SUPREME COURT OF INDIA
Shakuntala Chandrakant Shreshti
Vs
Prabhakar Maruti Garvali and Another
Appeal (Civil) 4778 of 2006 (Arising Out of Slp(C) No. 19222 of 2005)
(S. B. Sinha and Markandeya Katju, JJ)
10.11.2006
S. B. SINHA, J.
Leave granted.
Prakash Chandrakant Shreshti (hereinafter called 'the deceased') was working as
a Cleaner in Vehicle No. MH 09A 9727. The said vehicle belonged to Respondent
No. 1. He was travelling in the said vehicle in the night of 27.9.2002. He
suddenly developed chest pain. He was admitted to Government hospital, Mangaon
where the doctor declared him dead. Indisputably, the incident had occurred
while deceased was performing his duties.
Appellant herein, the mother of deceased filed a Claim Petition under the Workmen's Compensation Act, 1923 (for short, 'the Act')
before the Commissioner for Workmen's Compensation which was registered as
WCA/SR/19/2003. The vehicle being insured with the United India Insurance
Company, it was also impleaded as a party.
The fact that at the time of his death, the deceased was discharging his duties
is not disputed. The autopsy was conducted wherein the cause of death was
opined as Cardiac arrest due to Rupture Aortic Aneurysm. No injury on his body
was found. The only evidence which was brought on record was by way of
deposition of Appellant. It was alleged :
"My son died while working in the vehicle of R-1 and due to the strain of
work"
A copy of the Claim Petition has not been placed before us. We, therefore, are
not sure as to whether there was any requisite pleading. The first Respondent,
however, in his objection stated :
"...It is further true that the said vehicle is used for carrying the
milk and on 27.9.2002 at about 9.15 hours, the driver of the said vehicle Parasharam
Chandrakant and the deceased cleaner Prakash Chandrakant came to the Tavarewadi
Chilling Centre for bringing the milk from Kolhapur, at that time, the
deceased-Cleaner while getting down from the said vehicle got pain in the chest
and sat on the ground and immediately the driver of the said vehicle taken him
to dispensary to Government Hospital, Mangaon. The Doctor of the said Hospital
stated that deceased-Cleaner died due to Cardiac arrest. It is true that the
said deceased died in the course of his employment under this Respondent No.
1."
The Insurer raised a plea of collusion between the employer and Appellant in
its written statement. It, however, need not be adverted to.
The Commissioner for Workmen's Compensation raised several issues. The issue
with which we are concerned is Issue No. 2, which is as under :
"2. Whether the accident occurred during the course of employment and out
of Employment?"
The Workmen's Compensation Commissioner did not analyze the evidence on record.
It did not arrive at a finding that the deceased met with an accident. It
proceeded on the basis that deceased being a workman, it was obligatory on the
part of the first Respondent to maintain registers under the provisions of the
Minimum Wages Act.
The Commissioner, however, dealt with the legal issue as regards meaning of
'accidents and injury', observing :
"15. The more usual case of an accident is an event happening
externally to a man. The less obvious cases of accident are strain causing
rupture, bursting of aneurism, failure of muscular action of the heart,
exposure to draught causing chill, exertion in a stokehold causing apoplexy,
shock causing neurasthenia etc. Lord Atkin called them as "Internal
Accident". In such cases, it is hardly possible to distinguish in time
between the 'accident' and 'injury'. The rupture is an accident, at the same
time injury leading to death or incapacity at once or after a lapse of time.
Thus in cases of internal accidents, "Accidents" and
"Injury" coincide.
16. What the Act, therefore, really intends to convey is what might be
expressed as an 'accidental injury'. But the common factor in all cases of
accident, whether 'internal' or 'external' is some concrete happening at a
definite point of time and incapacity resulting from happening.
17. An accident happening to a person in or about any premises at which, he is
for the time being employed for the purpose of his employer's trade or business
shall be deemed to arise out of and in the course of employment."
Legal propositions are not in dispute. What is in dispute is whether the
deceased died of an accidental injury in the course of and out of employment.
An appeal was preferred thereagainst before the High Court by Respondent No. 3
under Section 30 of the Act. The said Appeal has been allowed by reason of the
impugned judgment. The High Court opined that the findings of the Workmen's
Compensation were perverse and inconsistent with the material on record as also
bereft of any reason.
