CORAMTHE HONOURABLE MR v. Tmt.L.Lakshmi2. Minor L.Nadhiya3. Minor L.Devi [R-2 & R-3 are

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 22-3-2007CORAMTHE HONOURABLE MR.JUSTICE K. VENKATARAMANC.M.A.No.517 of 2001andC.M.P.No.6682 of 20011. Thiru. Anjaya2. The New India Assurance Company Limited, 46, Moore Street, Chennai 600 001. .. Appellantsvs.1. Tmt.L.Lakshmi2. Minor L.Nadhiya3. Minor L.Devi [R-2 & R-3 are rep. by their mother the first respondent herein] .. RespondentsCivil Miscellaneous Appeal filed under Section 30 of theWorkmen's Compensation Act, 1923 against the order dated 4.9.2000 madein W.C. Case No.230 of 1999 on the file of the Commissioner forWorkmen's Compensation-I (Deputy Commissioner of Labour-I), Chennai.For Appellants : Mr.S.ManoharFor Respondents : Mr.A.ShanmugarajJUDGMENTThe opposite parties in W.C. Case No.230 of 1999 on the fileof the Commissioner for Workmen's Compensation (Deputy Commissioner ofLabour-I), Chennai are the appellants in this appeal. The claimantsthereon are the respondents herein.2. The respondents/claimants have preferred the claimapplication before the above referred Authority claiming compensationfor the death of one Lakshmaiah, husband of the first respondent andfather of the other respondents.3. The short facts of the matter which need to be stated forthe purpose of the present appeal is as follows:-The deceased Lakshmaiah was working as a auto driver under thefirst appellant herein. He was paid a sum of Rs.100/- as daily wagesfor the above said work. Usually, he used to drive the auto belonging https://hcservices.ecourts.gov.in/hcservices/ to the first appellant herein in day time between 7.00 A.M. and 7.00P.M. and after that, the said auto of the first appellant was used to bedriven by another auto driver from 7.00 P.M. to next day morning 7.00A.M. On 8.3.1998, the first appellant has instructed the saidLakshmaiah to drive the auto bearing registration No.TN-01-K-6393 tillthe next day morning as the other duty driver has informed him that heis not attending the night shift work on that date. As per theinstructions of the first appellant herein, the above said Lakshmaiahdrove the auto continuously and consequently, he died on the next daymorning (i.e.) 9.3.1998 due to heart attack during the course ofemployment at Vysarpadi. The respondents being the legal heirs of thedeceased filed the claim application before the Authority referred toabove. The first appellant being the owner of the vehicle has beenadded as the first opposite party and the second appellant being theinsurer has been made as the second opposite party in the said claimapplication.4. The said claim application has been resisted by the firstappellant herein by filing a counter stating that he did not ask thesaid Lakshmaiah to drive the vehicle. But, the vehicle has been takenby one of his friend who has entrusted the same to the said Lakshmaiah.The other statements made in the claim application have been denied bythe first appellant/first opposite party. The second appellant/secondopposite party being the insurer has filed a counter stating that sincethe first opposite party himself is a driver, he did not employ anybodyincluding the deceased to drive the vehicle. The other facts made inthe claim application has been disputed by the second appellant herein.However, the Authority as referred to above has held that the accidenttook place in the course of employment and that therespondents/claimants are entitled to a compensation of Rs.1,35,560/-.Challenging the said award, the opposite parties in the said claimapplication have preferred the present appeal.5. Mr.N.Manoharan, the learned counsel appearing for theappellants, contended that the death of Lakshmaiah was not out of and inthe course of employment and hence, no compensation need be payable bythe appellants. Further, it has been urged that there is no evidencethat the work performed by the deceased workmen was the reason for hischest pain and subsequent heart attack. Further, it has been urged thatthe deceased was not at all employed by the first appellant to run theauto. Thus, the sum and substance of the argument of the learnedcounsel for the appellants is that the appellants are not entitled topay any compensation.6. Per contra, the learned counsel appearing for therespondents contended that Lakshmaiah died during the course ofemployment and that the work performed by the Lakshmaiah is the reasonfor his heart attack. Since the death occurred in the course ofemployment, the appellants herein are liable to pay the compensation.Thus, the learned counsel for the respondents submitted that theAuthority has rightly held that the respondents are entitled tocompensation and allowed the claim application filed by the respondents https://hcservices.ecourts.gov.in/hcservices/ herein.7. I heard Mr.S.Manohar, the learned counsel appearing for theappellants and Mr.A.Shanmugaraj, the learned counsel appearing for therespondents.8. It is the specific case of the respondents in their claimapplication before the Authority referred to above that the firstappellant/first opposite party paid a sum of Rs.100/- as daily wages tothe deceased Lakshmaiah for working as auto driver. Further, the abovesaid Lakshmaiah used to drive the auto belonged to the first appellantin the day time between 7.00 A.M. and 7.00 P.M.. On 8.3.1998, the firstappellant has instructed the said Lakshmaiah to drive the auto till thenext day morning as the other driver informed that he did not attend thenight duty. As per the instructions of the first appellant, the saidLakshmaiah drove the auto continuously. Consequently, he died on thenext day morning (i.e.) 9.3.1998 at 7.00 A.M. by