Thangammal v. The ManagementOBLI Hospital342 A, Trichy Road,Gugai, Salem-6.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 16.07.2009Coram:THE HON'BLE MR. JUSTICE S.PALANIVELUC.M.A.No.2705 of 2004Thangammal ..AppellantvsThe ManagementOBLI Hospital342 A, Trichy Road,Gugai, Salem-6. ..Respondent Civil Miscellaneous Appeal against the order of the Dy.Commissioner of Labour, Salem, Authority under Workmen's compensationAct, 1923 dated 31.12.2002 in W.C.340 of 2000 (received by theAppellant on 16.1.2003 – original postal cover containing the date ofdespatch as 14.1.2003 by the office of the Dy. Commissioner of Labouris enclosed) For Appellant : Mr.K.M.Ramesh For Respondent : Mr.M.R.RaghavanJ U D G M E N TThe appeal is directed against the order of the Dy.Commissionerof Labaour, Salem, Authority under Workmen's compensation Act, 1923dated 31.12.2002 in W.C.340 of 2000 (received by the Appellant on16.1.2003 – original postal cover containing the date of despatch as14.1.2003 by the office of the Dy.Commissioner of Labour isenclosed). 2.In the claim petition, it is stated that from 1995 onwards oneRathinam daughter of the claimant was appointed as assistant in theopposite party's hospital. On 18.11.1998 at about 8.00 a.m. while shewas in the employment, getting down from steps, she fell down, gotswooned and she was entrusted to the claimant. On examination by thedoctor, it was learnt that she died. The opposite party authoritiesprevented the claimant from lodging any complaint in the policestation near, to take the body for post-mortem examination, paidRs.3000/- and send the corpse to Yercaud. The deceased was spinster.There is no dependent except the claimant to the deceased. She wasgetting a sum of Rs.1,600/- from the opposite party per month and https://hcservices.ecourts.gov.in/hcservices/ she was 18 years at the time of accident. The notice sent by theclaimant was refused by the opposite party. Hence, a sum ofRs.2,00,000/- alongwith interest is prayed for as compensation.3.In the counter filed by the opposite party, it is admittedthat she was employed as ayah in the hospital and that her last drawnsalary was Rs.1,600/- per month. It is not correct to state that shedied due to the fall from staircase. In fact, she was a tuberculosispatient and was taking treatment for long time. Only due to thedisease, she swooned and died. The claimant is not the dependent ofthe deceased. The claimant was living with her husband and lookingafter the family including the deceased. Her two sons are employed.She is not a dependent on the deceased. The opposite party hospitalis not covered under Schedule II of the Workmen’s Compensation Actwhich is not illustrative but inclusive. Since it is not a scheduledemployment, the claimant is not entitled for any claim under thisAct. The deceased suffered natural death and hence, the petition hasto be dismissed. 4.After considering the evidence on record, the authority belowdismissed the claim petition by stating that the deceased did not diein the course of and out of employment. Hence, the claimant haspreferred this appeal. At the time of admission of this appeal, thiscourt framed the following substantial question of law :'Whether the Authority was right in holdingthat the applicant is not entitled to reliefwhen the fact that the deceased was employedas Ayya in the hospital with a salary of Rs.1,600/- p.m. and that she died on 18.11.1998 as admitted by the respondent in the counter before the Authority.'5.As far as the plea of the respondent that the claimant beingthe mother of the deceased is not dependent of the deceased, thelearned counsel for the appellant would say that as per thedefinition in Section 2 (d) (iii) (b), a parent other than widowmother can also be a dependent on his or her son or daughter. Hence,there could be no doubt about the fact that the appellant could betreated as a dependent to the deceased. 6.In so far as the employment of the deceased under the oppositeparty is concerned, the matter is not much debate. The learnedcounsel for the respondent Mr. M.R. Raghavan would strenuouslycontend that since she was found suffering from Tuberculosis whileshe was under employment, her services were terminated w.e.f July1998 and afterwards she did not attend to the duty and hence she wasnot under employment of the opposite party after July 1998. Toestablish this aspect, respondent has produced attendance registerfor the years 1997 and 1998. https://hcservices.ecourts.gov.in/hcservices/

