FA/505920/2008 1/37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5059 of 2008 With CIVIL APPLICATION No. 12414 of 2008 In FIRST APPEAL No. 5059 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? YES 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= BHAVNAGAR MUNICIPAL CORPORATION THROUGH - Appellant(s) Versus BHANUBEN MAGANBHAI HAVALIA WD/O MAGANBHAI H. HAVALIA - Defendant(s) ========================================================= Appearance : MR HS MUNSHAW for Appellant(s) : 1, MR KISHOR M PAUL for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 19/11/2008 ORAL JUDGMENT FA/505920/2008 2/37 JUDGMENT 1. Heard learned Advocate Mr. HS Munshaw for the appellant Bhavnagar Municipal Corporation and learned Advocate Mr. Kishor M. Paul for respondent claimant. 2. Through this appeal, appellant Corporation has challenged order passed by Workmen's Compensation Commissioner Bhavnagar Exh. 38 in WC (Fatal)Case NO.4 of 2005 dated 28.8.2008 wherein Commissioner has granted compensation of Rs.2,99,559.00 in favour of claimant with simple interest thereon at the rate of 9 per cent per annum from 22.9.2004 and also to pay amount of penalty at the rate of 25 per cent of Rs.74,890.00 to applicant within thirty days from the date of order. 3. Facts of case of applicant were to the effect that husband of applicant Maganbhai Havalia was serving as permanent Safai Kamdar in establishment of appellant in Conservancy Department. Claimant is also performing duty as Safai Kamdar in the appellant establishment. After getting the presence marked, claimant was going in district allotted for safai work. After the sweeping work of an hour, for taking the garbage through tractor, workmen from the conservancy department would come and in this manner work has to be done. After the tractor driver and safai kamdars came , presence was to be marked and after garbage is collected, till sent for duty, safai kamdars those who have reached have to remain present in the conservancy centre of Bhavnagar Municipal Corporation. Husband of the claimant Maganbhai Harjibhai Havalia was working as permanent safai Kamdar in the establishment of appellant. His period of duty was from 6.30 a.m. To 1.30 p.m. On 22.9.2004, claimant and her husband both had gone for FA/505920/2008 3/37 JUDGMENT duty at 6.00 a.m. Claimant was having duty to serve in the District and, therefore, after getting her presence marked, she had gone for performing her duty whereas husband of claimant was waiting for collection of garbage in Ward Office near Garasia Boarding. This being the arrangement, before the presence of husband of claimant could be marked, in view of sudden chest pain, he sat down. Fact was brought to the notice of other safai kamdars working in conservancy. Husband of claimant was immediately brought to their house in rickshaw and thereafter, ambulance was called and he was shifted in Government hospital for treatment where he died due to heart attack. Based upon aforesaid facts, since her husband died while he had gone for performing duty from home and before he is sent for work after getting his presence marked, he received heart attack and expired and in this manner, accident had taken place while resuming duty and, therefore, aforesaid WC (Fatal) Case was filed. At the time of accident, age of the deceased was 47 years, salary was Rs.4674.00 and at the rate of factor 169.74, prayer was made for compensation of Rs. 3,11,240.00 with interest and penalty from appellant corporation. Learned Commissioner granted compensation of Rs. 2,99,559.00 with interest thereon at 9 per cent per annum from date of accident and penalty at the rate of 25 per cent as stated above against which this appeal has been filed by appellant corporation. 4. Learned Advocate Mr. HS Munshaw for appellant submitted that deceased was not on duty at the time of alleged accident and nature of duty of deceased has nothing to do with his illness and cause of death. He submitted that the Commissioner should have held that deceased expired before FA/505920/2008 4/37 JUDGMENT joining duty. Relying upon judgment of apex court in Civil Appeal No. 6201 of 2004 dated 11.7.2006 reported in 2006-III CLR page 438, in case of Jyothi Ademma v. Plant Engineer, Nellore & Anr., he submitted that only if the employment is contributory cause or accelerated death, then only it can be said to be death arose from employment and employer is liable to pay compensation but in this case, none of said ingredients were available to death cause of deceased and, therefore, compensation ought not to have been awarded by learned Commissioner. He further submitted that as the deceased had not resumed duty