It was held:-
"There is no material evidence to show that the deceased workman was
suffering from a heart ailment. There is also no evidence to demonstrate that
the workman was put through a sudden stressful condition in the course of his
duties, which brought on a cardiac arrest. In the face of these circumstances,
the reasoning of the Commissioner that the workman died as a result of an
accident during and in the course of his employment, is difficult to be
sustained."
Extensive reference was made by the High Court in its judgment to the decisions
of this Court in Regional Director, ESI Corporation and Another v. Francis De
Costa and Another 8 and Saurashtra Salt Mfg.
Co v. Bai Valu Raja Raja and Others to opine that the death of the
workmen was not during the course of his employment.
Learned counsel appearing on behalf of Appellant would submit that the High
Court committed a manifest error in arriving at the said finding insofar as it
failed to take into consideration that by reason of the strain of work, the
cause of the death was accelerated. As the Commissioner of the Workmen's
Compensation Commission arrived at a finding of fact, it was urged, the same
could not have been interfered with by the High Court in exercise of its
jurisdiction under Section 30 of the Act as no substantial question of law
arose for its consideration.
Mr. Nandwani, however, supported the judgment of the High Court.
The said Act was enacted to provide for payment by certain classes of employers
to workmen for compensation against injury by accident. The term 'accidental
injury' has not been defined under the Act. The liability of the employer for
payment of compensation, however, would arise if a personal injury is caused to
a workman by accident arising out of and in the course of his employment. What
is necessary for attracting the charging provision contained in Section 3 of
the Act is that (i) an injury must be caused to a workman; (ii) such injury
must have been caused by an accident; and (iii) it arose out of or in the
course of his employment.
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.
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.
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.
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.
This Court in E.S.I. Corporation (supra) referred to with approval the decision
of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig, 1939 Indlaw HL 11, wherein it was held :
"Nothing could be simpler than the words 'arising out of and in the
course of employment'. It is clear that there two conditions to be fulfilled.
What arises 'in the course of the employment is to be distinguished from what
arises 'out of the employment'. The former words relate to time conditioned by
reference to the man's service, the latter to casualty. Not every accident
which occurs to a man during the time when he is on his employment - that is,
directly or indirectly engaged on what he is employed to do - gives a claim to
compensation, unless it also arises out of the employment. Hence the section
imports a distinction which it does not define. The language is simple and
unqualified"
We are not oblivious that an accident may cause an internal injury as was held
in Fenton (Pauper) v. J. Thorley & Co. Ltd., 1903 AC 443, by the
Court of Appeal:
"I come, therefore, to the conclusion 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."
Lord Lindley opined :
"The word "accident" is not a technical legal term with a
clearly defined meaning. Speaking generally, but with reference to legal
liabilities, an accident means any unintended and unexpected occurrence which
produces hurt or loss. But it is often used to denote any unintended and
unexpected loss or hurt apart from its cause; and if the cause is not known the
loss or hurt itself would certainly be called an accident. The word
"accident" is also often used to denote both the cause and the
effect, no attempt being made to discriminate between them. The great majority
of what are called accidents are occasioned by carelessness; but for legal
purposes it is often important to distinguish careless from other unintended
and unexpected events."
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 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.
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 :
1. stress and strain arising during the course of employment
2. nature of employment
3. injury aggravated due to stress and strain
The deceased was traveling in a vehicle. The same by itself can not 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 this
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 therefor 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.
In Saurashtra Salt Manufacturing Co. (supra), this Court held :
"It is well settled that when a workman is on a public road or a public
place or on a public transport he is there as any other member of the public
and is not there in the course of his employment unless the very nature of his
employment makes it necessary for him to be there. A workman is not in the
course of his employment from the moment he leaves his home and is on his way
to his work. He certainly is in the course of his employment if he reaches the
place of work or a point or an area which comes within the theory of national
extension, outside of which the employer is not liable to pay compensation for
any accident happening to him. In the present case, even if it be assumed that
the theory of notional extension extends upto point D, the theory cannot be
extended beyond it. The moment a workman left point B in a boat or left point A
but had not yet reached point B, he could not be said to be in the course of
his employment and any accident happening to him on the journey between these
two points could not be said to have arisen out of and in the course of his
employment. Both the Commissioner for Workmen's Compensation and the High Court
were in error in supposing that the deceased workmen in this case were still in
the course of their employment when they were crossing the creek between points
A and B. The accident which took place when the boat was almost at point A
resulting in the death of so many workmen was unfortunate, but for that
accident the appellant cannot be made liable."
