HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.: 174 of 2004 Reserved on: 19.7.2010 Decided on: 28.7.2010 Oriental Insurance Company Ltd. ………Appellant. Versus Bimla Devi @ Bindu and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Ashwani K.Sharma, Advocate. For respondent No.2: Mr.Surinder Thakur, Advocate. V.K. Ahuja, J: This is an appeal filed by the appellant under Section 30 of the Workmen’s Compensation Act (hereinafter referred to as the Act) against the order dated 22.11.2003, passed by the learned Commissioner, Workmen’s Compensation, Nalagarh, vide which the claim petition filed by respondent No.1 Anto Devi (now deleted being dead) was allowed and the compensation amounting to Rs.3,63,965/- was awarded in favour of the claimants under Section 22 of the Act. 2. Briefly stated the facts of the case are that an application under Section 22 of the Act was filed by Smt.Anto Devi, widow of Pritam Singh and Kumari Bimla, minor daughter of about 4-1/2 years of deceased Pritam _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Singh through her mother and natural guardian Anto Devi. It was alleged that deceased Pritam Singh was the only bread earner of the family and was under the employment of respondent No.1 as a driver on truck bearing No.HP-12-3161 at a monthly salary of Rs.3,500/- plus Rs.50/- per day as diet money. It was alleged that on 3.8.2001, on the instructions of respondent No.1, the said truck was being driven by the deceased from Baddi to Manpura. The truck when reached near Toll Tax Barrier at about 5.30 p.m., suddenly the deceased felt chest pain and became senseless on his seat. One Bhagat Ram, driver of other truck, who was also travelling in that truck, took control of the truck and drove the same to CHC, Nalagarh for providing medical aid to Pritam Singh. The Medical Officer declared Pritam Singh dead on account of heart attack. Respondent No.1 was requested to make payment of compensation, but it was not made. Hence, the application was filed for grant of compensation under Section 22 of the Act. 3. Respondent No.1 in his reply denied that Pritam Singh was employed by him or had died during the course of employment. It was also denied that the deceased was getting any salary as claimed. Respondent No.2 Insurance Company (present appellant) pleaded that there was no relationship of employer and employee in between respondent No.1 and the deceased and as such, the petition was not maintainable. 4. On the pleadings of the parties, the following issues were settled by the learned Commissioner: - 3 - 1. Whether the deceased was a workman under the meaning of the Act under respondent No.1? OPA 2. Whether the deceased died during the course of his employment under respondent No.1? OPA 3. Whether the deceased was not having valid and effective driving license? OPR-2 4. Relief. 5. The parties led their evidence and the learned Commissioner vide its impugned order held that the deceased had completed the age of 30 years, his salary was held to be Rs.3500/- per month and applying the multiplier of age factor of 207.98, the compensation was assessed at Rs.3,63,965/-. An appeal has been preferred by the Insurance Company that the petition was not maintainable and as such the appeal deserves to be allowed. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the appellant were that there was no relationship of employer and employee in between the deceased and respondent No.1. The compensation awarded was in excess since the deceased had completed the age of 32 years and not 30 years and his income was assessed on higher side. The main point urged by the learned counsel for the appellant was that the death of the deceased had taken place due to heart attack, which cannot be said to be as a result of the accident and as such the petition under - 4 - Section 22 of the Act was not maintainable. It was also submitted that there has to be allegation in the petition that the deceased died because of heart attack due to stress of work and there was medical opinion also in this regard, which facts were not proved by the claimants and as such the appellant was not liable to pay the amount of compensation. To substantiate his submissions, the learned counsel for the appellant had relied upon the following decisions. 8. The decision in Jyothi Ademma versus Plant Engineer, Nellore and another, (2006) 5 Supreme Court Cases 513, was relied upon in which their Lordships have considered the words and phrases “accident”, “injury” and meaning given under the Act and finally it was concluded in para 8 as under: “8. In the present case it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded, the High Court’s judgment does not suffer from any infirmity.” 9. Reliance was also placed upon the decision in Shakuntala Chandrakant Shreshti versus Prabhakar Maruti Garvali and another, (2007)11 Supreme Court Cases 668. In that case, the deceased was working as a Cleaner in a vehicle belonging to respondent No.1. He was travelling in the said vehicle at night and suddenly developed chest - 5 - pain. He was admitted to a government hospital where the doctor declared him dead. It was not disputed that the incident had occurred while the deceased was performing his duties. The autopsy was conducted wherein the cause of death was opined as cardiac arrest due to rupture aortic aneurysm. No injury on his body was found. It was held by their Lordships that the injury suffered should be physiological injury. An accident may cause an internal injury. The observations made in paras 23 to 29 are relevant which are being reproduced below: “23. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or un-comprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed. 24. There is a crucial link between the casual connections of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction. 25. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. 26. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are: (1) Stress and strain arising during the course of employment, (2) nature of employment, (3) injury aggravated due to stress and strain. - 6 - 27. The deceased was travelling in a vehicle. The same by itself cannot give rise to an inference that the job was strenuous. 28. Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf.” 10. The decision in Malikarjuna G.Hiremath versus Branch Manager, Oriental Insurance Company Limited and another, (2009) 13 Supreme Court Cases 405, shows that the following observations were made by their Lordships: “It is the specific case of the claimants that on 30-11-2000 the deceased who was driving the vehicle on the direction of the insured had gone to a temple and was sitting on the steps of the pond in the temple and he slipped and fell into the water and died due to drowning. This is not sufficient in view of the settled legal principles to fasten liability on either the insurer or the insured. The High Court was not justified in holding that the present appellant was liable to pay compensation.” 