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Judgment
P. Sathasivam, J.—The petitioner in W.C.No. 272 of 1992 on the file of Commissioner for Workmen''s Compensation (Deputy
Commissioner of Labour-II) Madras-6 is the appellant in the above appeal. In respect of death of her husband Parthasarathy in the course of his
employment on 26.11.90, the petitioner has prayed for a compensation of Rs. 66,516 as per the provisions of the Workmen''s Compensation Act.
The said application was resisted by the Management-Railway administration by filing counter statement. The Commissioner, on consideration of
the claim of both parties, after holding that the death of Parthasarathy due to heart attack was nothing to do with his employment and the death was
not in the course of his employment, dismissed her petition for compensation. Questioning the said order, the petitioner-wife has preferred the
present appeal before this Court.
Mr. K. Elango, learned counsel for the appellant, after taking me through the specific averments in the application, reply statement, additional
reply statement, deposition of P.W.1-appellant herein and the order of the Commissioner, would contend that since the deceased Parthasarathy
was called by his immediate senior to attend night duty against a casualty on 26/27.11.90 and he was found dead on the platform of Ponneri
Railway Station around 23.00 hours on 26.11.90 which is evident that he had heart attack minutes before he joined duty. He further contended
that on the basis of the materials placed, the Commissioner ought to have found that the death of the said Parthasarathy occurred during the course
of his employment and also arising out of his employment. On the other hand, Mr. V. Radhakrishnan, learned counsel for the Southern Railway,
would contend that the death was not in the course of his employment and it was only a natural death, hence the Commissioner is fully justified in
dismissing the claim of the appellant. He also contended that the appellant was settled all other death-cum-retirement benefits of her husband.
While admitting the appeal on 22.7.94, the following substantial question of law was framed by this Court:
Whether the learned Authority is right in deciding that the death of the appellant''s husband did not arise out of and in the course of employment?
Before considering the merits of the claim of the appellant and the stand taken by the opposite party-Railway administration, it is useful to refer
Section 3 of the Workmen''s Compensation Act which is the soul of the Act and it specifies the circumstances under which the employer is liable
for workmen''s compensation. Section 3(1) reads as follows:
3(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 a 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
workman, 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 of workmen"".
In order to attract the above provision, three conditions mentioned therein are to be fulfilled. They are: (i) personal injury; (ii) accident; (iii) arising
out of and in the course of employment. There is no dispute that death is a personal injury. The only controversy thus centres round the question as
to what the expression ""arising out of"" connotes. In this regard, it is relevant to refer a Division Bench decision of the Bombay High Court in
Zubeda Bano and others Vs. Maharashtra State Road Transport Corp. and others, . In that case, the claim arose due to the death of bus driver
due to heart attack while changing destination board. After referring to various decisions, including the judgment of the Supreme Court, the
Division Bench has held thus; (paras 9 and 10)
Legal position thus seems to have been settled down to this: Heart injury when brought about by a strain due to the work in the employment
(and not by natural wear and tear of employment) is compensable though pre-existing condition may have been the contributory element and this is
irrespective of the percentage of the part played by either of them viz., the work and the condition.
What about a case of accidental death by heart failure due to heart attack where contributory factor of existence of pre-condition of heart
ailment does not exist? The answer given by a Full Bench of the Assam High Court in the case of Assam Railways and Trading Co. Ltd. v.
Saraswati Devi 1958 A.C.J. 394 can best be summarised in its own words:
Even in cases where a person has been suffering from heart disease, if the nature of the work has contributed to the deterioration of the heart and
his death, the personal injury can be said to arise out of his employment. The case where the deceased was not suffering from any previous heart
disease, is to my mind a stronger case and in such circumstances if he suddenly gets a heart attack while proceeding to perform his duty, the
accident can be nothing but arising out of his employment.
Now let us consider the stand taken by both parties. It is the specific case of the applicant that her, husband joined the Railways on 25.9.1965
and he was working as line-man-Grade I under the control of Chief Traction Foreman, Overhead Equipment, Southern Railway, Ponneri at
Ponneri. The applicant''s husband was asked to perform night duty i.e., from 10 p.m. to 6 a.m. on 26/27.11.1990, for want of staff, since night
duty ELC one R. Sriramulu was under sick list and MCM A. Rahiman was also on leave. It is further stated that at about 23.00 hours MB.
