IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.02.2008 CORAM THE HONOURABLE MR. JUSTICE S. MANIKUMAR C.M.A.No.561 of 2001 The Oriental Insurance Co. Ltd., Regional Office, UIL Building, Esplanade, Chennai-108. `... Appellant vs. 1. Saraswathi 2. The Management of Thayimudi Estate, The B.B.T.C. Ltd., Mudi Post, Tamil Nadu 642 117. ... Respondents Civil Miscellaneous Appeal filed against the order of the Deputy Commissioner of Labour (Commissioner for Workmen's Compensation), Coimbatore, dated 21.08.2000 made in W.C.NO.107 of 1999. For Appellant : Mr.M.Vijayaraghavan For 1st Respondent : Mr.P.Srinivasan JUDGMENT Aggrieved by the order passed of the Deputy Commissioner of Labour (Commissioner for Workmen's Compensation), Coimbatore, dated 21.08.2000 made in W.C.NO.107 of 1999, the Insurance Company has preferred this appeal. 2. Brief facts leading to the Civil Miscellaneous Appeal are as follows: The first respondent is the wife of the deceased employee of the Thaimudi Estate, the second respondent. According to her, on 11.10.1997, her husband during the course of his employment, suffered severe chest pain and was taken to the hospital. He was given some tablets and returned home. On the next day, his chest pain aggravated and therefore, he was taken to the hospital and inspite of treatment, he died in the hospital. The deceased was aged about 40 years at the time of accident and earned Rs.1,605/- per month. She claimed compensation on the grounds that the death was due to an accident arising out of and in the course of employment. The employer/first respondent has denied the averments made in the claim petition and contended that on 12.10.1997, when the deceased went to purchase some articles, he suffered chest pain and died out of natural cause and it was not due to any accident arising out and in the course of employment. The appellant/second respondent refuted the claim and contended that the death of the employee occurred naturally and it was not during the course of employment and put the claimant to strict proof as regards, age, income of the deceased etc. 3. The Commissioner for Workmen's Compensation has framed two issues for determination: (i) Whether the deceased Angudas is a workmen under the Workmen's Compensation Act? Whether the deceased died during the course of employment under the employer? (ii) How much compensation, the claimant is entitled to? Who has to compensate? 4. The Deputy Commissioner for Workmen's Compensation, on appreciation of both oral and documentary evidence, has answered the issues in favour of the claimant and awarded compensation of Rs.1,48,796/- with interest at the rate of 12% per annum from the date of claim. Being aggrieved by the award, the appellant-Insurance Company has preferred this appeal. 5. While admitting this Civil Miscellaneous Appeal, this Court has framed the following substantial questions of law for consideration. i. Whether the death of the deceased could be said to be due to personal injury caused in an accident arising out of and in the course of his employment, having regard to the facts and circumstances of the case? ii. Whether the dependents of the deceased would be entitled to compensation under the Workmen's Compensation Act even in case of death due to natural causes having regard to the facts and circumstances of the case? iii. Whether the interest is payable from the date of death, even in the case of belated claim for compensation resulting in unjust enrichment having regard to the facts and circumstances of the case? 6. Referring to the date of death in Form G application submitted by the claimant under Rule 20 of the Workmen's Compensation Rules, 1924 and the date of death in the oral evidence of the claimant, Mr.M.Vijayaraghavan, learned counsel appearing for the appellant-Insurance Company submitted that there is a contradiction in the evidence rendered by the claimant about the date of death of the employee. The date of death mentioned in the said application is 11.10.1997, whereas, the date as per the oral testimony of the claimant and the Death Certificate issued by the Deputy Tahsildar is 12.10.1997. Having regard to the fact that the claim petitioner has been filed about 1 = years after the death of the employee, he submitted that the claim is made only to gain unjust enrichment and therefore, the evidence is not worthy of credence. He submitted that the Commissioner has failed to consider that the deceased Angudoss died on 12.10.1997, being a Sunday, the employee was not engaged in any work and therefore, the accident has not arisen out of and during the course of employment. 