11. On the other hand, the learned counsel for the respondent submitted that there was no substantial question of law involved. There is a finding of the Medical Officer that the deceased died due to heart failure and as such, the claimants were rightly held entitled to the grant of compensation. The learned counsel for the respondent relied upon the following decisions. 12. The decision in Union of India versus Kitabullah and another, 2005(1)T.A.C.41 (All.) was relied - 7 - upon in which the deceased died due to sudden jerk in train. The compensation amounting to Rs.2.00 lac was granted to the heirs of the deceased. The question involved was not under Section 22 of the Act, as in the present case. 13. The decision in Cement Corporation of India versus Commissioner under Workmen Compensation, 2006(3) Shim.L.C. 173, wherein the deceased suffered heart attack while he was on duty. There was evidence on record to show that the deceased suffered heart attack because of acute respiratory failure. There is also evidence on record that he was to pack the cement in gunny bags. Therefore, it can be said that the death of the workman was directly as a result of the work in which the deceased was deployed. 14. Another decision which was relied upon was in United India Insurance Company Ltd. versus C.S. Gopalakrishnan and another, 1989(1)T.A.C. 302, wherein it was observed that 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 dies as a result of an accident which has arisen in the course of his employment. 15. A perusal of Section 22 of the Act shows that two requirements of Section 22 of the Act are that the deceased had died in accident arising out of and in the course of his employment. Firstly, the death should have occurred as a result of the accident and secondly, it should have been during the course of his employment. - 8 - However, to prove such question, it has to be alleged and proved by the claimant that the deceased died as a result of the accident and that the death occurred during the course of his employment, for which allegations have to be made that the deceased had died due to stress and strain of the work and it was not due to any previous ailment of the deceased. The term accident has to be used as it is commonly used, which means an untoward mishap which is not expected or designed. Under Section 3(1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies a natural death because of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was not only due to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable. 16. It was also held in Shakuntala Chandrakant Shreshti’s case (supra) that there must be a casual connection between the injury and the accident and the work done in the course of employment. The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. If the evidence brought on record establishes a greater probability which satisfies a reasonable man that the work - 9 - contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. It was also held that there was a crucial link between the casual connection of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction. There must be some evidence that the employment contributed to the death of the deceased. It is required to be established that the death occurred during the course of employment. Therefore, it is clear that the claimant was held bound to prove jurisdictional factor before the Commissioner otherwise the Commissioner will have no jurisdiction to pass an order. 17. In so far as the substantial questions are concerned, three substantial questions are framed and the main substantial question of law is as to whether the petition filed by the claimants was maintainable and the order passed by the Commissioner was legally justified since the deceased died due to heart attack, which was not directly attributable to the injury by accident or in the course of employment. Thus, the appeal was rightly admitted on the above substantial question of law and, therefore, the appeal was maintainable. It has been held by the Apex Court in the above mentioned decisions that the facts have to be alleged and proved also that the stress of the work has caused the death of the deceased. The work of - 10 - the deceased was that of a driver and there is nothing on the record to show that due to the stress of the work, the deceased died, who, as a driver, was bound to drive a vehicle. The only evidence led is in regard to the death due to heart attack, but there were no specific allegations that it was due to stress and strain and the deceased was not suffering from any disease. These decisions were also considered by a learned Single Judge of this Court in Ram Dev Puri versus Trishla Devi and others, 2009(3) Shim.LC 198, in which a reference was made to the decisions of the Apex Court referred to above and it was held that there were no averments in the petition nor any evidence to show that the death of the deceased has any connection whatsoever with his employment. He may have died during the course of employment, but there is nothing on the record to show that the accident arose out of the employment or had any casual connection with the employment. In that case, the deceased was a driver of a truck and in the morning he complained stomachache when he was going as a driver and stopped on way. It was held that the claimants have not led any evidence to show that the death was caused due to stress or strain arising out of the course of employment or had any connection with the employment. Since these facts were not proved, the Workmen’s Commissioner had no jurisdiction to pass an award and as such it was held that the order of compensation directing the owner to pay the compensation was liable to be set aside. - 11 - 18. In view of the above discussion, it is clear that the deceased, though may have died during the course of employment, but there were neither any allegation nor any proof that he had died due to stress and strain of the work and in view of the above decisions, these facts have to be alleged and proved also, which were not done by the claimants and as such, the order passed by the Workmen’s Commissioner is liable to be set aside. In so far as the question of grant of excessive compensation is concerned, this question does not arise. 19. In view of the above discussion, the appeal filed by the appellant is allowed and the order passed by the Workmen’s Commissioner is set aside. However, the parties are left to bear their own costs. July 28, 2010 (V.K. Ahuja), (TILAK) Judge.