United India Insurance Co. Ltd., Divisional Branch vs Padmini and Another

S. Manikumar, J.—Challenge in this civil miscellaneous appeal is to the finding fastening liability on the appellant Insurance company to pay

compensation of Rs. 1,32,121/- for the death of one Mr. Prahaladan, a Night Watchman in Devarshola Estate, Thasishola Plantation Pvt. Ltd.,

Devarshola, Nilgiris District. As per the claim in W.C. No. 3 of 2008, made by the wife, the deceased was employed as a Night Watcher in

Devarshola Estate, Coonur, Nilgiris District. On 12.3.2007, when he was engaged in his duty, he fell down from a vulnerable post. He sustained

injuries. Besides, there was shock. Though, he was provided with first aid and treated in Estate Garden hospital and thereafter, rushed to Sultan

Battery MES Hospital, about 25 kms away from the Estate, he died. The certificate issued by the hospital indicated death was due to stroke as a

result of Cerebral Hemorrhage, and also hypertension.

According to the widow, her husband earned Rs. 2,264.60p per month, prior to death. Notice of accident was served on the 2nd opposite

party on 14.3.2007. As the compensation claimed was not paid by the Management, it resulted in a claim before the Deputy Commissioner of

Labour. United India Insurance Company, Ootacamand, the 1st opposite party has opposed the claim, contending inter alia that there was no

accident during the course and arising out of employment, with the 2nd opposite party.

According to the Insurance company, admittedly the deceased was suffering from hypertension and other diseases, which ultimately led to

cerebral hemorrhage and stroke and hence the death was only due to the disease and not due to any employment injury, alleged to have occurred

on 12.3.2007. The company has further submitted that in the absence of any police complaint or post mortem conducted on the body, the cause of

death cannot be attributed to any employment injury, arising out of an accident during the course of and arising out of the employment, in the

plantation estate.

Before the Commissioner for Workmen''s Compensation viz., Deputy Commissioner of Labour, Coonur, widow of the deceased examined

herself, as A.W.1 and reiterated the averments made in the claim petition. A.W.2, is stated to be a co-employee and an occurrence witness.

A.W.3 is the Doctor, examined on behalf of the applicant/claimant. Exhibit P-1, Salary chit, Exhibit P-2, Claim petition, Exhibit P-3, death

certificate, Exhibit P-4, Certificate issued by MES Hospital, have been marked on the side of the claimant.

The 2nd opposite party, has also denied the contention that Prahaladan, husband of the 1st respondent met with an accident, in the course of

employment. However, in the counter affidavit, the Sr. Manager, Devarshola Estate has submitted that the deceased was found on the ground

vomiting blood around 1.15 a.m., on account of stroke due to cerebral hemorrhage and hypertension, which had nothing to do with the

employment and that it was only due to the pre-existing disease. The senior Manager of the Estate has further submitted that the death was natural,

on account of the pre-existing ailment and that there was no nexus between the death of the deceased and employment. The Estate Manager in his

counter affidavit has further submitted that prior to death, the injured was found unconscious and while he was shifted in an ambulance to Garden

Hospital, his blood pressure reading was 140/90 and the Pulse rate recorded 60 per minute, and taking into consideration the physical condition,

he was rushed to Muslim Education Society Hospital, at Sultan Battery for further treatment. Without prejudice to the above, he has submitted that

in as much as there was an insurance policy with the company, no liability can be fastened on the Estate. In the above said circumstances, prayed

for dismissal of the claim, against the Estate.

On behalf of Devarshola Estate, Mr. Vinay Devaiah, the Manager of the Estate examined himself as RW1 and reiterated the averments made in

the counter affidavit. Exhibit R-1, dated 12.3.2007, letter given by the administration and Exhibit R-2, Salary certificate, have been marked on

behalf of the 2nd opposite party, Estate.

Upon evaluation of pleadings and evidence, the Deputy Commissioner of Labour for Workmen''s Compensation, Coonur, held that the accident

occurred during the course and arising out of employment and accordingly, quantified the compensation as per the structured formula provided for,

under the Employees'' Compensation Act, 1923 and awarded compensation of Rs. 1,32,121/- with interest, at the rate of 10% per annum, as per

the provisions of the Act.

