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Judgment
J.N. Bhatt, J.—This appeal u/s 30 of the Workmen''s Compensation Act, 1923 ("Act" for short, hereinafter) is directed against the judgment and award passed by the learned Commissioner for Workmen''s Commissioner ("Commissioner" for short hereinafter) in Workman Compensation Application No. 32 of 1980, directing the opponents to pay an amount of compensation of R.s 19,200/-.
The facts giving rise to the present appeal needs narration at the outset so as to appreciate the merits of the appeal and the challenge against the same.
The present appellant is the original opponent No. 3. present respondent No. 1 is the original applicant, present respondent No. 2 is the original opponent No. 1 and present respondent No. 3 is the original opponent No. 2, who are hereinafter referred to as original opponent No. 3, the applicant and opponent Nos. 1 and 2 respectively for the sake of convenience and brevity.
The applicant filed an application under the provisions of Section 3 of the Act for compensation for the death of her husband. Babu Makiya, and claimed a sum of Rs. 21,600/ and also penalty and interest from all the opponents. According to the case of the applicant, the deceased Babu Makiya and working as a workman with opponent No. 2, who was a contractor of opponent No. 1, On 31.8.1980 the deceased Babu Makiya suffered a heart attack when he was on duty. He was shifted to Tata Hospital in an Ambulance at Mithapur, where he was declared dead. Thus, according to the case of the original applicant, deceased Babu Makiya died on account of heart failure during the course of his employment. The deceased was about 50 years old and he was a labourer. The deceased was earning round about a sum in the bracket of Rs. 300/- to Rs. 400/- per month at the time of his death. Original opponent No. 1 is the company which had engaged original opponent No.2 as its contractor and opponent No. 3 was the insurer. Therefore, the applicant claimed compensation from all the opponents.
Opponent Nos. 1 and 2 appeared and filed separate written statements. Opponent No. 1 has filed written statement, at Ex. 11. Opponent No. 2 has filed its written statement, at Ex. 23. The cause of death was seriously, disputed. It was denied that the deceased died on account of accidental injuries. It was also denied that the deceased died during the course of his employment. Thus the accidental death or injury during the course of employment was, seriously disputed. According to the contention of the opponents, deceased died a natural death. Therefore, it was contended that there was no casual connection with the death and the employment. Thus, the liability for the payment of compensation was seriously challenged.
In view of the facts and circumstances and the pleadings of the parties, points for determination were raised at Ex. 26.
The parties relied on the following oral evidence.
Sundarbai Ramji (widow of the deceased Babu)--Ex.33.
Bhima Lalji (co-worker of the deceased Babu)--Ex.37.
Dilubha Manubha (co-worker of the deceased Babu)--Ex.42.
Thakarshi Jeram (Contractor/opponent No.2)--Ex.44.
Dinesh Gopal (Accountant)--Ex.49.
On appreciation of the evidence on record, the learned Commissioner reached to the conclusion that the deceased workman--Babu Makiya, had sustained injuries on account of the accident which arose out of and during the course of his employment. He found that the deceased was a workman and he was earning an amount in the bracket of Rs. 300/- to Rs. 400/- per month, at the relevant time. It was also found by the learned Commissioner that opponent No.1 was the company which had engaged the contractor, opponent No.2, and opponent No.2 had engaged the deceased Babu Makiya as his workman and opponent No.3 was the insurer. There fore, he was pleased to pass an award of Rs. 19,200/- with interest at the rate of 6 per cent per annum from the date of award against all the three opponents with cost of Rs. 300/- on 21.1.1982. Hence, this appeal.
Learned advocate Mr. Sorporkar, appearing for the appellant/original opponent No.3, insurance company, has contended that the learned Commissioner has committed a serious error in holding that the deceased had died due to accident injury. It is contended that the deceased Babu Makiya died a natural death. He has seriously criticised the finding of the learned Commissioner and the observation in this behalf made in paragraph 23 of the award. The learned Commissioner, in the facts of the case and on appreciation of the evidence, reached to the conclusion that the deceased workman-Babu Makiya died due to accidental injury on account of physical exertion and strain during the course of his employment.
