IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 213 of 2005. Judgement reserved on: 28.4.2009. Date of decision: May 6, 2009. Smt. Pooma Devi ….. Appellant. Vs. Secretary, PWD (B& R) and ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Ms. Devyani Sharma, Advocate. For the Respondents : Mr. A.K.Bansal, Addl. Advocate General. Kuldip Singh, Judge. This appeal has been directed against the award dated 30.8.2004 passed by learned Land Acquisition Collector, HPPWD, South Zone, Winter Field, Shimla exercising the powers of Commissioner under the Workmen’s Compensation Act, 1923 passed in case No. 183(7)93. 2. The facts in brief are that appellant and her husband Ram Sagar on 28.2.1994 had filed a claim petition against respondents under the Workmen’s Compensation Act, 1923 (for short, the Act), claiming Rs.3,00,000/- compensation, interest and penalty on account of death of their son Gurbax Singh work-mistri (supervisor) on 9/10.7.1993 during the course of employment of Whether the reporters of the local papers may be allowed to see the Judgment? …2… respondents. He was earning Rs.1200/- per month wages and was about 31 years of age at the time of his death. 3. The further pleaded case is that on 9.7.1993 Gurbax Singh was on duty and at about 4.45 p.m., when he was supervising the work at sub-centre, Manpura, he suddenly had an attack and fell down on the ground, his brother Bhag Singh arranged the medicines and after taking medicines Gurbax Singh slept in the dispensary. On 10.7.1993 in the morning, Gurbax Singh did not get up and was found dead. Bhag Singh brother of the deceased had informed his parents and the dead body of Gurbax Singh was taken to Nalagarh hospital for post mortem, which was conducted on 10.7.1993. The rapat No. 19 dated 10.7.1993 was entered by the police on wrong version. Gurbax Singh had died during the course of employment of respondents No. 1 to 3. 4. The respondent No. 3 submitted para-wise reply to the petition, which is the only reply filed by the respondents in the petition. It was pleaded in that reply that deceased was earning Rs.38-40 per day, Gurbax Singh was on duty at sub –centre, Manpura till 5.00 p.m. It was denied that he had an attack at 4.45 p.m. He left the site at 5.00 p.m. The Chowkidar reported that Gurbax Singh came in drunken condition at about 10.00 p.m. and slept there in the Sub-centre building with the night Chowkidar and he was not on duty at that time. He died on 10.7.1993 in the early morning. The death of Gurbax Singh was natural and, therefore, respondents are not liable to pay any compensation. In rejoinder, the stand of the respondents was denied. The Commissioner dismissed …3… the petition on 6.5.2002 and the decision dated 6.5.2002 was assailed in RFA No. 411 of 2002, which was allowed by this court on 5.12.2002. The case was remanded to Commissioner with a direction to the Commissioner to decide the petition afresh after giving reasonable opportunity to the parties. It was also observed that Ram Sagar had died and claim petition shall be considered as having been filed by claimant Pooma Devi mother of the deceased. It was transpired that no issues were framed in the petition, therefore, the following issues were framed by the Commissioner on 25.2.2004:- (I ) What is the cause of death? OPP. (ii) Whether the personal injury arise out of and in the course of employment? OPP. (iii) Whether the Employer is responsible/ liable for payment of compensation? OPP. (iv) Relief. 5. On behalf of the claimant, statement was made by her counsel on 5.3.2004 that claimant has already led her evidence. In other words, the claimant did not lead any further evidence after the framing of issues. The evidence of the respondents was closed on 19.7.2004 and ultimately the claim petition was dismissed on 30.8.2004. In these circumstances, claimant Pooma Devi has come in appeal, which has been admitted on the following substantial questions of law:- 1. Whether the impugned order is the result of complete misreading, misinterpretation of Ext. P1, P2 and P3, i.e, report of chemical analysis and post mortem report. 2. Whether the learned Commissioner was right in rejecting the claim by misconstruing the provisions …4… of Section 3 sub-section (1) of the Workmen’s Compensation Act. 6. I have heard Ms. Devyani Sharma, learned counsel for the appellant and Mr. A.K. Bansal, learned Additional Advocate General for the respondents and have also gone through the record. Ms. Devyani Sharma has submitted that Commissioner has misconstrued, misinterpreted Section 3 of the Act, report of Chemical Analyst, post mortem report together with other evidence on record. It has been proved on record that deceased died during the course of employment of respondents, the deceased had an attack while he was on duty and later on he died. Even if it is assumed that he died later on after duty hours then it is a case of notional extension of employment coupled with the fact that duty of the deceased accelerated his death. The Commissioner has not properly appreciated the legal position. The learned Additional Advocate General has supported the impugned award. 