IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 MFA.No. 594 of 2003() --------------------- WCC.55/1997 of W.C.C.,KOTTAYAM .................... APPELLANT(S): APPLICANTS ------------------------ 1. JANCY W/O. JOSEPH, MULLAMKUZHIYIL HOUSE, (PLAVUVECATHIL) CHAMAKKALA P.O., MANJOOR, KOTTAYAM. 2. NEENU (MINOR) D/O. JOSEPH REPRESENTED BY HER MOTHER JANCY OF DO. DO. DO. 3. MANU D/O. JOSEPH (MINIR) REPRESENTED BY HER MOTHER JANCY OF DO. DO. DO. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S): OPPOSITE PARTIES ------------------------------- 1. EMMANUEL THOMAS, PUTHUPARAMBIL HOUSE, CHAMAKKALA P.O., MANJOOR, KOTTAYAM. 2. THE NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY ITS BRANCH MANAGER, NEW INDIA ASSURANCE CO.LTD., ETTUMANOOR BRANCH, ETTUMANOOR BRANCH, ETTUMANOOR P.O., KOTTAYAM. ADV. SRI.V.PHILIP MATHEW FOR R1 SRI.KKM.SHERIF FOR R2 SRI.A.A.ZIYAD RAHMAN FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. .................................................................... M.F.A. No.594 of 2003 .................................................................... Dated this the 24th day of September, 2008. JUDGMENT Ramachandran Nair, J. Heard counsel for the appellants, Standing Counsel for the second respondent-Insurance Company and counsel for the first respondent. Appeal is filed challenging the order of the Workmen's Compensation Commissioner whereunder he declined to grant any compensation to the appellants. The first appellant is the wife and the remaining are minor children of a person who while driving a mini lorry died of heart attack. Even though the vehicle was covered by a policy of insurance which includes coverage for employees like driver, cleaner etc., the Workmen's Compensation Commissioner declined to grant benefit for the reason that there is no evidence to prove that heart attack was caused on account of strain in the employment as driver. Counsel for the appellants has relied on decision of this court in MANAGER, THENGACKAL ESTATE V. REETHAMMAL & ANR. (1996(1) KLJ 623) and that of the Supreme Court in SHAKUNTALA CHANDRAKANT SHRRESHTI V. PRABHAKAR MARUTI GARVALI (AIR 2007 SC 248). Counsel for the 2 Insurance Company has also relied on the same decision of the Supreme Court referred above. A Division Bench of this court in the first decision abovereferred held that if the death is accelerated on account of the stress in the employment, then the claimants are entitled to compensation. In the second decision relied on by both the parties even though the Supreme Court declined to grant compensation, they have held that if the evidence on record establishes a greater possibility which satisfies a reasonable man that the work contributed to the causing of personal injury, it would be enough for the workman to succeed, but the same would depend on facts of each case. The objection of the Insurance Company based on this decision is not tenable because in the decision of the Supreme Court, the person who died of heart decease was a cleaner who was not engaged in work at the time he developed the heart problem while traveling in the vehicle. However, in this case the facts show that the deceased was driving the goods vehicle from 11' O clock in the morning and he got the heart decease at around 2.30 in the afternoon. The Postmortem certificate shows that the death is on account of coronary heart decease leading to heart failure. The claimants have not examined the Doctor to prove that the heart decease could be accelerated on account of the stress in driving a goods vehicle. The appellants' case is that the deceased was not a heart patient and respondents also have not adduced any evidence to show that the deceased suffered any 3 heart problem prior to the date on which he died while driving the vehicle. Since the Doctor was not examined, medical opinion is also not available as to whether the strain in the employment of driving a goods vehicle would have accelerated the disease and was the immediate cause of the heart failure. However, we are not in a position to rule out the chances of strain in the employment i.e. driving a goods vehicle, as the immediate cause of acceleration of the heart decease that led to the death of the driver. Since the vehicle was covered by an Insurance policy and since there was a possibility of strain in the employment accelerating the hear decease, we feel a reasonable compensation can be granted to the appellants. Accordingly, we allow the claim in part by directing the Insurance Company to give a compensation of rupees one lakh to the appellants with statutory rate of interest from date of application till date of deposit. The appeal stands allowed to the above extent. C.N.RAMACHANDRAN NAIR Judge HARUN-UL-RASHID Judge pms