and had passed away much prior to that due to heat attack, there cannot be any compensation under the Act. He submitted that deceased was having habit of smoking bidi. He relied on the deposition of the witness for claimant at Exh. 27 wherein it was deposed in examination in chief that the witness knows that Maganbhai Harjibhai has died. When Maganbhai died, at that time, witness was on duty. At that time, deceased had pain and deceased were taking tea at the office. In view of pain to deceased, other two to three persons had gone to leave him at home and witness had gone for work. Drawing attention to that part of evidence of witness for claimant, he submitted that before joining duty, deceased had expired and on 22.9.2004, deceased was not at all present on duty. He relied upon decision of Karnataka High Court in case of Divisional Controller, North West Karnataka Road Transport Corporation and another v. Drakshayani and others reported in 2006 ACJ 931 as well as apex court decision in case of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and another reported in 2007 ACJ 1 in support of his submissions. He also submitted that Commissioner has committed an error in imposing penalty at the rate of 25 per FA/505920/2008 5/37 JUDGMENT cent under section 4A of the Act. Except these submissions, no other submission was made by learned Advocate Mr.HS Munshaw before this Court. 5. As against that, learned Advocate Mr.Paul appearing for respondent claimant has submitted that appellant has not raised any substantial question of law as per sec. 30 of the Act and, therefore, appeal is not maintainable. He submitted that deceased was waiting for tractor at 6.30 a.m. For collection of garbage and duty as a sweeper to collect garbage and it was an accident arising out of and in the course of employment and job of deceased was involving stress and strain and, therefore, learned Commissioner has rightly granted compensation in favour of respondent claimant. He also submitted that deceased had gone from home for performing duty and before he could be sent for duty after marking his presence, he received heart attack and died and, therefore, learned Commissioner has rightly granted compensation to claimant and has rightly imposed penalty since no compensation was immediately paid by appellant to respondent claimant. 6. I have considered submissions made by learned advocates for both sides. I have also perused impugned order passed by learned Commissioner under the WC Act. Issues were famed by learned Commissioner under the WC Act at Exh. 9 and Commissioner answered issue no.1 in affirmative by holding that there was relationship of workman and employer between deceased and opponent. Issue No.2 was answered in affirmative by holding that deceased died while on duty and based upon such findings, awarded compensation. Relationship of workman and employer was not denied by appellant before FA/505920/2008 6/37 JUDGMENT the learned Commissioner. Learned Commissioner under the Workmen's Compensation Act also held that deceased has died while on duty and held that at the time of accident, age of the deceased was 47 years and monthly salary was Rs.3674.00 and, therefore, entitled for compensation of Rs.2,99,559.00 with interest thereon at the rate of 9 per cent per annum from the date of accident with 25 per cent penalty on the amount of compensation which is under challenge in this appeal. 7. Before the learned Commissioner under the WC Act, vide Exh. 12, affidavit of respondent claimant Bhanuben Maganbhai was filed and vide Exh. 13, list of documents was produced, wherein, vide Exh. 14, death certificate of deceased was produced. Vide Exh. 15, pay slip of deceased for the last month September, 2004 was produced. PM Report of deceased is produced at Exh. 16. Vide Exh. 18, notice issued by claimant to appellant for payment of compensation is produced and vide Exh. 19, acknowledgment thereof is produced. 8. Before the Commissioner under WC Act, vide Exh. 11, list of documents was produced on behalf of appellant wherein service book of deceased is produced at Exh.23. Vide Exh. 24, copy of presence statement for Sept. 2004 has been produced. Vide Exh.25, copy of muster for September, 2004 has been produced. Vide Exh. 29, affidavit of Himatbhai M. Parmar working in appellant establishment is filed and vide Exh. 30, it was declared that evidence has been over. 9. Commissioner under the WC Act has considered the cross examination of the witness for appellant establishment at Exh. 29 and held that from his cross examination, it is established FA/505920/2008 7/37 JUDGMENT that the deceased was performing duties as permanent safai kamdar