7. Learned counsel for the appellant further submitted that in the absence of any legal evidence that the nature of work was strenuous which resulted in an injury during the course of the employment, resulting in the death of the employee, the finding of the Commissioner for Workmen's Compensation is not based on any material evidence and therefore, it is perverse. He further submitted that in the absence of any medical records to prove that the deceased suffered an injury on 11.10.1997 and for the same, the claim of the first respondent ought to have been rejected by the Commissioner for Workmen's Compensation. He further submitted that in the absence of any direct evidence or connection between the nature of work, the injury said to have been sustained by the employee on 11.10.1997 and the death on 12.10.1997, the finding recorded by the Commissioner of Workmen's compensation is perverse warranting interference. He further submitted that if the accident had really occurred on 11.10.1997 resulting in death, the legal heir would have immediately filed a claim application, but in the instant case, the application for compensation has been made only on 07.04.1999 nearly after 1 = years from the date of death and therefore, it could be reasonably inferred that the claim for compensation is only to gain unjust enrichment. He further submitted that the Commissioner for Workmen's Compensation has failed to consider the evidence in proper perspective and erroneously passed an award. 8. In support of his contention, learned counsel for the appellant relied on the following judgments, E.S.I. Corporation v. Francis De Costa [1996 (2) LL 895], Mgmt. Hindustan Aeronanautics. Ltd., v. M.S.Bhagya [1999 (4) LLN 303], State of Madhya Pradesh v. Ram Lakhan Lodhi [2001 (1) LLN 580], E.S.I. Corporation v. Narasabai W/o. Naran Pantaji [2001(1) LLN 1177] and J.Ademma v. Plan Engineer [2006 (3) LLN 811]. 9. Per contra, learned counsel for the respondent-claimant submitted that on 11.07.1997, just before the closure of work, the deceased suffered severe chest pain and was taken to a hospital, where he was given some tablets. After taking the medicine, he returned to his house and on the next day, by 2.00 P.M., he suffered severe pain and therefore, he had rushed to the hospital and the Doctor, who came at 5 p.m., declared the employee as dead. He further submitted that there is sufficient evidence to prove that the deceased died out of chest pain and the accident arose out of and in the course of employment. He further submitted that in the absence of any rebuttal evidence, the findings recorded by the Commissioner of Workmen's Compensation, cannot be interfered in the Civil Miscellaneous Appeal and therefore, prayed for the dismissal of the appeal. Heard the learned counsel appearing for the parties and perused the materials available on record. 10. Before adverting to the facts of the case, let me extract the relevant provision enabling the injured/dependant to make a claim under the Workmen's Compensation Act. For the convenience sake, the beneficial legislation is referred to as "Act". Section 3(1) of the Act deals with the employer's liability for compensation and reads as follows: "3. 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 three days; (b) in respect of any injury, not resulting in death or permanent total disablement, caused 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 framed, 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 workmen." 11. Case laws cited by the appellant are also analysed for proper appreciation of the issues to be adjudicated in this appeal. 12. In E.S.I. Corporation v. Francis De Costa reported in 1996 (2) LLJ 895, the Supreme Court considered a case as to whether an injury sustained by an employee in a road accident which occurred while the employee was on his way to his place of employment could be termed as an "employment injury", arising out of and in the course of employment. In the reported judgment, the employee was to report for duty at 4.30 P.M. The accident took place at 4.15 P.M., one Kilometre away from the factory, while he was on his way to his place of employment and he was hit by a lorry belonging to his employer. The dispute was whether the injury amounts to "employment injury", within the meaning of Section 2(18), so as to enable the employee to claim the benefit under the Employee's State Insurance Act, 1948. The Supreme Court at Paragraphs 5 and 29 of the judgment held that, the employee in order to succeed in the claim will have to prove that the injury that he has suffered arose out of and was in the course of employment. The conditions set out in Section 3 of the Act have to be fulfilled before the employee could claim any benefit under the Act. On the facts of the reported case, the Apex Court held that that the injury suffered by the employee was not in the course of employment and allowed the appeal filed by the State Insurance Corporation. 