Srinivasan, Signal Inspector/Ponneri found the applicant''s husband lying on the end of the Platform No. 1 near the track unconscious. Thereafter,
TFO with the available staff at the depot had rushed to the spot and had taken the applicant''s husband to the Government Hospital, Ponneri where
the duty Doctor declared him dead due to massive heart attack. Accordingly, it is specifically stated that this incident had taken place when he was
on his way to attend the out of turn night duty on 26/27.11.90 at about 23.00 hours. The applicant in her evidence as P.W.1 has corroborated the
same. It is stated that,
It is also relevant to note the additional reply statement filed on behalf of the opposite party-Southern Railway. It is admitted that after working in
various Grades, the deceased Parthasarathy was working as Line-man in Grade scale of Rs. 1320-2040 till his death on 27.11.90. In para 1 sub-
para 4 it is stated that, ""it is submitted that the said deceased employee was called for to attend night duty by his immediate Supervisor-the
Traction Foreman (Overhead Equipments)/ Ponneri on the night of 26/27.11.90 while he was availing rest on 26.11.90...,"". In para 2 it is stated
that, ""It is submitted that the late employee Sri R.S. Parthasarathy was booked for night duty on 26/27.11.90 against the staff casuality..."". Though
it is stated that the late R.S. Parthasarathy was not on duty and he was found lying unconscious condition on the Platform at about 23.00 hours on
26-11-90, it is clear from the reply statement that due to absence of regular employee, the deceased employee R.S. Parthasarathy was called for
to attend night duty by his immediate Supervisor-Traction Foremen, Ponneri for night duty on 26/27.11.90. It is also clear that pursuant to the said
direction, the deceased left his home and reached the work-spot at 10 P.M. It is not disputed that his working hours was 10 P.M. to 6 A.M. It is
not the case of the Railways that he has to sit in an office room and perform his duty. Since the deceased was working as Line-man, Grade I, he
has to look after the over-head equipments by watching the electrical lines etc. It is also not disputed that the Platform in Ponneri Railway Station
where he was found lying unconscious and had a massive heart attack, forms part of his work-spot. In the light of these factual details, if the
deceased suddenly gets a heart attack while proceeding to perform his duty, the accident can be nothing but arising out of his employment. The
Division Bench decision of the Bombay High Court and the Full Bench decision of the Assam High Court supports our view.
Learned counsel for the respondent Railways relying on a decision of the Apex Court in Regional Director, E.S.I. Corporation and another Vs.
Francis De Costa and another, , would contend that unless the injury that was caused or had its origin in the employment, the claimant cannot
succeed in a claim. The said decision relates to claim under Employees'' State Insurance Act, 1948. Further, the accident therein took place 1.
K.M. away from the place of employment. On these facts, the Supreme Court has held that there is no casual connection between the accident
and the employment. After going through the factual details, we are of the view that the said decision is not applicable to the case on hand, though
similar provision is there in the Employees'' State Insurance Act.
It is also relevant to refer a Division Bench decision of this Court in Thiru. T. Shanmuga Mudaliar Vs. Smt. Noorjahan, Mohd. Amsad, Apsana
Parveen and The Divisional Manager, United India Insurance Co. Ltd., . The question in the appeals decided by the Division Bench was, whether
the death of the workman, driver of a bus, due to heart failure was caused because of the heavy strain of employment. The following observation
of the Division Bench in para 4 is relevant;
4....The connection between the accident and the employment may be established if the strain had contributed to or accelerated or hastened the
accident. It may not be possible at all times to produce direct evidence of the connection between the employment and the injury, but if the
probabilities are more in favour of the applicant then the Commissioner is justified in inferring that the accident did in fact arise out of and in the
course of the employment.
In Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, , the Supreme Court held thus;
To come within the Act,....there must be a casual 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, to 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.
In the present case, we have already referred to the specific claim of the applicant as in the application as well as her evidence as P.W.1. It is
not disputed by the Railways that the deceased employee R.S. Parthasarathy was called for to attend night duty by his immediate supervisor on
26/27.11.90 against the staff casuality. It is the evidence of P.W.1 that pursuant to the direction of the Supervisor, the deceased left home and
reached the work-spot and died at 23.00 hours due to massive heart attack. Admittedly, he worked on the previous day and because of the
absence of concerned staff, the deceased was summoned to work for night duty on 26/27.11.90. In other words, he had worked the whole day
on 26th and again he was asked to work for night duty on 26/27.11.90, and on reaching/nearing the work-spot, he collapsed and died due to
heart attack. It is safe to presume that strain had contributed to or accelerated or hastened the accident. Even in the absence of direct evidence, if
the probabilities are more in favour of the applicant, considering the object of the Act, the Commissioner who is the competent authority is to infer
that the accident did in fact arise out of and in the course of employment. No doubt, learned counsel for the respondent has also relied on a
decision of the learned Single Judge of this Court in Commissioner, Kovilpatti Municipality v. Tamilarasan and 3 Ors. 1998 (1) L.W. 669. In that
case, an employee of a factory was assaulted by miscreants on the public road and died as a result thereof on the next day which cannot be said to
have died in the course of employment. The learned Judge was perfectly right in holding that mere road accident while an employee is on his way
to the place of employment cannot be said to have its origin in his employment in the factory. The factual details show that the said decision is not
applicable to the case on hand.
In the light of our discussion, we are of the view that the Commissioner failed to consider all the relevant materials and committed an error in
dismissing the claim petition. The deceased workman is survived by his wife, the applicant, two minor sons and one minor daughter. The deceased
workman''s parents pre-deceased him. It is further seen that the applicant''s husband was the sole bread-winner of the family. The monthly wages
of the deceased workmen was Rs. 1,470 and he was 46 years old at the time of his death. As per the formula provided under the Act, the
applicant is entitled to a lumpsum payment of Rs. 66,516 as compensation. The respondent has not raised any objection for arriving of the amount.
Accordingly, the impugned order of the Commissioner dated 1.3.1993 is set aside and we hold that the deceased R.S. Parthasarathy died in the
course of his employment and the appellant who is wife of the deceased is entitled to compensation which we quantify as Rs. 66,516. The
respondent-Southern Railway is directed to pay the sum of Rs. 66,516 to the appellant towards compensation on the death of her husband with
interest at six per cent from the date of petition till date of payment. C.M.A. is allowed. No costs.