Being aggrieved by the finding fastening liability on the company to pay compensation, Mr. M.B. Gopalan, learned counsel for the company

submitted that the death of Mr. Prahaladan, husband of the respondent, was on account of stroke due to cerebral hemorrhage and hypertension,

which had nothing to do with the employment and that the death was only due to the pre existing ailment. Pointing out that the deceased did not

sustain any grievous fatal injuries, proximate to the cause of death and also to the fact that no FIR was registered by the legal representatives of the

deceased or any other person and inviting the attention of this Court to the contents of Exhibit P-3, death certificate issued by the hospital that the

death was on account of stroke and cerebral hemorrhage and hypertension, learned counsel for the insurance company submitted that the

Commissioner for Workmen, has erred in arriving at the conclusion that there was an employment injury, arising out of and in the course of

employment and consequently, erred in fastening liability on the company to pay compensation. He also pointed out that to prove the cause of

death, no postmortem has been done. According to him, the deceased was only suffering from heart ailment and blood pressure and even

assuming that there was an untoward incident, on 12.3.2007, within the estate premises, still it cannot be construed that the death was due to stress

and strain, involved in the avocation or due to the injury, the 1st respondent died. According to him, the Commissioner for Workman has

mechanically allowed the claim petition, when the death was not due to any accident, during the course of and arising out of employment.

Per contra, inviting the attention of this Court to the counter affidavit, filed by the senior Manager, Devarshola Estate, Coonur, Nilgiris that the

employment of the deceased Prahaladan with the Estate has not been denied, Mr. Balan Haridas, learned counsel for the 1st respondent submitted

that the fact that the deceased was taken from the premises of the Estate to the hospital has not been disputed. Taking this Court through the oral

testimony of A.W.2, Mr. Peter, a co-watchman employed in the Estate who has deposed to the effect that Prahaladan sustained an injury and

thereafter, started vomiting blood and rushed to the hospital, learned counsel for the 1st respondent submitted that the presence of the deceased on

12.3.2007 and the injury sustained during the course of and arising out of employment cannot be disputed. He further submitted that A.W.2, an

acting watcher has clearly deposed that the duty of the watchman in the 2nd shift, is to monitor the factory and give proper signals and report, and

that the duty hours were between night 1.00 a.m. to next day morning 8.00 a.m. and when he had found the deceased, on the ground, vomiting

blood, he had immediately informed the factory officer Mr. Benjamin and took the deceased Prahaladan to the Garden Hospital, in an Ambulance.

He has further deposed that, as there was no doctor and only nurses were available in the said hospital, on the advice of the Compounder,

Prahaladan was taken to Hospital at Patheri.

A.W.3, Doctor, examined on behalf of the respondent, has deposed that on provisional diagnosis of stroke, the injured was not moving the left

side of the body. CT Scan was done on the same day and according to him, CT Scan revealed a large intra cerebral hemorrhage in the right side.

Though he was treated for two days in the hospital, he died on 14.3.2007 at 12.45 a.m.

One Mr. Vinay Devaiah, Manager of Estate has admitted that the deceased was an employee of the estate. He has deposed that there was no

accident arising out of and during the course of employment resulting in employment injuries.

Pleadings and evidence on record makes it clear that, the time of the 2nd shift was between 1.00 a.m. (night) and 8.00 a.m. (on the next day).

As per the version of A.W.2, the acting watcher, it is the duty of a watchman to go around the factory and monitor the activities of the workmen

engaged, during the 2nd shift and give proper signal. During his 2nd shift duty, he had found Mr. Prahaladan, on the ground. In his evidence, he has

clearly deposed that the deceased was found vomiting blood. Mr. Vinay Devaiah, Manager of the estate, while admitting the employment of the

deceased has also deposed that the deceased was found on the ground vomiting, at 1.15 a.m. Thus it is clear that the deceased was in employment

of the estate on that day and that there is categorical evidence to prove that he was found on the ground, vomiting blood.

One of the contentions raised by the learned counsel for the appellant Insurance company is that the Commissioner has recorded an erroneous

finding, in the absence of FIR or postmortem report. At this juncture it is worthwhile to consider the testimony of A.W.2, Acting watcher of the

Estate, who has clearly deposed that when he had noticed Mr. Prahaladan on the ground, immediately thereafter, Mr. Benjamin, the Factory

Officer was informed and thereafter, the deceased was rushed to Garden Estate Garden hospital in an ambulance. As the Doctor was not available

and nurses only were available, as advised by the Compounder, Prahaladan was taken to another Hospital at Patheri.

