IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 MFA.(WCC)No. 137 of 2006() --------------------- WCC.23/2003 of WORKMEN'S COMPENSATION COMMISSIONER, THIRUVANANTHAPURAM .................... APPELLANT(S): 2ND OPPOSITE PARTY, --------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, KOTARTHIL BUILDINGS, PALAYAM, THIRUVANANTHAPURAM, REP. BY ITS DEPUTY MANAGER. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENT(S): --------------- 1. SAMILA, W/O.LATE YOUSUFF,BISMI NAGAR, THUNDIVILAKAM PURAYIDAM, ATTAKULANGARA, TRIVANDRUM. 2. SHAHANA, (MINOR) D/O.LATE YUSUFF, BISMI NAGAR, THUNDIVILAKAM PURAYIDAM, ATTAKULANGARA, THIRUVANANTHAPURAM REP. BY HER GUARDIAN SHARMILA. 3. RAJESH CHANDRAN, TC.12/584, MAYA COTTAGE VADAYAKADU JUNCION, KUMARAPURAM, THIRUVANANHA- PURAM. ADV. SRI.TOMY SEBASTIAN FOR R1 SRI.SANTHAN V.NAIR FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20.11.2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.F.A.(W.C.C.) No.137 of 2006 -------------------------------------- Dated this the 20th day of November, 2008. JUDGMENT Koshy, J. Workmen's Compensation Commissioner awarded compensation for the death of the husband of the first respondent and father of the second respondent. Deceased was an autorickshaw driver by profession. On 19.11.2002 at bout 6 a.m. he took the autorickshaw from his house to the autorickshaw stand as usual, wearing his uniform. At about 8 a.m. that day he was found dead in the backseat of the autorickshaw. According to the claimants, they are entitled to compensation as the accident arose during the course of employment. Commissioner awarded compensation. Contention of the appellant-Insurance Company is that it is not proved that the death has any connection with the employment. Maximum what is proved is that death arose during the course of employment as he started from his house in the autorickshaw as usual and died during the course of employment. According to the Insurance Company, if he died due to heart attack during the course of employment, death is out of natural diseases and since there is no evidence on record to show that heart attack was on account of any strain of employment, it cannot be treated as an accident that arose out of employment. Learned counsel appearing for the appellant placed reliance on the decisions of the Apex MFA (WCC) No.137/2006 2 Court reported in Jyothi Ademma v. Plant Engineer, Nellore (2006 (3) KLT 426) and Shakuntala v. Prabhakar (2006 (4) KLT 1031) and contended that for getting eligible for workmen's compensation, workmen must have suffered personal injury during the course of employment and the accident must arise out of employment. 2. There is no discussion by the Commissioner whether the accident arose out of employment. There is some causal connection with the employment and death. That aspect has to be considered by the Commissioner. Hence, the case is remanded to the Workmen's Compensation Commissioner for deciding that aspect. Both sides are allowed to adduce evidence on that aspect alone. Parties shall appear before the Commissioner on 22.1.2009. Compensation amount awarded by the Commissioner was deposited by the Insurance Company That amount may be returned to the Insurance Company as the amount is lying without interest and on condition that they will deposit the amount, if necessary as per the revised order of the Commissioner. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks