IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 MFA.No. 160 of 2006() ------------------------------- WCC.38/1998 of COMMISSIONER FOR WORKMENS COMPEN SATION, KOLLAM .................... APPELLANT/ APPLICANTS 1 TO 4 ------------------ 1. SABOORA SAINUDHIN, KATTUNGAL HOUSE, ZACHARIA BAZAR WARD, ALAPPUZHA. 2. SAJEENA, -DO- -DO- 3. SABEEMA, -DO- -DO- 4. SANOOJA -DO- -DO- BY ADV. SRI.GEORGE SEBASTIAN SRI.P.K.SAJEEVAN (KANNUR) SMT.M.M.DEEPA RESPONDENTS: OPPOSITE PARTIES ----------------------- 1. THE MANAGER, FOOD CORPORATION OF INDIA, ALAPPUZHA. 2. THE SECRETARY, AMBALAPPUZHA TALUK HANDLING, LOADING HANDLING AND TRANSPORTING CO- OPERATI SOCIETY NO. A-751, NEAR KOCHUKADA BRIDGE, ALAPPUZHA. BY ADV. SMT.V.P.SEEMANDINI, SC, FCI THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & A.K.BASHEER, JJ. ------------------------------- M.F.A.NO.160 OF 2006 (B) ----------------------------------- Dated this the 17th day of March, 2008 J U D G M E N T KOSHY,J. Husband of the 1st appellant died untimely in the hospital on 24.1.1995. She along with children filed an application for compensation before the Commissioner for Workmen's Compensation contending that he was a worker in the Food Corporation of India godown and work was carried out through 2nd opposite party contractor, Ambalappuzha Taluk Loading Handling and Transporting Co-operative Society. While he was working on 20.1.1995 in the premises of the 1st opposite party for loading and unloading goods, he sustained chest pain. It has come out in evidence that he was carrying bags on his head and during that work, he felt chest pain and he collapsed on the premises and the co-employees had taken him to the hospital. He died on 24.1.1995. AW1 wife of the appellant deposed that he felt chest pain while carrying the load and he collapsed there itself. AW2 is a co-worker. He also deposed that he and deceased Sainudeen were working in the same place of employment and both are head load workers. On MFA.160/06 2 20.1.1995, while doing the work, Sainudeen felt chest pain and he was taken to the hospital and he died in the hospital. AW3 Enforcement Officer, Employees Provident Fund Organisation proved that deceased was a worker employed through contractor by F.C.I., the 1st opposite party in their premises and his Provident Fund number is 246. Therefore, it cannot be disputed that he was not a worker of the F.C.I. and Commissioner found that he was a workman. But the Doctor was not examined and only death certificate was produced. Even in the death certificate, only the factum of death was mentioned and cause of death was not mentioned. Now a copy of the medical certificate was produced before this Court as Annexure 1 A and 2 A which shows that Sainudeen was brought to the hospital at 4 p.m. with retrostenal chest pain which occurred at 2.30 p.m. on 20.1.1995 and he had features of suggestive Angina Pectoris. But on 24.1.1995, again he developed chest pain and expired due to Acute Mycardial Infraction on 24.1.1995. So he died due to heart attack on 24.1.1995. The fact that he felt chest pin during the course of employment while carrying headload work is proved by the evidence of AW2. The word 'accident' is not defined under the Workmen's Compensation Act. But the word 'accident' means MFA.160/06 3 any untoward incident without design not planned or intended by the workman (See Janaky Ammal and others v. Divisional Engineer, Highways Kozhikode (1956 (2) LLJ 233). A sudden heart attack during the course of employment is an untoward incident on the part of the workman that arose during the course of employment. The question is whether it is arising out of employment. To prove that it is arising out of employment, there should be some casual connection between the employment and the injuries concerned as held by the Apex Court in Mackinnon Machenzie and Co. (P) Ltd. v. Ibrahim Mahmmed Issak (1969 (2) SCC 607) and Jyothi Ademma v. Plant Engineer, Nellore and another (AIR 2006 SC 2830). Here AW2 has stated that while doing head load work, he felt chest pain and collapsed. There is material to disbelieve him. If there is a casual connection between the employment and the injuries, it can be stated that accident is arising out of employment. The Commissioner noticed that the opposite party contended that he was a heart patient and that was not seriously disputed by the applicant. Even if he was a heart patient and if that day's work accelerated the disease, there is casual connection with the employment. But there should be a finding that death by way of cardiac arrest has MFA.160/06 4 occurred due to strain in the work as held in Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and another (AIR 2007 SC 248). But Annexure 2 certificate was not produced and marked before the Court. Only a medical expert can say whether the nature of the work carried out by him which has accelerated the disease or it was a contributory cause leading to death. There is no evidence in this case to show whether death was due to the acute Mycardial Infraction and whether the accident accelerated his disease or death. Annexure 2 certificate was not proved. Hence we set aside the award and remand the matter for fresh consideration by the Commissioner. Both parties are allowed to adduce further evidence on the point. Parties may appear before the Commissioner on 26.5.2008. Since the accident occurred in 1995, Commissioner is directed to dispose of the matter as expeditiously as possible. Appeal allowed by way of remand. J.B.KOSHY, JUDGE A.K.BASHEER, JUDGE prp MFA.160/06 5 J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th March, 2008