in conservancy department of appellant establishment. His duty was commencing from 6.30 a.m. And his presence was being marked in conservancy department and as per the practice of the appellant establishment, those workmen who are resuming, after getting their presence marked, they are being sent by appellant establishment at the respective place when driver of tractor comes with tractor and in this manner, first of all, presence is being marked. In this manner, present claimant and her husband i.e. Deceased had appeared in the office of the appellant establishment for getting presence marked at 6.30 a.m. where respondent claimant had, after marking her presence, gone for her duty of safai work whereas the husband of respondent claimant i.e. Deceased had to wait for tractor coming for loading of garbage collected. Presence of such workmen was being marked subsequently, therefore, deceased Maganbhai was sitting near conservancy department where he realized chest pain and was then taken to his home in rickshaw and then from home, he was shifted to Sir T. Hospital where he expired. Thus, from the cross examination of the witness for appellant at Exh. 29, it has become clear that deceased was permanent safai kamdar of appellant establishment and he had been near the office of conservancy department waiting for tractor and yet his presence was not marked but had in fact resumed physically. For proving that deceased Maganbhai was present in Conservancy Department, affidavit Exh. 12 has also been produced on behalf of claimant and co-worker Sitarambhai who was performing duty with deceased was examined on oath at Exh. 27 and documentary evidence supporting facts stated by said two witnesses was also produced. No evidence was produced by appellant FA/505920/2008 8/37 JUDGMENT establishment controverting those facts. Deceased was having duty to collect garbage from city and to load same in tractor and then to unload same elsewhere and in this duty, due to physical stress and strain in performing such duty, deceased had heart attack while on duty which has been established as has been held by Commissioner. In light of these facts, Commissioner considered decision of the Division Bench of this Court in LPA NO. 172 of 1971 in case of Dudhiben Dharamshibhai and others and New Jehangir VakilMills Ltd., Bhavnagar wherein worker was standing 10 ft. away from entry gate five minutes earlier before starting of shift and workman was fatally knocked down. Question arising in light of those facts was whether dependent entitled to get compensation and whether fatal accident arose in the course of employment. Whether theory of notional extension of employment is applicable or not was considered by Division Bench of this Court and it was held that in the facts and circumstances, employer is liable as both conditions “arising out of employment laid down in s. 3(1) of the Act had been fulfilled. 10. Commissioner also considered another decision of the Division Bench of this Court in case of New India Assurance Co. Ltd. v. Jivram Jetha Bambhania (deceased) through his heirs Gitaben and others where an employer was going to the residence of employee and taking employee on his vehicle and proceeding towards the work place but on way, accident had taken place and it was held that the law would hold that the accident took place in the course of employment. 11. Commissioner also considered decision of this court in Deviben Dudabhai v. Manager, Liberty Talkies, Porbandar FA/505920/2008 9/37 JUDGMENT and another reported in 1994 Lab IC 2570 as under: “(A) Workmen's Compensation Act (8 of 1923), S. 3 – Compensation-claim for Death of a workman due to heart attack – Sudden manifestation of heart condition from the effect of strain or over exertion at work – constitutes an accidental injury within meaning of the Act. Where the deceased workman, a door keeper in theater worked for 15 hrs. a day except for a lunch break of an hour for a long spell of 15 years and died of heart attack and there was pre-existing disease of tuberculosis which was accelerated and aggravated by the strain and extension of the work, which the deceased was doing and had culminated in his health and the evidence on record proved the fact that he was doing work of two persons, it could be said that the failure of heart had a direct nexus with the employment. Therefore, it could be said that the injury sustained by the deceased had arisen out of and in the course of his employment and it was compensable in accordance with the provisions of S.3. [Para 9, 25, 27] (B) Workmen's Compensation Act (8 of 1923), S.3 – Compensation – Claim for, by widow of deceased – Death of a