In General Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes ,
referring to the decision of Court of Appeal in Jenkins v. Elder Dempster Lines
Ltd. 1953 (2) AllER 1133, this Court opined therein that a wider test,
namely, that there should be a nexus between accident and employment was laid
down. It also followed the decision of this Court in Saurashtra Salt
Manufacturing Co. (supra).
This Court in ESI Corporation (supra) was dealing with a case where the
Respondent met with an accident while he was on his way to his employment. The accident
occurred at a place which was about 1 K.M. away from the factory.
In Mackinnon. Mackenzie & Co. (P). Ltd. v. Ibrahim Mahammad. Issak
this Court held :
"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 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"
The question recently has been considered by a Bench of this Court in Jyothi
Ademma v. Plant Engineer, Nellore, 2006 (7) SCALE 28 wherein it was
opined :
"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". "
Learned counsel appearing on behalf of Appellant seeks to distinguish this
decision stating that therein the job of the workman was merely to 'switch on
and switch off' and thus there has been no scope of stress and strain in his
duties and that the workman had been suffering from a heart disease. But in
this case also job of a cleaner was not strenuous and in any event far less
that of driver of the vehicle.
Only because the cause of death was due to heart attack, the same by itself may
not be a ground to arrive at a conclusion that an accident had occurred
resulting in injury.
The nature of duty of the deceased was that of a helper. Per se that the duties
would not be such which could cause stress or strain. If an additional duty
were required to be performed by him, the same was required to be clearly
stated.
Unless evidence is brought on record to elaborate that the death by way of
cardiac arrest has occurred because of stress or strain, the Commissioner would
not have jurisdiction to grant damages. In other words, the claimant was bound
to prove jurisdictional fact before the Commissioner. Unless such
jurisdictional facts are found, the Commissioner will have no jurisdiction to
pass an order. It is now well-settled that for arriving at a finding of a
jurisdictional fact, reference to any precedent would not be helpful as a
little deviation from the fact of a decided case or an additional fact may make
a lot of difference by arriving at a correct conclusion. For the said purpose,
the statutory authority is required to pose unto him the right question.
Section 30 of the said Act postulates an appeal directly to High Court if a
substantial question of law is involved in the appeal.
A jurisdictional question will involve a substantial question of law. A finding
of fact arrived at without there being any evidence would also give rise to a
substantial question of law. From the order passed by the Commissioner, it
appears, he has not arrived at a finding that the job involved any stress or
strain. It was merely stated that he was working as a Khalasi in a truck which
was going to Tavarewadi Village from Kolhapur to get the milk. The autopsy was
conducted at Chandgad District Hospital. The driver Prashant Chandrakant
Shreshti admittedly brought him to hospital. He was his brother. The post
mortem examination commenced from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m.
on the same day. From the post mortem report, it appears that in the
accompanying report, it is stated that the death was due to sudden heart
attack. When exactly the death took place is not known. It will bear repetition
to state that under what circumstances the death took place is also not known.
There was also no pleading in this behalf. The Commissioner came to the
conclusion that the death took place during the course of the employment but
then no evidence has been brought on record to show that it had a causal
connection between accident and serious injury so as to fulfill the
requirements of the terms "out of employment". Indisputably, there
has to be an proximate nexus between cause of death and employment. A stray
statement made by Appellant that the deceased had died while working in the
vehicle and stress or strain of the work did not appear to have any foundation.
Admittedly she was not present at the spot. She had also no personal knowledge.
All these facts she had admitted in cross-examination.
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 arose or not.
A question of law would arise when the same is not dependent upon examination
of evidence, which may not require any fresh investigation of fact. A question
of law would, however, arise when the finding is perverse in the sense that no
legal evidence was brought on record or jurisdictional facts were not brought
on record.
We are not oblivious of the proposition of law as was stated by Frankfurter, J. in J.J.O' Leary, Dy. Commnr., Fourteenth Compensation Distt. v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that the court will not disturb a finding of an Administrative Tribunal when two views are possible and only because the appellate court can take a contrary view. But in the instant case, the Commissioner did not go into the jurisdictional facts not arrived at any finding based on any legal evidence in regard to the causal connection between the employment and the death.
We, therefore, are of the opinion that ultimate conclusion of the High Court
may be correct. We although would not, thus, interfere with the impugned
judgment, but would direct that in event any amount has been paid to Appellant
the same need not be refunded.
The Appeal is dismissed subject to the observations made hereinbefore