Though the learned counsel for the insurance company has submitted that postmortem report has not been filed to prove the cause of death

and much reliance has been placed only on Exhibit P-4, certificate issued by ENS Hospital and on the oral testimony of R.W.1, Vinay Devaiah,

Manager of the Estate, perusal of the award shows that inspite of an untoward incident and immediate reporting to the Factory officer, the police

has not been informed, by the Factory officials. The accident has occurred on 1.15 a.m., When A.W.2, has noticed Prahaladan, he had

immediately informed the Factory Officer and thereafter, the injured has been provided with initial treatment. Both Estate Garden and MES

Hospital are private hospitals. No sooner the persons who found Mr. Prahaladan on the ground vomiting blood, have informed the hospital

authorities that the deceased, after a fall from a vulnerable point, sustained an injury and was found vomiting blood, the hospital authorities should

have registered a medical legal case and that they should have also informed the police. The evidence of A.W.2, Acting watcher is to the effect that

the deceased sustained an injury. Relevant portion of his evidence, extracted from the award.

Vernacular matter omitted.

Though, R.W.1, Mr. Vinay Devaiah, Estate Manager, has deposed that the death was only on account of stroke, due to cerebral hemorrhage

and hypertension and on that basis the insurance company has contended that there was no proximity, with any employment injury, giving rise to

cause of action for claiming compensation under the Employees Workmen''s Compensation Act, after considering a Division Bench judgment of

this Court in Pallavan Transport Corporation Vs. Saroj Goyal and Others, the Commissioner for Workmen, has given weightage to the testimony

of A.W. 1 and A.W.2 and accordingly held that the accident occurred during the course of and arising out of employment resulting in death, and

accordingly, awarded compensation.

In the above said Division Bench judgment, except the oral testimony of the claimant and P.W.2, eye witness, no other evidence was let in by

the legal representatives of the deceased. Likewise, except the oral testimony of R.W. 1, driver of the bus, there was no supporting oral evidence.

Even in the absence of police records like FIR, etc., the Division Bench of this Court, at paragraph No. 8, held as follows:

Likewise, merely because the eye witness did not inform the police nor made any specific complaint it did not diminish his statement before the

Court regarding the manner of accident. If the evidence of the said witness is cogent, natural and probable even in the absence of the fact that he

did not inform the police regarding the manner of accident, it can safely be accepted. In this regard learned counsel appearing for the claimants

very much relied upon Natchathiram and Others Vs. Jayasekaran and Others, . The learned Judge in a similar circumstance has held,

10....The mere fact that he has not given any complaint to the police will not diminish the credibility of the witness to any extent as observed by the

Tribunal.....

We are in agreement with the view expressed by the learned Judge.

Primarily, when the Commissioner for Employees Workmen''s Compensation Act, on proper analysis of oral and documentary evidence and

after, taking note of a Division Bench judgment of this Court, has arrived at a conclusion, that the accident occurred during the course of and

arising out of employment, no manifest illegality can be attributed to the impugned award.

At the time of accident, the deceased was aged 60 years. According to the appellant and the employer, the cause of death was on account of

stroke, cerebral Hemorrhage and hypertension. The work of a watchman includes constant check and monitoring, inside the factory/industry

premises. First of all, no document has been filed by the Insurance Company to prove that the deceased had a pre existing ailment, of any heart

problem or blood pressure. Even assuming that the deceased had blood pressure and ailment, yet the stress and strain involved in the duty of a

watchman, during night hours, keeping vigil inside the factory premises, cannot be ruled out. As per medical texts, the sleeplessness, increases

blood pressure. When there is a likelihood of stress and strain arising out of the employment depending upon the nature of employment, shock due

to an injury, would certainly, accelerate any pre existing disease. Thus even taking it for granted that the Night Watchman Prahaladan was suffering

from blood pressure and suffered a stroke, due to cerebral hemorrhage and hypertension, there is a causal link between the death and the

employment injury, which he sustained during the night hours on 12.3.2007, and that the same cannot be ruled out.

As per the claim, while patrolling at a vulnerable point and after giving a beep sound, Mr. Prahaladan fell down from a post, sustained an injury

in the hand, found unconscious and rushed to the hospital. Increase in blood pressure to a 60 years old man, may be, due to the sudden fall from a

height and later on, he would have suffered a stroke, or after the hemorrhage and stroke, he would have fallen from the height. When a person falls

from a height, the possibility of increase in blood pressure due to fear and shock, also cannot be ruled out. No document has been produced by

the management that prior to death, the deceased was suffering from heart ailment or hypertension. Therefore, it cannot be contended that the

deceased was suffering from the ailment, and hence the death was natural. Even taking it for granted that the deceased was suffering from the

above ailment, considering the duties of a night watchman, who has to go around the factory premises, in the night hours, the likelihood of

acceleration of any existing disease, cannot be ruled out. In the case on hand the deceased was 60 years and certainly, the age will have an impact,

on the nature of work also.