workman due to heart attack in course of employment – Death need not be in factory or industrial premises. FA/505920/2008 10/37 JUDGMENT Workmen's Compensation – Death of a workman due to heart attack in course of employment – Death need not be in factory or industrial premises. It is not mandatory that the death due to injury should result only in the factory or the industrial premises. It is also not necessary that the death should be the result of one accident. The workman may be suffering gradually due to working the employment and if the cumulative effect of slight injuries is death, then also such an injury is compensable. In the instant case personal injury was suffered, it was no less accidental because it occurred on a series of occasion instead of one. Therefore, in such a situation the employer would be liable to pay the compensation; as such an injury was caused to the workman by the accident which arose out of and in the course of an employment. [Para 30] (C) Workmen's Compensation Act (8 of 1923), Ss.4,7,8,17, 28 – compensation – Claim for by widow of deceased – Default in payment on part of employer – Plea of settlement between employer and heirs of deceased – Not supported by an affidavit. - No particulars of alleged settlement stated by employer – No reasonable explanation given as to why alleged settlement was not brought to the notice of Court – Non compliance with FA/505920/2008 11/37 JUDGMENT provisions of Ss. 8, 17, 28 – Claimants are entitled to an amount of compensation awarded plus Rs.8400/- by way of 50 per cent penalty with interest at rate of 6%. Workmen's Compensation – Claim for, by widow of deceased – Default in payment on part of employer – Plea of settlement between employment and heirs of deceased.” 12. Thereafter, Commissioner under the WC Act also considered decision of this Court in case o Oriental Fire and General Ins. Co. Ltd. v. Sunderbai Ramji and another reported in 1992 Lab IC 1020 as under: “(A) Workmen's Compensation Act (8 of 1923), S.3 - Compensation – Entitlement - Accident arising out of and in the course of employment – Factors which must be established. In order to succeed in a compensation application under S.3 of the Act, three following factors must be established. (i) that there must be an injury; (ii) that it should be caused in an accident; and (iii) it should be caused in the course of employment. (B) Workmen's Compensation Act (i of 1923) S. 3 – Words “Accident and Injury” - Meaning FA/505920/2008 12/37 JUDGMENT of Heart attack suffered by worker doing labourious work – Injury was a nexus with employment – Employer liable to pay compensation. Words and Phrases – Words “Accident and Injury” in Workmen's Compensation Act – Meaning of. The expression “accident” has not been defined in the Act. However, Law Lexicon states the word “accident” generally means some unexpected event happening without design even though there may be negligence on the part of the workman. It is used in the popular and ordinary sense and means a mishap or an untoward even not expected or designed. What the Workmen's Compensation Act,1923 really intends to convey is what might be expressed as an accidental injury. Accident and injury are distinct. In cases where accident is an event happening extremely to a man but accident may be an event happening internally to a man and in such cases, accidental injury coincides. Such cases could be high lighted, or listed, like failure of heart, hemorrhage of brain etc., while the workman is doing his normal work. The connection between the injury and the employment may be furnished by strain of work, if the strain had attributed or aggravated or hastened the injury. In any event, if strain of work causes inefficiency, that strain itself would be FA/505920/2008 13/37 JUDGMENT the cause of death and it would be personal injury suffered by and employee in the course of his employment. (1977) 18 Guj LR 68) and 1989 Lab IC 73 (Guj. ) rel. on. (Para 12) In the instant case, the deceased had chest pain in the morning after he put in three hours labourious work. Therefore, he had to take re st. Again he resumed his duty as a disciplined labourer and again he felt chest pain, fainted and became almost unconscious. He was immediately shifted in an ambulance to hospital. This circumstance would undoubtedly permit to safely infer that the death of the deceased was attributable to the accidental employment injury. The strain of work which the deceased had undertaken would attribute and aggravate such a disease or injury and as such employer is liable to pay compensation. (Para 12) (C) Workmen's Compensation Act (8 of 1923) S.2(b) - “Compensation” under the “Act” - Is not a Civil Court – Technical rule of CPC and Evidence Act – Not binding on him. (Para 10).” 