HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case A.O. No. 437 of 2007 Uttarakhand Transport Corporation and another Vs. Smt. Sarita Devi Approved for reporting Not Approved for reporting Date of Decision: 15-02-2008. Initial of Judge: HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 437 of 2007 1. Uttarakhand Transport Corporation through its Regional Manager, Dehradun 2. Service Manager, Uttarakhand Transport Corporation, Dehradun ..……….Appellant Versus Smt. Sarita Devi w/o late Nanak Das, 23, Bhandari Bagh, Block-II, Dehradun ………. Respondent Smt. Seema Sirohi, Advocate for the appellant Sri B. P.S. Mer, Advocate for the respondent. Dated: February 15, 2008 Hon’ble Rajesh Tandon, J. Heard Smt. Seema Sirohi counsel for the appellant and Sri B.P.S. Mer counsel for the respondent. Present appeal has been preferred against the judgment and award dated 24.7.2007 passed by the Commissioner Workmen’s Compensation and Regional Deputy Labour Commissioner, Uttarakhand, Dehradun in case No. W.C.A. 16 of 2005 Smt. Sarita Devi vs. Uttarakhand Transport Corporation and another. Briefly stated Smt. Sarita Devi respondent has moved an application under Workmen’s Compensation Act for grant of compensation on account of death of her husband Nanak Das. According to the applicant her husband Nanak Das was employed as Tinsmith in the establishment of the appellant Uttarakhand Transport Corporation. On 2.2.2005 he died by sudden cardio failure. Appellants filed reply and admitted that Nanak Das was employed as Tinsmith, who died on 2.2.2005 due to cardio respiratory failure. Deceased was addict of intoxication and he died due to his bad habits. The claimant examined Sri Indresh Kumar as P.W.1, Sri Sangram Singh as P.W.2 and Smt. Sarita as P.W.3. The claimant also filed documentary evidence, which consist death certificate, certificate of near relatives, date of birth certificate, and no dues certificate. On the basis of evidence on record the Tribunal has held that the deceased employee died on 2.2.2005 due to cardio respiratory failure while he was working in the workshop. The deceased was getting Rs.6,417/- per month as salary and he was 38 years of age at the time of his death. The Commissioner has awarded a sum of Rs.2000 x 189.56 = Rs.3,76,120/- to the claimant along with interest at the rate of 6% per annum. Feeling aggrieved the Uttarakhand Transport Corporation and its Service Manager has preferred the present appeal. Counsel for the appellant has urged that the deceased employee did not die due to nay accident, or any injury suffered by him during the course of his employment and the death was not covered by sub section (1) or (2) of section 3 of the Workmen’s Compensation Act, the deceased died due to cardio respiratory failure which cannot be attributed to his working condition, therefore, the claimant is not entitled to get any compensation under the Workmen’s Compensation Act. Section 3 of he Workmen’s Compensation Act provides for payment of compensation due to personal injury caused to a workman by accident, which reads as under: Employer’s liability for compensation.- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable – (a) In respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding 1[three] days; (b) In respect of nay 2[injury, not resulting in death 3[or permanent total disablement] cause by] an accident which is directly attributable to- (i) The workman having been at the time thereof under the influence of drink or drugs, or (ii) The willful disobedience of the workman to an order expressly given, or to a rule expressly trained, for the purpose of securing the safety of workmen, or (iii) The willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman. Admittedly, the death of Sri Nanak Das has not bee occurred due to any accident in the course of his employment. He died due to cardio respiratory failure while he was working in the workshop. Said cause of death is not covered under sub section (1) of section 3 of the Act, as quoted above, as thee is no injury to the deceased suffered in the accident. Sub section (2) of Section 3 of the Act provided as under: [(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as all occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six month (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as all occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts and disease specified therein as all occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is provided, the accident shall be deemed to have arisen out of, and in the course of, the employment [Provided that if it is proved,- (a) That a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule II has contorted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less that the period specified under this sub-section for that employment; and (b) That the disease has arisen out of and in the course of the employment, the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section: Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be all injury by accident within the meaning of this section.] [(2A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be all injury by accident within the meaning of this section, and such employment was user more than one employer, all such employers shall be liable for he payment of the compensation in such proportion as the Commissioner may, in the circumstance, deem just.] The claimant has utterly failed to prove that the death of the deceased workman was caused due to occupational disease peculiar to that employment. The claimant has also failed to adduce any evidence that cardiac arrest has occurred to the deceased employee due to stress and strain relating to his employment and working conditions. The Apex Court in the similar circumstances in the case Jyoti Ademma vs. Plant Engineer, Nellore and another, (2006)5 SCC 513 has held as under: Under Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease which eh was suffering or while suffering from a disease which he was suffering or while suffering from a particular disease he died 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 due not only to the disease but also the disease coupled with the employment, then it can e said that the death arose out of the employment and the employer would be liable. The expression “accident” means an untoward mishap which is not expected or designed. “Injury” means physiological injury. In Fenton v. Thorley & Co. Ltd.1 it was observed that the expression “accident” is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A.C. in Trim Joint District School Board of Management v. Kelly2 as follows: “I think that the contest shows that in using the word ‘designed’ Lord Macnaghten was referring to designed by the sufferer.” The Apex Court in Shakuntala Chanderkant Vs. Prabhakar Maruti 2006(4) ACC 769 (SC), has observed as under: “17. Before we analyze the provisions of the act, we may notice that in the complaint petition, there was no allegation that : (i) the deceased met with his death by reason of any strain of work; and (i) appellant had no personal knowledge as regards quantum of or nature of work required to be performed by the deceased; and (iii) as to how service strain during his services was caused. 