7.Per contra, it is stated that in the employees roll upto July1998, the name of the deceased Rathinam is found in the register butfrom August 1998 onwards her name does not find place for any of theensuing months. It is pertinent to note that the attendance registerfor the year 1998 was inspected, that is to say, seen by the labourinspector on 24.09.1998 and signed by him. Hence some importance hasto be attached to this document and there is no wrong in observingthat the attendance registers are genuine and they are beingmaintained regularly in the course of employment. 8.As per the learned counsel for the respondent, there are ampleevidence from the doctors who are in service in the opposite partyhospital itself. Three Doctors have been examined as R.W.1 to R.W.3.R.W.1 has stated that the deceased was admitted to the hospital on06.10.1997 for Tuberculosis that she vomited blood and since herhealth was in a critical condition, she was referred to Governmenthospital. The R.W.2 has deposed that he treated Rathinam for herTuberculosis and while she was coughing, she emitted blood and bloodpressure was also low and that he is of the opinion that she mighthave died of tuberculosis. R.W.3 doctor also endorsed the opinion ofR.W.1 and R.W.2 by stating that during 1998 and 1999, the deceasedused to come to his clinic for consultation and that she was notcommanding good health from beginning. 9.It appears that R.W.3 Doctor has not served in the oppositeparty hospital and he is an independent witness. While thecumulative effect of evidence of R.W.1 to R.W.3 are carefullyscrutinized, there is nothing to smell rat in their oral accounts andthis court places reliance upon them. 10.The learned counsel for the appellant Mr.K.M.Ramesh woulddraw attention of this court to a decision of this court reported in1982 II L.L.J, Page 149, Sri Jayaram Motor Service and Pitchammal,wherein this court after referring to a judgment of the AndhraPradesh High Court has laid down the principle, under whatcircumstances a claim of the employee could be considered. Therelevant portion of the judgment goes thus. 'The next question to be considered is whether therespondent's husband met with his death in the course of theemployment and out of the employment. It is laid down inthe case reported in Chhotulal v.Hamaram, (1969) A.C.J. 346,that it is incumbent upon the Commissioner to be clear inhis finding in respect of the question whether the accidentarose out of and in the course of his employment. Thequestion that the accident arose out of employment dependsupon the facts of each particular case. One test fordetermining this is whether it was a part of the injuredperson's employment to hazard, to suffer, or to do thatwhich caused the injury. In the course of the judgment the https://hcservices.ecourts.gov.in/hcservices/ following principles enunciated in Kondisetti AnjiahV.T.Lakshmiah (A.I.R. 1969 A.P. 15) are quoted withapproval:"It is enough if it is established that :(1) at the time of the accident he was in fact employedon the duties of his employment; (2) that it occurred at theplace where he was performing those-duties; and (3) that theimmediate act which led to the accident is not so remotefrom the sphere of his duties as to be regarded assomethingforeign to them."In order to entitle a workman for compensation there must bea casual relationship between the cause of death and hisemployment. On a study of the above decisions it is evidentthat a workman died even after leaving the work as a resultof stress and strain which he suffered earlier during theperiod of work a connection is established between theemployment and his death.11.He also places reliance of a Division Bench of Bombay HighCourt in A.I.R. 1954 Bombay 180, Vol.41, C.N.49) in which it is heldas under :'(d) Workmen's Compensation Act (1923), S.3 – Accidentarising out of the employment. If the workman dies as a natural result of the diseasefrom which he was suffering, then it could not be saidthat his death was caused out of his employment. It aworkman is suffering from a particular case and as aresult of wear and tear of his employment he dies ofthat disease, no liability would be fixed upon theemployer. But if the employment is a contributory causeor if the employment has accelerated the death, or if itcould be said that the death was due not only to thedisease coupled with the employment, then the employerwould be liable and it could be said that the deatharose out of the employment of the deceased. Case lawreferred.' 12.By means of establishing a fact that the deceased was not inthe employment from July 1998 and that she was suffering from severetuberculosis during the relevant period, this court is of theconsidered view that the claimant is not entitled for thecompensation. It is cardinal principle that there shall be a nexusand a casual connection between the employment and the employmentinjury and in the absence of such factor, there could be noconsideration for grant of compensation. https://hcservices.ecourts.gov.in/hcservices/

13.As adverted to supra, sine there is no connection betweenthe alleged employment and employment injury,and she was not at allunder employment with the opposite party, the respondent is notliable to pay compensation and in this regard, this court finds noground to interfere with the findings and decisions of theCommissioner which deserves to be confirmed and it is accordinglyconfirmed. 14. The Civil Miscellaneous Appeal is dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrgrTo The Dy. Commissioner of Labour, Salem.Copy to:The Section Officer,V.R. Section,High Court, Madras.+ 1 c.c. to Mr. S. Vaidyanathan, Advocate. S.R.No.32133.+ 1 c.c. to Mr. Raghavan, Advocate. S.R.No.31209.C.M.A.No.2705 OF 2004MBS (CO)GSK 01.09.2009.