7. The substantial questions of law No. 1 and 2 are interconnected, therefore, both of them are being taken up together for decision. Statements of AW 1/A Ram Sagar, AW II Bhag Siingh, AW III Gurbax Singh and AW 1/A of Bakshi Ram were recorded on 18.10.1997. Statement of Babu Ram was recorded on 18.6.2001. But statement of Babu Ram recorded on 18.6.2001 cannot be read in evidence as no opportunity to cross-examine Babu Ram was given to the opposite side, i.e. appellant. AW 1/A Ram Sagar father of the deceased Gurbax Singh has stated that his son Bhag Singh had told him that his another son Gurbax Singh had died on 10.7.1993 …5… morning during the course of employment. The date of birth of Gurbax Singh was 2.5.1962 as per copy Ex. PW 1/A, his post mortem report is Ex. PW 1/B. In cross-examination, he has stated that during night Bhag Singh brother of deceased was with him. AW 2 Bhag Singh brother of the deceased has stated that he and his deceased brother Gurbax Singh were working at sub-centre Manpura. At about 4.30 or 4.45 p.m., Gurbax Singh had an attack. He called Gurbax Singh, member Gram Panchayat, Manpura and after leaving him there he went to Manpura to bring medicines. He and his brother had stayed together during night. In the morning on 10.7.1993, he found his brother dead. He informed his father Ram Sagar. The Junior Engineer and S.D.O. of the department had reached the spot. The doctor from whom he brought the medicines had left Manpura. He died during the course of employment. 8. AW III Gurbax Singh, member Gram Panchayat, Manpura has stated that on 9.7.1993 at 4.30 or 4.45 p.m., Bhag Singh came and took him to sub-centre Manpura. He went to the doctor and when Bhag Singh came, the witness went to his residence. Babu Ram had duty in the sub-centre but instead his father Amru used to sleep there. The father of Babu Ram and Babu Ram were not on duty on that day. On 10.7.1993 police and department people came there. In cross examination, he has stated that medicines were brought from a doctor who belonged to Chandigarh but now he has left the practice. AW 1/A Bakshi Ram, Road Inspector has stated that on 10.7.1993 at about 9.00 am., Babu Ram, Chowkidar came to him at Bagwania. He told that Gurbax …6… Singh was sick. Babu Ram further told that Gurbax Singh had come to him on 9.7.1993 after 5.00 p.m. for sleeping. On account of illness, he was lying on the cot. Babu Ram requested the witness to see Gurbax Singh. The witness went to the spot and found Gurbax Singh lying unconscious. He was taken to Nalagarh hospital. He gave the information to S.D.O., Nalagarh. The doctor at Nalagarh declared Gurbax Singh as brought dead. In cross-examination, he has stated that he does not know whether on 9.7.1993 Gurbax Singh had taken liquor. 9. The Commissioner in the impugned award has referred post-mortem report Ex. PW 1/B, Chemical Analyst report Ex. P-1, Ex.P-2 and Ex. P-3. The impugned award is repetitive but the gist of conclusion of the Commissioner is that deceased had died natural death due to excessive intoxication and deceased had not died during the course of employment. It is the case of respondents that Babu Ram Chowkidar was on duty at Sub-centre on the relevant date and time. The respondents in their reply have admitted that Gurbax Singh was on duty on 9.7.1993 till 5.00 p.m. AW 2 Bhag Singh is the brother of the deceased and on 9.7.1993 he was working as Beldar at that place. He has stated that Gurbax Singh deceased had an attack at about 4.30 or 4.45 p.m. AW 1/A Bakshi Ram, Road Inspector has stated that Babu Ram Chowkidar came to him on 10.7.1993 and told that Gurbax Singh was lying sick. AW 1/A has not stated that Babu Ram had told him that deceased Gurbax Singh was under the influence of liquor. AW 1/A in his cross-examination has rather stated that he does not know whether Gurbax Singh on 9.7.1993 had taken …7… liquor or not. In case Gurbax Singh had taken liquor and his condition deteriorated due to liquor then it was natural for Babu Ram to disclose this material fact to AW 1/A Bakshi Ram, Road Inspector when Babu Ram met him on 10.7.1993. This leads to an inference that in fact Gurbax Singh had not taken liquor on 9.7.1993 as contended on behalf of the respondents. 