13. In Smt.Ananthamma v. Managing Director, Co-operative Spinning Mills Ltd., Raichur, reported in 1999 (1) LLW 360, the Karnataka High Court disallowed the claim of a widow of a workman, who died because of heart failure while on duty, holding that it cannot be said to be a personal injury caused by the accident in the course of employment. The facts of the reported case are that when the employee was attending his work, a co-employee heard the voice of the deceased saying 'Ham'. While the co-worker was waiting for a bus, the employee gasped his breath and collapsed. The Commissioner for Workmen's Compensation awarded compensation in favour of the claimant. On appeal, the High Court held that, the employers liability to pay compensation arises only if the personal injury is caused to the workman by accident arising out of and in the course of accident. Finding that there was no direct evidence that the personal injury was caused to the workman by an accident, while he was discharging his duty in the course of employment, the High Court reversed the decision. 14. In Management Hindustan Aeronanautics. Ltd., v. M.S.Bhagya reported in 1999 (4) LLN 303, the Karnataka High Court at Para 5 of the judgment held that the burden is cast on the claimant to establish that there must be a casual connection between the death of the workman and his employment. The Court further held that there must be evidence on record to establish that the workman died on account of the work he was carrying on and if the death has taken in the normal course of way, automatically it goes to show that there was no connection between his death and employment. 15. A Division Bench of the Madhya Pradesh in State of Madhya Pradesh v. Ram Lakhan Lodhi reported in 2001 (1) LLN 580, considered the correctness of an award passed by the Commissioner of Workmen's Compensation in favour of the parents of the deceased who died in a road accident. Following the judgment reported in Sourashtra Salt Manufacturing Company v. Bai Vahu Raja reported in AIR 1959 SC 881, and E.S.I. Corporation v. Francis De Costa reported in 1996 (2) LL 895, the Division Bench, held that there must be a casual connection between the accident and the employment. 16. The Gujarat High Court in E.S.I. Corporation v. Narasabai W/o. Naran Pantaji reported in 2001(1) LLN 1177 held that a claim under Section 2(8) of the Act can be sustained if the death or injury is caused arising out of and during the course of employment. In the reported case, the employee reached the Mill gate at about 6.45 A.M., for the first shift commencing at 7 A.M., and suddenly 6.55 A.M., he collapsed and died due to cardiac arrest outside the Mill gate. Post Mortem report revealed that it was a case of cardiac arrest. The Tribunal observed that the strain which the deceased undertook in his employment and the strain which he must have undertaken from his house must have caused the cardiac arrest. On examination of the evidence on record and following the principles laid down in Francis De costa's case, the High Court held that if employment begins from the moment the employee sets out from his house for the factory, stumbles and falls down at the doorstep of his house and if it has to be treated as an accident taken place during the course of employment, it would lead to absurdity. 17. In J.Ademma v. Plan Engineer reported in 2006 (3) LLN 811, the Supreme Court considered the correctness of an award passed under the Workmen's Compensation Act. The deceased was a workman in Nellore Thermal Station and he died at the work spot. Legal representative claimed compensation that the employee died due to stress and strain closely linked with the employment of the deceased and therefore, attributable to an accident arising out of and in the course of employment. The Commissioner for workmen's Compensation passed an award in favour of the claimant. In the appeal under Section 30 of the Act, the stand of the employer was that the deceased did not die on account of any injury sustained by him in any accident arising out of and in the course of employment. The High Court observed that there was no injury as such, but he died due to the Heart Attack. The High Court found that the nature of the job which the deceased workman was doing could not have caused any stress and strain and therefore, the death due to heart attack cannot be said to have been caused by any accident arising out of and in the course of his employment. On consideration of the evidence and submissions, the Supreme Court at Paragraph No.6 of the judgment held as follows: "5. Under Section 3(1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies as a natural result of the disease which he was suffering or while suffering from a particular disease he dies 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 be said that the death arose out of the employment and the employer would be liable." 