13. Commissioner under the WC Act also considered decision of Andhra Pradesh High Court in case of Union of India rep. By Divisional Manager, South Central Railway, Vijaywada & Others v. S. Mariyamma & Ors. Reported in 2004 III CLR 404 as FA/505920/2008 14/37 JUDGMENT under: “I. Accident – What does it signify ? Deceased workman, undergoing training at a different place, died due to heart attack – Commissioner awarded compensation to his widow and sons – Award challenged – Held Railways provided residential accommodation while on training but no boarding facility – No apparent contribution by workman for developing chest pain during night – Chest pain cannot be termed as something expected or designed event – It was an accident as contemplated under sec. 3 of the WC Act – Workmen's Compensation Act, 1923 – S.3. II. Death : Arising out of and during employment – Workman deputed to training at a different place – Held that in such a case training hours alone cannot be treated as period of work – workman has to undergo more stress during course of training – Developing of chest pain during night time is unexpected event - cannot be treated as designed ' Workman had not done anything peculiar to work entrusted to him – Workman is held to have died due to accident arising out and in the course of his employment – Workmen's Compensation Act, 1923 – Ss. 3,4. III. Compensation – Liability to pay interest – Relevant date from which payable – Held that compensation payable to workman as soon as accident occurred – relevant date of claim FA/505920/2008 15/37 JUDGMENT – thus awarding of interest from the date of accident, by the commissioner not unjustified -Workmen's Compensation Act, 1923 – Ss. 3,4” 14. The Commissioner also considered decision of Karnataka High Court in case of Chandramathi v. Employees' State Insurance Corporation reported in 2004 I CLR 234 as under: “I. Accident- What it signifies ? - Insured workman Purushothaman died of heart attack in the course of his employment – ESI Court rejected claim for compensation by his legal heirs / appellants – Hence this appeal – Held that heart attack was caused due to arduous and strenuous nature of work – Accident and subsequent death arose out of employment – appellants entitled to compensation – Impugned order set aside – Employees State Insurance Act 1948 – S.3(1). II. Interpretation – Term 'accident' – Object behind legislation is to protect weaker section on principles of social justice – Liberal construction – Basic ingredient of 'Accident' would be unexpectedness – Employees State Insurance Act,1948 S.3(1) ” 15. Decision of Kerala High Court in Oriental Insurance Co. Ltd. v. Thankappa reported in 2005 III CLR 446 was also considered by learned Commissioner as under: FA/505920/2008 16/37 JUDGMENT “Compensation : Bus conductor died due to drowning when he went for a bath before joining duty – commissioner awarded compensation as it was held that death was due to injury caused out of and in the course o employment – Award of compensation challenged – Held that deceased conductor with his colleague was in the Bus as they were to join duty at 3.30 AM – Before commencing duty in early morning he had to attend the human needs – It shall be taken as one arising out of his employment - -Workmen's Compensation Act, 1923 – Ss. 3.” 16. The Commissioner has come to conclusion on the basis of the evidence of widow and evidence of appellant Ehx.29 that there was a relationship between appellant and workman as an employer and employee. In respect to Issue No.2, according to appellant, the deceased was absent on the date of accident 22nd September 2004. In support of the contention, appellant has produced a record vide Exh.24 - Presence Register of September 2004 and Exh.25 – Muster Roll of September 2004 and Exh.26 – a 'Vardhi ' Book of Contractor of September 2004 and also Daily Report of Contractor. In al these documents which are produced by appellant where deceased remained absent as noted by appellant. Exh.29 one Himatbhai M. Parmar was examined on behalf of appellant and according to him, on the date of accident 22 nd September 2004, the deceased was remained absent accordingly his absence was noted by appellant. Vide Exh.29, one Himatbhai M. Parmar was examined on behalf of appellant and according FA/505920/2008 17/37 JUDGMENT to him on the date of accident 22nd September 2004, the deceased was remained absent. Accordingly, his absence was noted in muster rol l and presence register . 17. As against that, the case of applicant was that appellant is working