10. AW III Gurbax Singh, member Gram Panchayat also came on the spot on 9.7.1993 when he was called by Bhag Singh brother of the deceased. This witness was not cross-examined on behalf of the respondents that deceased Gurbax Singh was under the influence of liquor when AW III visited him. Rapat No. 19 dated 10.7.1993 recorded at Police Post, Baddi is on the Commissioner’s file. In the claim petition, it has been pleaded that wrong version has been given in rapat No. 19, but the existence of rapat No. 19 has not been denied by either side. In rapat No. 19, it has been stated that deceased Gurbax Singh under the influence of liquor had come to health centre at about 3.00 O’clock and he laid down there on a cot. The rapat No. 19 read with reply of respondents has established that at about 3.00 p.m. on 9.7.1993 the deceased was on duty at health sub-centre. The rapat No. 19 has been recorded at the instance of SI/SHO Jagan Nath. 11. There are two post-mortem reports on the file of the Commissioner, one post mortem report has been exhibited as Ex.AW/1B and is at pages 46 to 49, which probably has been referred by the Commissioner as Ex. PW 1/B. On the other post mortem report, no exhibit mark has been put and is at pages 36 to 39 of the …8… Commissioner’s file. The report at pages 36 to 39 has not been proved. In post mortem report Ex. AW /1B, the date of death has been mentioned 9.7.1993 and examination of the body was conducted at 3.00 p.m. on 10.7.1993. The probable time that elapsed between injury and death has been mentioned instantaneous and between death and post mortem is 0 to 24 hours. 12. The doctor on 4.10.1993 appears to have scribbled extract of report of Chemical Examiner on the post mortem report which is at pages 36 to 39. This post mortem report has not been proved. In post mortem report Ex. AW/1B the extract of report of Chemical Examiner has not been mentioned. There is no mention of traces of liquor in post mortem report Ex. AW/1B. The findings of the Commissioner that the deceased had excessive intoxication, is based upon post mortem report at pages 36 to 39, which has not been proved. There is no other evidence on record that on the relevant date the deceased had taken excessive alcohol. No witness has stated taking of liquor by deceased Gurbax Singh on the relevant date. The statement of Babu Ram for want of cross-examination cannot be read in evidence against appellant. The post mortem report at page 36 to 39 at the most states traces of alcohol in Ex. P-1, Ex. P- 2 that does not mean that deceased was intoxicated. As per rapat No. 19 Gurbax Singh had come to Dispensary at about 3.00 p.m. It has been thus proved that Gurbax Singh was taken ill when he was on duty on 9.7.1993. 13. In General Superintendent, Talcher Thermal Station vs. Bijuli Naik, 1994 ACJ 1054, while considering the expression …9… “arising out of and in the course of employment”, it was held that the general principles are that (i) there must be a casual connection between the injury and the accident and the work done in the course of employment; (ii) the onus is upon the applicant to show that it was the work and the resulting strain which contributed to, or aggravated, the injury; (iii) it is not necessary that the workman must be actually working at the time of his death or that death must occur while he was working or had just ceased to work; and (iv) where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed. In Swarnalata Samal and others vs. Choudhury Kanduri Charan Das 1995 ACJ 957, the facts were that on 27.7.1987 Rasananda Samal was under the employment of respondent Bajrang Stone Crushing Plant at Chandheidhara, he suffered from reeling of head and fell down senseless. He was removed from the site to Jaipur Road Hospital and therefrom to S.C.B. Medical College Hospital where in the night of 28.7.1987, he expired. On those facts, it was held that Rasananda Samal died of an accident arising out and in the course of his employment and the appellants are entitled to compensation. 14. A Division Bench of Kerala High Court in Thengackal Estate vs. Reethammal 1996 (2) T.A.C. 93, where husband of first respondent while on duty on 1.7.1991 at about 11.30 a.m. felt chest pain and fell down and died on his way to the hospital, has held that Ramayya was having at the relevant time, the employment as a gardener has at least accelerated his death or that his death was due …10… not only to the disease but the disease coupled with the employment and as such the death of Ramayya has arisen out of his employment. 