It may be mentioned at this stage that deceased Babu Makiya was working as a labourer and he was doing work of a "Khalasi" involving hard labour and strenuous physical exertion. The unfortunate incident occurred on 31.8.1980. It is an admitted fact that the deceased was a workman and he died on 31.8.1980 after he reported for duty. The owrking hours of the deceased were 8a.m. to 12 noon and 1 pm to 5pm. Thus, there was a break of one hour in between two spells. The deceased went to attend to his duties on 31.8.1980. in the morning at about 8.a.m. and he performed his duties as a labourer. He started having chest pain after 2 to 3 hours in the morning. Therefore, he took rest for about 15 to 20 minutes. Thereafter he again started working. Later on he was fainted and became almost unconscious. Therefore, he was shifted in an ambulance to Tata Hospital at Mithapur where he was delcared dead. The learned Commissioner relied on the evidence of the widow of the deceased Sunderbai, at Ex. 33 and die evidence of co-worker Bhima Lalji, at Ex. 37 so also the evidence of Dilubha Manubha, at Ex. 42. He also relied on other facts and circumstances and found that the death of the deceased was attributable to the accidental injury and out of and in course of his employment. He positively held that it was not a natural death. The finding on his point, arrived at by the learned Commissioner, is assailed on the ground that he should not have inferred the death arising due to accidental injury in absence of medical evidence and post mortem report. This contention may, prima facie, appear to be subtle but not sustainable. Had the medical evidence been recorded or led, it would have been better, but merely because medical evidence is absent, it cannot be said that the finding of the learned Commissioner is erroneous. No doubt, the learned Commissioner could have insisted or even "suo motu" called for the medical certificate or post mortem report or for the evidence of the medical officer. In view of the specific provisions made in the Act, the role of the Commissioner under the Act is quite distinct and different than that of a Civil Judge. The provisions of Rule 41 of the Workmen''s Compensation Rules gives enough discretion to the Commissioner to depart from the provisions of the Civil Procedure Code, some of which have been made applicable to the proceedings before him .Be it as it may, by not calling for the evidence of the medical officer or the postmortem report, it seems that he was not alert and vigilent in his approach as a Commissioner under the Act.
However, it cannot be gain-said that the finding of the Commissioner would stand vitiated in absence of medical evidence and merely because he has inferred the death due to accidental injuries. Such a contention raised on behalf of the appellant is meritless. As observed here in be fore the Commissioner is not a Civil Court and is not bound by the technical rules of CPC or the Evidence Act. There is evidence on record that the deceased had sustained chest pain between 8 a.m. To 11a.m. On the date of the incident, that is, 31.8.1980. The deceased worked till 11a.m. on that day. He had suffered chest pain. Therefore, he stopped the work and took rest for 15 to 20 minutes. He again started working and doing labour work. Thereafter again there was chest pain. The deceased complained to Dilubha Manubha, his co-worker about the chest pain and subsequently he fainted and became almost unconscious. This is clearly testified by coworker, Dilubha Manubha, at Ex.42, who was present at the time of incident.
It is also very clear from the evidence on record that deceased Babu Makiya had to do hard and heavy labour work. He was engaged in lifting heavy pipes with the help of chain. The contractor, Thakersi Jeram, original opponent No.2 has, clearly, stated in his evidence that the deceased was engaged in pipe lifting work. The weight of one pipe came to be about 600kgs. There was NS steel pipes. One pipe was of 16" (inch) in diameter and in diamension and 15 ft in length. So the deceased was doing labour work for the lifting of the said pipes with the help of chain. Be it as it may. One thing is obvious that the deceased was involved in a very heavy and hard labour work, which, undoubtedly would affect the physical efficiency and health. Under these circumstances, the finding of the learned Commissioner that he inferred the death of the deceased Babu Makiya because of accidental injury cannot be said to be unreasonable. In fact, such a finding is fully justified and the Commissioner can also infer the cause of death. In the set of the facts of the present case, the learned Commissioner observed and found that the deceased workman, Babu Makiya, died due to accidental injury during the course of his employment.