heart attack during thecourse of employment. Thus, it is the specific case of the respondentsin their claim application that in view of the continuous driving of theauto, he suffered heart attack during the course of employment. Thoughthis specific plea in the claim application has been denied by theappellants herein, the copy of the F.I.R. which has been lodged by oneS.Nagaraj clearly shows that on 9.3.1998, when he came out of hisresidence, he found that a person was lying in the auto itself and whenhe went near the said person, he found that he has already died. Thiswill clearly show that the deceased died when he was driving the auto.Ex.P-2 post-mortem certificate shows that the deceased died due to heartattack. Admittedly, the vehicle belonged to the first appellant and onthe fateful day, the deceased was driving the vehicle owned by the firstappellant. Hence, presumption can be drawn that the first appellant hasemployed the deceased to drive his auto and while doing so, in thecourse of employment, the said Lakshmaiah died. Further, it is thespecific case of the claimants/respondents that the said Laskhmaiah usedto drive the auto belonging to the first appellant in the day time andon the fateful day, since the other driver did not report for duty, thesaid Lakshmaiah has driven the auto even during the night time also. Ithas been further averred that since the Lakshmaiah drove the autocontinuously, he died on the next day by heart attack. It has to beseen that specific case has been put forth by the respondents herein bysaying that in view of the overwork, the said said Lakshmaiah got chestpain and later died.9. It is also not the case of the appellants that the deceasedhad previous history of heart attack. All the above aspects seem tohave been weighed in the mind of the Authority to come to the conclusionthat the respondents are entitled to compensation for the death of thesaid Lakshmaiah. Such reasoning, taking into consideration the pleathat has been raised in this regard, cannot be said to be based onsurmises and conjectures. It is not a case of absolute no evidence insupport of such conclusion. https://hcservices.ecourts.gov.in/hcservices/

10. Further, it has to be seen that the Authority came to theconclusion that the husband of the first respondent has suffered heartattack in the course of employment and is entitled for compensation.The said conclusion has been arrived at basing upon the materials onrecord and also basing on the plea that has been taken by therespondents. An appeal under Section 30 of the Workmen's CompensationAct will lie only if there is a substantial question of law. Thequestions of law that have been raised in this appeal are follows:- (1)Is the employer liable when the workman was notunder his employment, but under a different person, namelya friend of employer and whether such workman is a workman,in terms of Section 2(1)(n)(c) of the Workmen'sCompensation Act?(2) Is a death due to natural causes like heartattack, an accident within the meaning of 'arising out ofand in the course of' a contract of employment, as perSection 3 of the Workmen's Compensation Act, 1923?(3) Is heart attack to workman or heart failure orcoronary insufficiency are injuries and are accident withinthe meaning of Section 3 of the Act?11. Admittedly, these questions of law are more on factualaspects than on questions of law. Since it has been found by theAuthority that the first respondent's husband suffered heart attackduring the course of employment and entitled for compensation, the saidfinding arrived at by the Authority need not be set aside in thisappeal, if no substantial question of law arises. Even on facts, if Iam able to come to some conclusion opposite to the one taken by theAuthority under the Workmen's Compensation Act, still, the same cannotbe set aside, unless and otherwise some substantial question of law isinvolved. Therefore, I am of the considered view that what is raised inthe present appeal is the question of fact and not question of law. 12. In this connection, the learned counsel appearing for therespondents has cited the decision reported in 2007-1-L.W. 249(MANAGEMENT OF PACHAMALAI ESTATE, VALPARAI v. SMT. MANI) wherein aDivision Bench of this Court has held as follows:-"In the present case, however, the Commissioner for Workmen'sCompensation and the learned single Judge have come to theconclusion that because of the strenuous nature of the work,the workman suffered heart attack. This essentially is afinding of fact based on some material on record and itcannot be said that such finding is based on surmises andconjectures or there is absolutely no evidence in support ofsuch conclusion. An appeal under Section 30 of the WorkmenCompensation Act can be considered only if there is asubstantial question of law. Since, in the present case, theconclusion is based on some materials on record and the https://hcservices.ecourts.gov.in/hcservices/ Commissioner for Workmen Compensation and the learned SingleJudge have concurrently come to the factual conclusion thatthe death was on account of accident arising out of and inthe course of employment, we are not inclined to take anydifferent view of the matter."13. The learned counsel further relied on an unreporteddecision rendered by this Court in C.M.A.No.1332 of 1996 dated 8.2.2002wherein it has been held as follows:-"On the evidence available on record and in the light of theprinciples laid down in the decisions referred to above, ithas to be held that if the workman Selvam died of heartattack, there was a pre-existing heart condition which wasaggravated by the strain of the work of the deceased whichresulted in his death. In the instant