On the aspect of an employment injury and the liability on the Company to pay compensation, let me consider some of the decisions.

(a) In Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, the Bombay Port Trust had employed a night watchman at its pumping

station where a process was carried on for pumping water by more than ten persons. One night, when the watchman was on duty as usual, he

complained of plain in his chest and he was asked to lie down. His condition deteriorated and he died after a few hours. The medical evidence

showed that the deceased was suffering from heart disease and that the death was brought about by the strain caused upon his heart, by the

particular work that he was doing, viz., having to stand on his legs and having to move about as a watchman. The question posed before the Court

was whether the deceased died of injury by an accident arising out of and in the course of employment. The High Court of Bombay held that he

died of an injury by an accident falling within the scope of S. 3 of the Act. The Learned Chief Justice, who delivered the judgment for the Bench

observed that if the workman died as a natural result of the decease from which he was suffering, then it could not be said that his death was

caused out of his employment. If a workman was suffering from a particular disease and as a result of wear and tear of his employment he dies of

that disease, no liability would be fixed upon the employees. But if the employment is a contributory cause, or if the employment has accelerated

his death, or if it would be said that death was due not only to the disease but the disease coupled with the employment, then the employer would

be liable and it could then be said that death arose out of the employment of the deceased.

(b) In Bai Shakri Vs. New Manekchowk Mills Company Ltd., Guj, the Gujarat High Court held that

10.....Once it is found that the work which he has been doing is to be within his employment, the question of negligence, great or small on his part

is irrelevant. Once it is established that workman is doing an act which is within the scope of his employment though in a way which is negligent in

any degree and is injured by risk incurred only by that way of doing it, he is entitled to compensation per LORD ATKIN in Haris v. Associated

Portland Cement Manufacturers Ltd. 1939 A.C. 71. The determinate factor is whether the personal injury suffered by the workman arose out of

and in the course of his employment.

Similarly, LORD LOREBURN, L.C., in Clover Clavton and Company Ltd. v. Hughes 1910 A.C. 242, remarked that an accident had been

defined by the Houses of Lords in a previous decision as an unlooked for mishap or an untoward event which is not expected or designed. In that

case, the workman was suffering from serious aneurism and was employed in tightening a nut by a spanner when he suddenly fell down dead from

rupture of the aneurism. The County Court Judge found upon conflicting evidence that death was caused by strain arising out of the ordinary work

of the deceased operating upon a condition of body which was such as to render the strain fatal. The House of Lords held that there was evidence

to support the finding that it was a case of personal injury by accidents arising out of and in the course of the employment within the Workmen''s

Compensation Act, 1906. At p. 245 of the report, the learned LORD CHANCELLOR said that the workman died from the rupture of an

aneurism, and that the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which

was such as to render the strain fatal. The aneurism was in such an advanced condition that it might have burst even while the man was asleep, and

very slight exertion or strain would have been sufficient therefore to bring about a rupture. These were the findings of facts by the learned County

Council Judge and these findings of facts the learned Lord Chancellor considered binding. The question then arose whether on these findings the

learned trial Judge was entitled to regard the rupture as an ""accident"" within the meaning of the Act. The learned Lord Chancellor said that he was

so entitled.

The question whether the work of a workman contributed to the personal injury or not becomes difficult of determination where it is a case of

a heart attack. In such a case there are always two possibilities. A man with a bad heart might die in sleep or while he is actually resting. He may

also die with the slightest strain arising out of even ordinary work, not involving any out of the ordinary physical strain. Such a case arose in Whittle

v. Ebbw Vale Steel, Iron and Coal Company Ltd., 1936 (2) A.E.L.R. 1221. The deceased in that case was a grease boiler aged 61, and was at

the time of the accident suffering from heart disease. Notwithstanding his doctor''s advice, he insisted upon going to work. The evidence of the

doctor was that he might have died at any moment and any strain, even stooping, was prejudicial to him. He was seen about his work at 5-20 a.m.

and found, dead at 5-40 a.m. lying over a water tank, his face being covered with water. The post mortem examination showed that he died of

heart disease. Upon these facts, the County Court Judge held that the work upon which the deceased was engaged contributed to and accelerated

his death and made an award in favour of his dependents. The Appeal Court also held that the employment contributed to the death of the

deceased. It will be seen that in his case the cause of death was not known with certainty since there was no evidence as to how the deceased met

his death. The question therefore that arises in such a case is whether upon the known facts there is an equal degree of probability that death was

due to the employment or whether that was a more probable conclusion in the view of a reasonable man. In an earlier case in Lancester v.