21. This Court in E.S.I. Corporation (surp) referred to with approval the decision of Lord Wright in Dopver Navigation Co. Ltd. v. Isabella Craig [1940 AC 190], wherein it was held: “Nothing could be simpler than the words ‘arising out of and in the course of employment’. It is clear that there two conditions to be fulfilled. What arises ‘in the course of the employment’ is to be distinguished from what arises ‘out of the employment’. The former words relate to time conditioned by reference to the man’s service, the latter to casualty. Not every accident which occurs to a man during the time when he is on his employment-that is, directly or indirectly engaged on what he is employed to do-gives a claim to compensation, unless is also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.” 22. We are not oblivious that an accident may cause an internal injury as was held in Fenton (Pauper) v. J. Thorley & Co. Ltd., [1903 AC 443], by the Court of Appeal : “I come, therefore, to the conclusion that the expression “accident” is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.” Lord Lindley opined : “The word “accident: is nto a technical legal term with a clearly defied meaning. Speaking generally but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word “accident” is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events.” 23. There are a large number of English and American decisions, some of which have been taken not of in ESI Corporation (supra), in regard to essential ingredients for such findings and the tests attracting the provisions of Section 3 of the Act. 24. The principles are: (1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the person injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. 26. There is a crucial link between the causal 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. 28. The deceased was traveling in a vehicle. The same by itself cannot give rise to an inference that the job was strenuous. 29. Only because a person dies of heart attack, the same does not give rise to automatic p[resumption 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. 30. Circumstances must exist to establish that death ws caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefor can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has top be considered on is own fact and no hard and fast rule can be laid down therefor. 33. This Court in ESI corporation (supra0 was dealing with a case where the respondent met with an accident while he as on his way to his employment. The accident occurred at a place which was about 1 km. away from the factory. 35. The question recently has been considered by a Bench of this Court in Jyothi Ademma v. Plant Engineer, Nellore, [2006 (7) SCALE 28] where it was opined: “The expression “accident” means an untoward mishap which is not expected or designed. “Injury” means physiological injury. In Fenton v. Thorley & Co. Ltd. (1903) AC 448, it was observed that the expression “accident” is used in the popular and ordinary sese of the word as denoting an unlooked for mishap or an untoward even which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A.C. in Trim Joint District, School Board of Management v. Kelly (1914) AC 676 as follows: “I think that the context shows that in using the owrd “designed” Lord Macnaghten was referring to designed by the sufferer”. 36. learned counsel appearing on behalf of appellant seeks to distinguish this decision stating that therein the job of the workman was merely to ‘switch on an switch off’ and thus there has been no scope of stress and strain in his duties and that the workman had been suffering from heart disease. But in this case also job of a cleaner was not strenuous and in any even far less that of driver of the vehicle. 39. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found. The Commissioner will have no jurisdiction to pass an order. it is now well-settled that for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact f a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question.” A division bench of Uttarakhand High Court in the United India Insurance Company Ltd; vs. Kailash Chandra Pandey and others, 2007 (1) U.D. 571, after placing reliance on the cases of Shakuntala Chandrakant Shreshti vs. Prabhakar Maruti Garvali, 2007 AIR SC 248 and Jyothi Ademma (supra) has held that as no accident has taken place during the course of employment of the deceased and the deceased was not covered under Parts A or B of Schedule III of the Act and the deceased died a natural death, which was not because of the work done for the employer, the award of the Commissioner cannot be sustained. In the present case also the death of Sri Nanak Das was occurred due to cardiac failure, which disease is not attributed to the employment of the deceased workman neither there is any evidence on record to show that cardiac failure was due to stress or stain due to peculiar condition of the work being done by the deceased workman, therefore, the award passed by the Workmen’s Compensation Commissioner is liable to be set aside. However, considering that the deceased workman was the only bread- earner of the poor family, the Workmen’s Compensation Act is a public beneficiary legislation and the appellant is an undertaking of the State, therefore, it would be in the interest of justice that the amount awarded to the claimant shall not be withdrawn from her. Subject to the observations made above, appeal is allowed. No order as to costs. Dated: 15.2.2008 Rajesh Tandon, J. *Dhyani