case, theCommissioner for Workmen's Compensation has rightly heldthat the workman died of an injury arising out of and in thecourse of his employment. The order of the Commissioner forWorkmen's Compensation is unassailable."14. The learned counsel for the respondents relied on anotherdecision reported in Vol.102 F.J.R. 90 (T.SHANMUGA MUDALIAR v. TMT.NOOJAHAN) wherein the Division Bench of this Court has held as follows:-"There can be no dispute that the deceased died in thecourse of employment since there was no occasion for him tobe at the Tiruvannamalai bus stand unless he had beendriving the bus. It is futile to contend otherwise. Theevidence of the conductor of the same bus, who had seen thedeceased fall and die at the very spot where the bus hadstopped cannot be ignored. The objections to the claimbased on non-filing of the FIR or post-mortem report deserveno consideration. The claimants had pleaded overstrain ashaving contributed to the death. The accident, the unlookedfor mishap, had happened at a spot, where the deceased wouldnot have been but for the fact he was discharging his dutyas a driver. It is capable of being attributed to thestrain, ordinarily, inherent in the discharge of his duty.So the claim falls squarely within the Act."15. These judgments will clearly show that it may not bepossible at all times to produce direct evidence of the connectionbetween the employment and the injury, but if the probabilities are morein favour of the employee, then the Commissioner of Labour is justifiedin inferring that the accident did in fact arise out of and in thecourse of the employment.16. On the other hand, the learned counsel appearing for theappellant has cited the decision reported in 2007 I.L.R. 185 (SHAKUNTALACHANDRAKANT SHRESHTI v. PRABHAKAR MARUTI GARVALI AND ANOTHER) whereinthe Apex Court has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Unless evidence is brought on record to elaborate that thedeath by way of cardiac arrest has occurred because ofstress or strain, the Commissioner would not havejurisdiction to grant damages. In other words, the claimantwas bound to prove jurisdictional fact before theCommissioner. Unless such jurisdictional fats are found,the Commissioner will have no jurisdiction to pass an order.It is now well-settled that for arriving at a finding of ajurisdictional fact, reference to any precedent would not behelpful as a little deviation from the fact of a decidedcase or an additional fact may make a lot of difference byarriving at a correct conclusion. For the said purpose, thestatutory authority is required to pose unto himself theright question."17. In the same judgment, Their Lordships have held that theremust be a causal connection between the injury, the accident and thework done in the course of employment and that if the evidence broughton record establishes a greater probability which satisfies a reasonableman that the work contributed to the causing of the personal injury, itwould be enough for the workman to succeed. Thus, Their Lordships haveheld that for failure of heart because of stress and strain of work,compensation has to be awarded.18. The learned counsel appearing for the appellants citedanother decision reported in 2006 ACJ 2165 (JYOTHI ADEMMA v. PLANTENGINEER, NELLORE THERMAL STATION) and contended that the respondentsare not entitled to any compensation, But, I am unable to agree withthe learned counsel appearing for the appellants. Even in the saiddecision, it has been clearly held in para 6 as follows:-"Under Section 3(1) it has to be established that there wassome causal connection between the death of the workman andhis employment. If the workman dies a natural result of thedisease which he was suffering or while suffering from aparticular disease he died of that disease as a result ofwear and tear, of the employment no liability would be fixedupon the employer. But if the employment is a contributorycause or has accelerated the death, or if the death was duenot only to the disease but also the disease coupled with theemployment, then it can be said that death arose out of theemployment and the employer would be liable."19. Further, in the above case, it was on record that thedeceased was suffering from chest pain and the deceased was previouslytaking treatment for such disease, but in the case on hand, no such pleahas been taken by the appellants. Further, it has to be seen that inthe said judgment, Their Lordships of the Supreme Court have directedthat there shall be no recovery from the claimant of any amount paid.In the present case on hand, as discussed already, the deceased wasdriving the auto during morning hours and also during the night hours. https://hcservices.ecourts.gov.in/hcservices/ The strain would have caused acute chest pain which has resulted in hisdeath. The Authority has taken this fact into consideration whileawarding compensation. I am unable to take a different view and hence,I am constrained to confirm the order passed by the Authority.20. In the result, the order dated 4.9.2000 passed by theCommissioner for Workmen's Compensation-I (Deputy Commissioner ofLabour-I), Chennai made in W.C. case No.230 of 1999 is liable to beconfirmed and accordingly, confirmed. The Civil Miscellaneous Appealstands dismissed. Consequently, C.M.P.No.6682 of 2001 is closed. Nocosts.dppSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Commissioner for Workmen's Compensation-I (Deputy Commissioner of Labour-I), Chennai.2. The Section Officer, V.R.Section, High Court, Madras.+ One ;cc to Mr. S. Manohar Advocate sR 17760+ One cc to Mr.A.Shanmugaraj, Advocate sR 18173PPV (co)sg 14/5/07C.M.A.No.517 of 2001; &C.M.P.No.6682 of 2001 22-3-2007