Blockwell Colliery, Ltd., quoted by SLASSER, L.J., in this decision, LORD BIRKENHEAD, L.C., observed that if the facts which are proved

give rise to conflicting inference 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. In the

case of Whittle v. Ebbw Vale Steel, Iron and Coal Company, Ltd. 1936 (2) A.E.L.R. 1221 (supra) there was clear medical evidence that the

workman was not fit for a job involving continuous hard work; that he was a weak man by reason of his cardiac condition, that a man with a heart

like that might break down under any physical strain and that the work described would have a deleterious effect upon him. What impressed the

Appeal Court in that case was the fact that the workman was found dead within twenty minutes of the time when he would cease work and at the

place where he would normally and the last of the four times he had to go to the tank. The tank where he was found dead was the very place

where he would complete his work; the last process he had to do was to carry the grease to the tank to cool, and that was the place where he was

found. In other words, the fact that the man died within twenty minutes from the time that he would cease his work that day and the fact that he

was found dead at the place where he would go last before he ceased working that day were not only consistent with the conclusion but showed a

greater probability that he died as a result of strain from his work, than his having died purely by the effect of the disease he was suffering from.

GODDARD, J. (as he then was), stressed this principle at p. 1235 of the report where he observed:

the principle which I extract form the case of Patridge Jonas v. James 1933 A.C. 501 seems to me to be this : the House of Lords have decided

that where a man in a diseased condition dies, and it is found that the disease and the work together contributed to his death, then his death results

from accident within the meaning of the Act.

Similarly, in Hilton v. Billington & Newton, Ltd. 1936 (3) A.E.L.R. 292 it was held that the workman''s dependents were entitled to

compensation as the medical evidence clearly showed that it was the strain of the work that had contributed to or accelerated the death of the

workman concerned. The facts there were that on 21.2.1936, a cold day, a lorry driver strained himself by having to crank up his lorry at frequent

intervals. On 23 February he was found to be suffering from influenza. He returned to work on 16 March having recovered from influenza. He died

on 27 April. The evidence showed that the strain on 21 February was much more than the ordinary strain of work and that the lorry-driver was

continuously ill from the day of the strain to the day of his death. The lorry-driver had been suffering from heart disease of long standing and he

might have died from the effects of any sudden strain. One doctor said that death was due to the strain, another that excessive strain would have

shortended his life, and the lorry-driver''s own doctor stated that he had apparently well recovered ""but heart irregular - having impulse."" The

County Court Judge held that the medical evidence did not show that death had been caused by strain and dismissed the application for

compensation. The Appeal Court held that the County Court Judge had misunderstood the evidence of the doctor, when he thought that it meant

that the lorry-driver had recovered from the strain. It was held that the evidence meant that he had recovered from influenza but not from strain and

the appeal was allowed and an award in favour of the workman''s widow followed. This is yet another case where the medical evidence clearly

showed that it was the strain on the heart which the workman was subjected to on 21.2.1936 and which had contributed to his death.

(c) In United India Insurance Co. Vs. C.S. Gopalakrishnan and Another, the Kerala High Court held that

10......In Executive Engineer v. Janaki (1978) KLT 897, a Division Bench of this Court held thus (headnote):

Compensation can be awarded only if the accident arose in the course of and out of the employment of the workman and those conditions refer to

the time when the accident happened and the casual connection between the employment and the death. If the workman actually got ill in the

course of and on account of the employment and he died as a result of it, then there is no scope for controversy at all. The employer is bound to

give compensation. He is also bound to give compensation in cases where the workman had an illness already but the employment furnished a

contributory cause to his death or if the employment caused aggravation of the illness and accelerated his death. If it was a natural result of a

disease which the workman already had that he died and his employment did not furnish a contributory cause to his death or, if the employment

had really nothing to do with the aggravation of his disease and acceleration of his death, then it cannot be said that there was a casual connection

between his employment and subsequent death.

