IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 MFA.No. 170 of 2006 ---------------------------- WCC.7/2000 of COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER) ,KOZHIKODE .................... APPELLANT(S): OPPOSITE PARTY: ------------------------------------------------ PRESIDENT, M/S GRASIM INDUSTRIES LTD, BIRLAKOOTAM, MAVOOR. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR RESPONDENT(S): APPLICANTS 1 TO 3: ------------------------------------------------------ 1. SMT.C.H.BASHEELA, W/O.LATE A.MOHAMMED BASHEER, KONARAMBATH HOUSE, POST PERUVAYAL, PERUVAL AMSOM, DESOM, KOZHIKODE 673 008. 2. A.ASHIK AMEEN, S/O.LATE A.MOHAMMED BASHEER, KONARAMBATH HOUSE, POST PERUVAYAL, PERUVAL AMSOM, DESOM, KOZHIKODE 673 008. 3. A.ASLAM AMEEN, S/O.LATE A.MOHAMMED BASHEER, KONARAMBATH HOUSE, POST PERUVAYAL, PERUVAL AMSOM, DESOM, KOZHIKODE 673 008. BY ADV. SRI.T.R.RAVI SRI.P.S.MURALI THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.No.170 of 2006 ----------------------------------------- Dated, this the 26th day of September, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the opposite party in a proceeding under Section 22 of the Workmen's Compensation Act before the Commissioner for Workmen's Compensation. The Commissioner has allowed the application filed by the respondents/applicants in a sum of Rs.1,66,290/- with interest at 12% from the date of accident. The case of the applicants was briefly as follows: The predecessor of the applicants was a Forest Supervisor. He had to go to interior places of the forests for the purpose of inspecting bamboos and eucalyptus. He had to supervise the cutting and stacking of bamboos and eucalyptus. He had to make arrangements for supplying the stacked forest materials to the company, take weighment of the lorry loads of bamboos and eucalyptus, maintain accounts pertaining to the above activities. His work involved great stress, strain and mental tension. The stress and strain involved in the work resulted in the development and aggravation of myocardial infraction while he was on duty on MFA 170/2006 -2- 4.2.1999. Though he was taken to hospital he succumbed to the injury. It is also their case that on 4.2.1999 early morning he travelled from Sultan Battery to the Head office for the purpose of collecting salary of the staff. Myocardial infraction aggravated after he reached the Head office. Appellant denied the contention relating to stress and strain in particular. 2. We heard the learned counsel for the appellant and learned counsel for the respondents. 3. Learned counsel for the appellant would only submit that the Commissioner acted illegally in finding that the death of A.Mohammed Basheer was as a result of the employment. He would submit that, the workman died on 4.2.1999. It is, no doubt, he died while he was in the Head office at Mavoor. He reported for duty on the said day and during the course of the day he developed chest pain. Though he had been taken to hospital, it was found that he was dead. In other words, he would submit that it could not be said that there was any stress or strain on the day on which he died arising from the employment. It is not as if he had been working for a long number of hours in the office. He would also submit that the work did not MFA 170/2006 -3- involve stress and strain and the finding to the contrary cannot be sustained. We deem it necessary to refer to the exact finding of the Commissioner in full which reads as under: “Issue No.3:-- Aw2 Shri.Lakshmi Narayanan, who was in charge of the Sultan Battery Forest Division where A.Mohammed Basheer was working as a Forest Supervisor, has deposed that Mohammed Basheer had to go into the forests to supervise cutting and stacking of bamboos and eucalyptus done by the Contrators, that Mohammed Basheer had to walk to places in the forest which were not connected by motor able roads, that Mohammed Basheer had to inspect the bamboos and eucalyptus stacked in the forests and send up a report regarding the quantity of them, that Mohammed Basheer had the responsibility of despatch of bamboos and eucalyptus to the company, of maintaining the accounts of bamboos and eucalyptus cut stacked and despatched to the company, of incurring various expenses of the depot and of collecting cash from the Company office for the purpose of paying salary of staff, etc. and that the activities of Mohammed Basheer required much physical effort. Shri.Lakshmi Narayanan has deposed further that Mohammed Basheer had informed him that he would go to MFA 170/2006 -4- Mavoor on 4.2.99 for collecting the wages of staff and cash for miscellaneous expenses. He was cross examined in length. But the lengthy cross examination could not discredit his deposition. The AW3 V.Sami has deposed that Mohammed Basheer had informed him that on 4.2.99 he came to Mavoor direct from Bathery in a bus. But the RW1 Shri.K.P.Ramadas has deposed that the work of Mohammed Basheer would not cause much stress and strain. According to him Mohammed Basheer was provided with a bike and he need not go into deep forests very often. But his description of the responsibilities of Mohammed Basheer tallies more or less with the description given by Sri.Lakshmi Narayanan (AW2). The RW1 Sri.K.P.Ramadas says that the death has no connection with employment and that Mohammed Basheer came to his house at Peruvayal on 3.2.99 and came to the company office on 4.2.99 from his house at Peruvayal