18. In a recent judgment, in Shakuntala Chandrakant Shreshti v. Prabhakar maruti Garvali & another reported in 2007 (2) LW 858, the Supreme Court affirmed the legal principles enunciated in the leading case of Francis De Costa's and set out the principles of law to be applied in the matter of compensation under Workmen's Compensation Act. In the above reported judgment, a cleaner of a vehicle who was travelling in it suddenly developed chest pain and was admitted to a Government Hospital. Despite intensive treatment, he died in the hospital. The mother of the deceased filed a claim petition under the Workmen's Compensation Act before the Commissioner for Workmen's Compensation. The only evidence which was brought on record by way of deposition of the mother of the deceased was that her son died while working in the vehicle of the Respondent No.1 and due to the strain of work, he died. The driver of the vehicle deposed that the deceased, while getting down from the said vehicle got pain in the chest and was taken to the hospital. The Doctor certified that the cleaner died due to cardiac attack. The Insurance Company raised plea of collusion between the employer and the matter of the employee, appellant before the Supreme Court. The Commissioner of Workmen's Compensation passed an award in favour of the claimant. On appeal, the High Court opined that the findings of the Commissioner for Workmen's Compensation were perverse and inconsistent with the material on record. On appeal, the Supreme Court upon consideration of various decisions and in particular the leading case reported in Regional Director, ESI Corporation and another v. Francis D.Costa and another reported in 1996 (6) SCC 1, formulated the following guidelines in the matter of claim under the Workmen's Compensation, 21. There are a large number of English and American decisions, some of which have been taken note of in ESI Corporation (supra), in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. 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 personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case. 22. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed. 23. 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. 24. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. 25. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are: 1. stress and strain arising during the course of employment, 2. nature of employment, and 3. injury aggravated due to stress and strain. 26. The deceased was travelling in a vehicle. The same by itself can not give rise to an inference that the job was strenuous. 27. Only because a person dies of heart attack, the same does not give rise to automatic presumption 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. 28. Circumstances must exist to establish that death was 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 therefore 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 to be considered on its own fact and no hard and fast rule can be laid down therefor. 34. Only because the cause of death was due to heart attack, the same by itself may not be a ground to arrive at a conclusion that an accident had occurred resulting in injury. 36. 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 of 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. 37. Section 30 of the said Act postulates an appeal directly to High Court if a substantial question of law is involved in the appeal. 38. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. From the order passed by the Commissioner, it appears, he has not arrived at a finding that the job involved any stress or strain.............................................................................there has to be an proximate nexus between cause of death and employment. A stray statement made by Appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation. Admittedly she was not present at the spot. She had also no personal knowledge. All these facts she had admitted in cross-examination. 39. This vital aspect of the matter was required to be considered by the High Court so as to arrive at a finding as to how the said accident has arose or not. 40. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record." 19. A learned single of this Court in The Oriental Insurance Co. Ltd., v. Tmt.Chinnapillai & another reported in 2007 (4) LW 355, tested the correctness of an award passed by the Commissioner of Workmen's Compensation in favour of a widow of the deceased, who was working in a Tea Estate plucking tea leaves and died due to chest pain. It was claimed that he died in the course of employment and due to stress and strain of the employment. Following the principles laid down in Shakulthala's case, this Court at Paragraph 8 of the judgment held as follows; "8. To invoke the provisions of Section 3 of the Workmen's Compensation Act, there must be an injury caused to the workmen, and such injury must be caused by an accident which arose out of and in the course