In (1933) AC 481, the House of Lords have considered the question where a dock labourer left his home soon after 5 a.m. apparently in

good health and felt unwell soon after reaching the dock where he was employed. At 6 a.m. he commenced work and was engaged with others in

loading and unloading bags of china clay and sugar. At 8.30 a.m. he had breakfast. He resumed work at 9 a.m.. The deceased man was intended

to move one of the bags on the platform. He was sitting on another bag at the time. He raised his hook above his head in order to lay hold on the

bag he wished to shift. Then he fell forward and died. The man suffered from heart disease, but the nature of the disease was uncertain. In

proceedings u/s 1 of the Workmen''s Compensation Act, 1925, by the widow and sole dependent of the deceased workman, the county Court

judge held that there was no sufficient evidence of an accident arising out of or in the course of the man''s employment; for that, any slight muscular

movement might have caused his death at any time, and that there was nothing fortuitous about it. The House of Lords held that on the evidence it

could not be doubted that the work the deceased man was doing contributed to his death; that when that was proved it established that the death

was due to an accident arising out of and in the course of his employment, unless the contrary was shown, and that, in applying as the test, the

question whether the death was to be expected at any time, the county Court judge had misdirected himself.

Lord Warrington, concurring with the judgment, put the proposition in a very simple style on two broad grounds. His Lord ship said ""All we

have to determine, or all the learned county Court judge had to determine, is whether the work in which the man was engaged this morning

contributed to his death."" Further, it is said that ""In my opinion, that is not enough: he ought to have considered the whole of the events of that

morning from the moment the man left home and went to his work and what happened during the continuance of that work."" In McFarlane v.

Hutton Brothers (Stevedores) Ltd. (1926) 96 LJKB 357 : 20 BWCC 222 and Muscroft v. Stewarts and Lloyds Ltd. (1928) 140 LT 64 : 21

BWCC 274, the case was one in which the workman suffered from heart disease and he died while he was working as a stevedore, unloading

from a ship. The county Court judge held that the death was due to disease and that it had not been caused due to sudden strain with the work he

was proceeding in the ordinary way and, therefore, there had been no accident such as entitled the dependant for compensation. It has to be noted

significantly that what the county Court judge emphasised was the fact that there was no sudden strain of the work that the workman was carrying

out in the ordinary way. But the Court of Appeal of England held that the county Court judge had misdirected himself and that to establish an

accident, it was not necessary to find a sudden or special strain and an award should be made in favour of the dependant, LORD HANWORTH,

M.R., at page 227, enunciated the law as follows:

...if there is an unexpected personal injury arising from some physiological condition set up in the course of the work, that may be described as an

accident even although there is, at the moment, nothing unusual or particular which sets it up. That is the basis of the principle or authority which we

have to apply.

A Full Bench of the Assam High Court in Assam Rlys. and Trading Co. v. Saraswati Devi AIR 1963 Ass 127, observed thus (at pages 133

and 134): 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.

Taking the evidence adduced in the case and the circumstances involved in the case, we feel that it has been established in the case that there

was a casual connection between the death of the deceased and the work done in the course of his employment. We are of the opinion that from

the evidence it is possible to infer that the strain of the work contributed to the fatal accident. Though the workman died due to heart failure, we are

certain that it is not necessary that the workman was actually working at the time of his death and that the death must occur while he was working

or had just ceased to work. Further, we find that the evidence shows a great probability which satisfies in a reasonable manner that the strenuous

work contributed to the fatal accident. This finding of the Commissioner is not unreasonable which requires interference by this Court.

(d) In Thengackal Estate Vs. Reethammal, , the Kerala High Court held that

Pleadings and the evidence in the case would clearly establish that Ramayya had some chest complaint and had suffered some chest pain in the

early hours of the morning on 1.7.1991 even before he went for the work. Admittedly, Ramayya, at the time when he fell down in the garden with

chest pain was doing work with a spade in discharge of his duties as a gardener employed by the appellant. It is also an admitted fact that on his

way to the hospital, he died on 1.7.1991 itself. The post-mortem certificate would show the cause of death as asphyxia resulting from heart attack.

These facts and circumstances, either admitted or proved by the oral and documentary evidence in the case, would in our view clearly establish

that but for the strain due to the work he was doing the unexpected death would not have occurred. We say so because it is the appellant''s own

case in the written statement that Ramayya had chest complaint and had chest pain in the early hours of the morning of 1.7.1991 even before he

went for the work. In the circumstances, it will only be reasonable to conclude that the strain even if it was a normal strain connected with the

employment was the reason for the death. Even proceeding on the basis that Ramayya was suffering from chest ailment and was prone to heart

attack, the circumstances in the case would clearly indicate that the strain due to the work he was doing was the cause which accelerated his death

due to heart attack. As such, in our view, the circumstances established in this case are sufficient to establish the required causal connection

between the death and the employment.