which is only 5 Kilometers away from Company office. Shri.K.P.Ramadas (RW1) was Deputy General Manager in the opposite party's company. He had not gone to the forests to oversee the work of Mohammed Basheer. So his assessment that the activities of Mohammed Basheer as a Forest Supervisor would not cause much stress and strain could not be accepted. MFA 170/2006 -5- AW1 Sri.Lakshmi Narayanan was in charge of Sultans' Batttery Depot where Mohammed Basheer was working as a Forest Supervisor. So Aw2 Sri.Lakshmi Narayanan had the opportunity to understand and assess the stress and strain involved in the work of Mohammed Basheer. AW1- First Applicant also has deposed that Mohammed Basheer had gone to company office at Mavoor direct from Sultans Battery on 4.2.99. I, therefore, hold that the work of Mohammed Basheer was causing much stress and strain and that on 4.2.99 he came to the company office at Mavoor from Sulthans Battery by bus. The A1-Certificate issued by Grasim Jankalyan Trust Hospital, Birlakoottam, Mavoor, proves that Mohammed Basheer died due to Myocardial infarction. Whether the death has a casual connection with the work done by Mohammed Basheer in the course of his employment. As found above, Mohammed Basheer was engaged in a work which was causing much stress and strain. Moreover on the eventful day he travelled in a bus from Sultans Battery to Mavoor to collect wages and cash for other expenses. The journey was performed in connection with his employment under the opposite party. He suffered chest pain while he was in the Company's office MFA 170/2006 -6- and was taken to the hospital by some employees of the company. But unfortunately he died in the hospital. I am convinced that his death has a casual connection with the work done by Mohammed Basheer in the course of his employment. The unexpected death is an accident. The death is a personal injury caused to Mohammed Basheer. Therefore, the issue also is answered in the affirmative.” 4. Learned counsel for the appellant also submits that instead of the workman dying while in office had he succumbed to the heart attack which he had suffered while at home could it be said that the death arose out of employment. He would say that it could not be in the circumstance injury resulting from an accident out of employment. If that be so, he poses a question for the mere reason that a 48 year old man died of heart attack when he was in his office without there being any aggravating stress or strain on that day it could be said that the death was due to stressful employment ? According to him, clearly the Commissioner acted illegally. 5. Per contra, learned counsel for the respondents would submit that the argument canvassed by the learned counsel MFA 170/2006 -7- for the appellant may not be countenanced for the reason what is to be seen is whether the job involves stress and strain and it is not the law that we must bestow attention on the events of the day whether the workman dies or suffers injury alone. He would support the order of the Commissioner. 6. When an employee dies of heart attack, no doubt, one should not immediately rush to the conclusion that it arises from the employment. Heart attack may be natural culmination of a person's life in the sense that it could be said that it was a disease afflicting the employee over a long period of time for which he may have been taking treatment and in the course of an otherwise unstressed work environment, if the employee succumbed to the disease it could not be held that it is a death arising out of employment. In other words, as held by the Apex Court it is a jurisdictional aspect,viz., whether the work in which the workman was involved contributed either by itself or at least partly to the death. Therefore, each case must be decided on the facts. 7. In this case there is pleading. The parties went to trial. Witnesses were examined on the side of the applicants and MFA 170/2006 -8- appellant. Commissioner referred to the evidence, appreciated the evidence and has arrived at the finding. It is not a case where any vital piece of evidence is ignored by the Commissioner giving rise to a question of law. A view taken by the Commissioner when it is impugned in a proceeding under Section 30 cannot be set aside unless a substantial question of law is successfully canvassed before the appellate court as having been made out. This is not a case where there is lack of evidence in support of the Commissioner's finding. Even RW1 the witness for the appellant has said that not much stress or strain attended the work of the deceased workman. Therefore, even according to the witness of the appellant, it is not a case that the work did not involve stress and then it becomes a matter of degree and it becomes a question of appreciation of rival witness for the parties. Mere error of finding of fact will not give rise to an occasion for the appellate court to intervene. We are of the view that the appellant has not made out a case for interference with the finding of the Commissioner which is substantially in the region of finding of fact. We must further notice that there is no case at all for the appellant that the deceased workman was suffering from disease MFA 170/2006 -9- for a long time or that he was under treatment. Having regard to the facts, we uphold the order of the Commissioner and dismiss this appeal. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS