant only requires factual appraisal which is not contemplated under section 30 of the Act. In view of the findings above, the first three substantial questions of law are decided in favour of the respondents. 14. With regard to payment of interest, factually the Commissioner has not awarded interest from the date of accident but only from the 31st day of accident as contemplated under section 4A (3). 15. A Division Bench of this Court in the Judgment reported in N.GANESAN AND OTHERS v. TMT.NALLAMMAL AND OTHERS (2010 (2) TNMAC 80) following the decision of the Apex Court reported in 1976 (1) SCC 289 and 2000 ACJ 5, held that the word 'falls due' occurring under section 4A of the Workmen’s Compensation Act means that interest for compensation amount would accrue after 30th day of accident and not from the date of quantification/orders passed by the commissioner for Workmen’s Compensation. Therefore, the direction of Deputy Commissioner of Labour-I to pay interest from the 31st day is well founded and the question of law raised is misconceived and hence is rejected. In the result the civil miscellaneous appeal is dismissed. No costs. M.P.No.1 of 2011 is also dismissed. M.P.No.1 of 2013 is closed.