In United India Insurance Co. Vs. C.S. Gopalakrishnan and Another, , this Court, while dealing with the requirement of causal connection

between the employment and the death in order to bring the accident within Section 3 of the Act, has stated thus:

...It is not necessary that it should be established that the workman died as a result of exceptional strain or some exceptional work that he did on

the day in question. If the nature of the work and the hours of work caused great strain to the employee and that strain caused the unexpected

death, it can be said that the workman died as a result of an accident which has arisen in the course of his employment. Understanding the

expression ''accident'' as an ''unlooked for mishap'' or as a ''untoward event'' which is not expected or designed, we feel that in the state of health

which Ramayya was having at the relevant time, the employment as a gardener has at least accelerated his death or that his death was due not only

to the disease but the disease coupled with the employment and as such the death of Ramayya has arisen out of his employment. We find sufficient

support in taking the above view in the lucid exposition of law made by CHAGLA, C.J. in Laxmibai Atmaram v. Chairman and Trustees, Bombay

Port Trust, which reads thus:

...But, if the employment is a contributory cause, or if the employment has accelerated the death, or if it could be said that the death was due not

only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of

the employment of the deceased. We have no doubt in our mind that the work Ramayya was doing at the time when he suffered chest pain has

been a contributory cause of the death if not the sole cause. Same is the view taken in the following decisions dealing with more or less similar facts

and circumstances:

(1) Devshi Bhonji Kohnav v. Maty Bumo 1984 II LLJ 70.

(2) Executive Engineer v. Janaki 1978 KLI 897.

(3) Assam Rlys. and Trading Co. v. Saraswati Devi AIR 1963 Ass 127, and

(4) Zubeda Bano v. Maharashtra S.R.T. Corporation (1990) Lab. IC 1781.

In the Assam Rlys. and Trading Co. v. Saraswati Devi (supra) case, a Full Bench of the Assam High Court in detail considered all aspects about

death caused as a result of heart disease of employees while they were in the course of their employment. After a thorough analysis it has been held

thus;

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 into 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.

In Zubeda Bono v. Maharashtra S.R.T. Corporation (1990) Lab. IC 1781, a Division Bench of the Bombay High Court has held thus:

Heart injury when brought about by a strain due to work in the employment and (not by natural wear and tear) is compensable though pre-existing

condition may have been the contributory element and his is irrespective of the percentage of the part played by either of them, viz. the work and

the condition.

(e) In Depot Manager, APSRTC, Karimnagar Vs. Gurrapu Anjamma, the Andhra Pradesh High Court held that,

4......In support of his contentions, learned counsel for the respondents relied upon the following decisions:

Thengackal Estate v. Reethammal, 1996-II-LLJ-511;

National Insurance Company Ltd. Bangalore v. Balawwa, 1994-I-LLJ-433

United India Insurance Company Limited v. Yasodara Amma and Another, 1990-I-LLJ-387;

Abdul Sallar Rehmanbhai v. Julekhabi Rahiman Daryawardi and Others, 1989 LLR 289;

United India Insurance v. C.S. Gopalakrishnan and Another, 1989-II-LLJ-30; and

Zubeda Bano and Others v. S.R.T.C and Others, 1991-LLJ-I-66.

In Thengachal Estate v. Reethammal (supra) the Division Bench of Kerala High Court held thus:

Understanding the expression ''accident'' as an ''unlocked for mishap'' or as an ''untoward event'' which is not expected or designed, we feel that in

the state of health which Ramayya was having at the relevant time, the employment as a gardener has at least accelerated his death or that his death

was due not only to the disease but the disease couple with the employment and as such the death of Rantayya has arisen out of his employment.

We find sufficient support in taking the above view in the lucid exposition of law made by CHAGLA, C.J., in Laxmibai Atmaram v. Chairman and

Trustees, Bombay Port Trust (supra), which reads thus at page 616:

...But, if the employment is a contributory cause or if the employment has accelerated the death, or if it could be said that the death was due not

only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of

the employment of the deceased.

We have no doubt in our mind that the work Ramayya was doing at the time when he suffered chest pain has been a contributory cause of the

death if not the sole cause.....

In National Insurance Company Ltd Bangalore v. Balawwa (supra) the Division Bench of Karrataka High Court held as follows:

With regard to the first point, it is no doubt true that a claim for compensation for the death of an employee could be made u/s 3 read with Section

4 of the Workmen''s Compensation Act only if the death of that employee has occurred due to an injury sustained by accident out of and in the

course of his employment. By a series of Judicial pronouncements it is now well settled that the word ''accident'' should be taken to mean a mishap

or untoward event, not expected or designed; that if a person suffered heart attack and dies, it necessarily means that there has been an injury to

the heart and that, that event being a mishap not expected or designed, is an accident and that, if a workman suffers heart attack out of and in the

course of his employment, then the employer is liable to pay compensation u/s 3 read with Section 4 of the Workmen''s Compensation Act (See: J.