It is true that the expression "accident" has not been defined in the Act. However, Law Lexicon States that the word "accident" generally means some unexpected event happening without design even though there may be negligence on the part of the workman. It is used in the popular and ordinary sense and means a miship or an untoward event not expected or designed. What the Workman''s Compensation Act, 1923 really intends to convey is what might be expressed as an accidental injury. Accident and injury are distinct. In cases where accident is an event happening externally to a man, but accident may be an event happening internally to a man and in such cases accidental injury coincides. Such cases could be high lighted, or listed, like, failure of heart, haemorrhage of brain, etc., while the workman is doing his normal. Work. The connection between the injury and the employment may be furnished by strain of work, if the strain had attributed or aggravated or hastened the injury. The deceased had chest pain in the morning of the day of the incident, that is, 31.8.1980, after he put in three hours laborious work. Therefore, he had to take rest for 15 to 20 minutes. Again he resumed his duty as a disciplined labourer and again he felt chest pain, fainted and became almost unconscious. He was immediately shifted in an Ambulance to hospital. This circumstance would, undoubtedly, permit the learned Commissioner or any court to safely infer that the death of the deceased Babu Makiya was attributable to the accidental employment injury. It has also got to be inferred that strain of work which the deceased had undertaken would attribute and aggravate such a disease or injury. The deceased was about 50 years old. The widow of the deceased Sunderbai has clearly testified in her evidence at Ex. 33, that her deceased husband was suffering from chest pain and he was undergoing medications. This part of the evidence of the applicant/ widow of the deceased has remained uncontroverted. It is also not challenged in the cross-examination. What was the exact disease late workman Babu Makiya was suffering is not manifested from the record. However, he had some trouble and ailment in the chest. The deceased was performing his duties as a labourer Khalasi. He was doing strenuous and hard labour work during the working hours which were from 8a.m. To 12 noon and 1p.m. to 5p.m. He was required to lift heavy pipes with the help of chain and other co-workers. Such type of work would, undoubtedly, accelerate and aggravate the ailment and disease of chest. In any event, if strain of work causes inefficiency, that strain itself would the cause of death and it would be personal injury suffered by an employee in the course of his employment. This view is also fortified by the following decisions rendered by this Court:
(1) Amubibi v. Nagri Mills Company Limited 1503 GLR 681.
(2) Broach Municipality v. Raiben 17 (2) GLR 881.
Next it was contended that the evidence of widow Sunderbai cannot be relied on in view of the letter written by her to the Superintendent of Tata Hospital, at Mithapur. A copy of the said letter dated 18.9.1980 is produced at Ex. 35. This letter is written 17 days after the accident. It is purported to have been written by the widow of the deceased that the decease Babu Makiya died around 1p.m. and the Superintendent of the hospital was required to state as to what was the exact reason for the death of deceased Babu Makiya. Relying on the said letter it is contended that the widow was not knowing the cause of death even after 17 days and, therefore, she was not entitled to any compensation. This contention cannot be accepted on various reasons, some of which may be stated as under:
(i) there is no signature in the copy of the letter alleged to have been written by the widow of the deceased;
(ii) there is no evidence on record to show that widow of the deceased was literate;
(iii) the manner and mode in which the letter is drafted cannot be said to have been written by the widow of the deceased.
Assuming even for the sake of the argument that the said letter was written by the widow, as contended by the learned Counsel for the appellant, then also it "ipso facto" would not lead to an inference that the deceased had died a natural death, as argued on behalf of the appellant in this case. Obviously, the widow might have been advised to write to the Superintendent of the hospital to ascertain as to what transpired and what happened and how the death occurred. However, that by it self would not dynamite or destroy her evidence and her say that her husband was suffering from chest pain and he was under medication, was erroneous or unbelievable. In any way, the copy of the letter alleged to have been written by the widow of the deceased, which is produced at Ex.35 does not help the insurer to escape the liability of the payment of compensation by diminishing the proved facts on record. Therefore, the contention raised on behalf of the appellant/insurer on this score must fail. It may be noted that the Commissioner is not a Civil Court and is not bound by the provisions of the CPC or that of the Evidence Act. It is always open for the Commissioner to draw reasonable inference from the factual aspects emerging from the evidence on record and he must take a vigilent and alter approach. The learned Commissioner was fully justified when he construed and analysed the evidence on record and drew a safe and permissible inference of death of the deceased attributable to the employment injury, on the basis of material available before him.
In order to succeed in a compensation application u/s 3 of the Act, three following factors must be established:
(i) that there must be an injury;
(ii) that it should be caused in an accident; and
(iii) it should be caused in the course of employment.
It is an admitted fact that the deceased Babu Makiya was a workman. It is also an admitted fact that the deceased died on 31.8.1990. After he reported for duty. The dispute was about the cause of death and time of death. It is clearly found from the evidence on record that the deceased Babu Makiya died due to personal accidental injury during the course of his employment. The conclusion of the learned Commissioner that the deceased Babu Makiya died an accidental injury arising out of and in the course of employment is fully justified. The personal injury resulting into death has direct and proximate nexus with employment. Thus, there is sufficient evidence on record to show that the conclusion of the learned Commissioner is fully justified and reasonable and it has remained unassailable. The sole contention raised on behalf of the appellant/insurer, therefore, must fan
In the result, the present appeal must fail. It is, therefore, dismissed with costs.