15. In Mackinnon Mackenzie and Co. Private Ltd. vs. Ibrahim Mahommad Issak AIR 1970 SC 1906, it has been held that there must be a casual relationship between the accident and the employment. In Saurashtra Salt Manufacturing Co. vs. Bai Valu Raja and others AIR 1958 SC 881, the workman while crossing the creek in a public ferry boat which capsized due to bad whether, was drowned, it was held that the accident could not be said to have arisen out of and in the course of the employment while crossing the creek inasmuch as the theory of notional extension could not extend to the point where the boat capsized. 16. In the present case, it has come on record that deceased Gurbax Singh was on duty on 9.7.1993 and he had an attack at about 3.00 p.m. while on duty, he was given medical aid by his brother Bhag Singh, but later on Gurbax Singh died. The claimant has led whatsoever evidence she could produce regarding the death of her son. The post mortem of deceased Gurbax Singh was conducted at 3.00 p.m. and the probable time of death was between 0 to 24 hours, it means Gurbax Singh died in between 3.00 p.m. on 9.7.1993 to 3.00 p.m. on 10.7.1993. Gurbax Singh was hale and hearty when he came on duty on 9.7.1993. Gurbax Singh suffered an attack while on duty and his duty aggravated his illness and thus accelerated his death even if it is assumed that he died after duty hours. In these circumstances, it can be safely inferred that Gurbax Singh died during the course of employment of respondents No. 1 to 3. …11… 17. The date of birth of deceased was 2.5.1962, as per his Matriculation examination certificate Ex. AW1/A. Thus at the time of his death Gurbax Singh was 31 years of age. The appellant being the mother of the deceased is entitled to compensation on account of death of Gurbax Singh under the Act. The respondents in their reply have taken the plea that deceased was being paid Rs.38.40 per day. The deceased was thus earning Rs.1152/- per month, who was 31 years of age at the time of his death, therefore, as per Schedule IV of the Act, the relevant factor applicable in the present case is 205.95. Gurbax Singh died in the accident on 9/10.7.1993, therefore, the provisions of Act as on date shall determine the compensation. As per explanation-II to sub clause (b) of clause-I to Section 4 of the Act at the relevant time there was cap of Rs.1000/- on wages of workman for assessing the compensation. The amount of compensation thus comes to 1000 x 40 x 205.95 = Rs.82,380. 100 18. The compensation fell due to the appellant on 9/10.7.1993 when Gurbax Singh died during the course of his employment with the respondents, under Section 4-A of the Act at that time, in default of payment of compensation within one month from the date it fell due the respondents were liable to pay simple interest at the rate of 6% per annum on the amount due together with further sum not exceeding 50% as penalty. The respondents, are, therefore, liable to pay interest to appellant at the rate of 6% per annum on Rs.82,380/- from 10.8.1993 till deposit/ payment. The respondents denied that accident took place during the course of …12… employment of Gurbax Singh with them. The defence of respondents was not found to be true. Therefore, in my opinion in the facts and circumstances of the case, the respondents are liable to pay 25% penalty on R.82,380/- amount of compensation, which comes to Rs.20,595/-. In case the penalty amount of Rs.20,595/- is not paid by the respondents within two months to appellant from the date of judgement, then the respondents shall be liable to pay interest at the rate of 9% per annum on the amount of penalty Rs.20,595/-, in addition to amount of compensation and interest as held above. The substantial questions of law No. 1 and 2 are accordingly answered in favour of the appellant and against the respondents. The impugned award is liable to be set-aside. 19. No other point was urged. 20. As a result of above discussion, the appeal is allowed, the award dated 30.8.2004 passed by learned Land Acquisition Collector, HPPWD, South Zone, Winter Field, Shimla exercising the powers of Commissioner under the Workmen’s Compensation Act, 1923, passed in case No. 183(7)93, is set-aside. The respondents shall pay Rs.82,380/- compensation to appellant alongwith 6% interest w.e.f. 10.8.1993 till deposit/ payment. The respondents No. 1 to 3 shall pay Rs.20,595/- on account of penalty to appellant within two months, failing which respondents shall further be liable to pay interest at the rate of 9% per annum on Rs.20,595/- till payment. No costs. May 6, 2009. ( Kuldip Singh ) (Hem) Judge.