Mackinon Mackenzie and Co (P) Ltd v. Rita Fernanda, 1969-II-LLJ-812; Devshi Bhanji Khona v. Mary Burno, 1985-II-LLJ-70 (Kerala);

United India Insurance Company Ltd v. Yashodhara Amma, 1990-I-LLJ-387 (Kerala); Zubeda liana v. Maharashtra State Road Transport

Corporation, 1991 -I-LLJ-66 (Bombay). (Para 10)

In United India Insurance Company Limited v. Yasodara Amma and Another, reported in 1990-I-LLJ-387, in which a driver while driving the

vehicle developed heart attack and later on died and in those circumstances, the Division Bench of Kerala High Court held as follows:

From what we have quoted above, it is clear that the ''accident'' found in sub-section (1) of Section 3 has to be understood as meaning a mishap

or untoward event not expected or designed. Certainly, in this case, the mishap-the untoward event happened in the course of the employment of

the deceased at Perambra. As we said early, the symptoms of heart attack were seen and the deceased was taken to the hospital and finally he

succumbed to death. counsel submitted that these circumstances will not be sufficient to say that there was a personal injury which is one of the

necessary desiderata of Section 3(1) of the Act. We do not agree. An almost similar case was considered by a Division Bench of this Court in

Executive Engineer v. Janaki, 1978 KLT 897, NARAYANA PILLAI, J., speaking for the Division Bench, observed thus:

The principles applicable to cases of the instant type are by now well established. Compensation can be awarded only if the accident arose in the

course of and out of the employment of the workman and those conditions refer to the time when the accident happened and the casual connection

between the employment and the death. If the workman actually got ill in the course of and on account of the employment and he died as a result

of it then there is no scope for a controversy at all.

Here, in this case, there is no scope for a controversy that the workman actually got ill in the course of his employment. Of course, his illness

was not an external injury, but it was a serious injury to the heart. The strenuous driving of the vehicle from Icozhikode to Perambra accelerated his

illness and that resulted in the death of the claimant''s husband. We feel that the object of the Section is to give protection to the helpless

dependents of such workers and taking a pragmatic and meaningful construction of the Section, we fell that the Commissioner has rightly applied

the decision reported in Executive Engineer v. Janaki (supra). The decision rendered by the Commissioner is proper and legal. We see no error of

law involved in this appeal. This appeal deserves to be dismissed and we do so. No order as to costs.

In Abdul Sallar Rehmanbhai v. Julekhabi Rahiman Daryawardi and Others, reported in 1989 LLR 289, in which a Conductor died due to heart

attack while he was sleeping in the bus. The Division Bench of Bombay High Court held that if any employee while on duty dies of heart attack, the

employer will be liable for payment of compensation to his dependant. It is immaterial as to whether the employee was actually performing his

duties or not.

The Division Bench of Kerala High Court in United India Insurance v. C.S. Gopalakrishnan and Another (supra), reported in, after considering

a case where the deceased bus conductor died of heart attack while sleeping the vehicle after strenuous work, bus crew had to sleep in the vehicle

at the halting place where no shelter was provided either for the bus or for the crew and the bus conductor died of heart attack, held thus: (Para 9)

Though it is necessary that there should be a casual connection between the employment and the death in the unexpected way in order to bring the

accident within Section 3, it is not necessary that it should be established that the workman died as a result of exceptional strain or some

exceptional work that he did on the date in question. If the nature of the work and the hours of work caused great strain to the employee and that

strain caused the unexpected death, it can be said that the workman died as a result of an accident which has arisen in the course of his

employment.

After discussing various case laws in Para 17 of its judgment, it was further held thus:

...But, considering the circumstances proved in the case, it is only natural and probable to infer that the workman was put to great strain and stress

in discharging his duties. From the evidence discussed by the Commissioner, it is clear that the workman was asked to do work for more hours

than what he was statutorily bound to do.

In the light of the above discussion and decisions, this Court is of the view that no perversity can be attached to the finding of the

Commissioner for Workmen''s Compensation that the death has occurred, arising out of and during the course of employment and due to the

employment injury. Hence the finding is confirmed. There is no challenge to the quantum of compensation. The appeal is dismissed. No costs.

Consequently, the connected Miscellaneous Petition is closed. Consequent to the dismissal of the Civil Miscellaneous Appeal, 1st

respondent/claimant is permitted to withdraw the award amount, by making proper applications.