IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 MFA.No. 130 of 2008() --------------------- WC.132/2006 of W.C.C.,KOZHIKODE .................... APPELLANT(S): 2ND OPPOSITE PARTY -------------------------------- UNITED INDIA INSURANCE COMPANY LIMITED, VADAKARA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, 'SHARANYA', HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.P.JACOB MATHEW RESPONDENT(S): APPLICANTS ------------------------- 1. SUDHINA, W/O.LATE SURESH, CHALIKUNNUMMEL HOUSE, VILLIAPPALLY, VADAKARA NOW RESIDING AT PADINHARA MALAYIL, VAIKKILLASSERY P.O., VADAKARA. 2. JANU, W/O.KELAPPAN, CHALIKUNNUMMEL HOUSE, VILLIAPPALLY P.O., VADAKARA. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... M.F.A. No.130 of 2008 .................................................................... Dated this the 15th day of January, 2009. JUDGMENT Ramachandran Nair, J. Even though notice is served on the respondents, there is no response. However, we have heard Senior counsel appearing for the appellant. Counsel submitted that in the first place, the driver had no business to unload and then carry the stones transported in the truck by himself and therefore, the strain if any caused in the course of carrying stones is not attributable to employment. However, we are not able to agree with this contention because what is stated is that the driver was engaged in transport and unloading of goods which means the truck driven by him was engaged in transport and unloading of goods and not that he was personally unloading the goods or carrying it to the actual site. The evidence show that physical problem leading to heart attack and death arose in the course of employment i.e. while he was engaged as a driver in the transport of stones from one place to another. The next contention raised by counsel for the appellant is that there is 2 no medical evidence to show that the strain in the employment caused the death. We do not find any cross-examination on relevant issues such as make of the vehicle, condition of the road on which the vehicle was used and the number of hours of work etc. A doctor cannot give any medical evidence without reference to facts which are not on record. Therefore, we do not think there is any scope for remanding the matter on this issue. Since the deceased admittedly developed symptom of heart problem while he was employed as driver in the truck and since he died of heart attack shortly thereafter, it has to be taken that the immediate cause of the disease and death is strain in the employment. However, we find force in the contention of counsel that interest granted by the Workmen's Compensation Commissioner from the date of accident is not tenable by virtue of decision of the Supreme Court in NATIONAL INSURANCE CO. V. MUBASIR AHMED (2007 AIR SCW 1265). We, therefore, modify the award by limiting the interest from date of award till date of deposit. If excess is deposited by the Insurance Company, such amount will be returned 3 back to the Insurance Company. Balance amount will be disbursed without delay. Appeal stands allowed to the above extent. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms