1 Fa1585.96 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1585 OF 1996 The Shipping Corporation of India Ltd. .. Appellant Vs Haridas Ram Fulberiya. .. Respondent -- Shri Sudhir Talsania, Senior Counsel along with Shri Manek Kalyaniwalla & Shri Agnel Carneira i/by Mulla & Mulla & Craigie Blunt and Caroe for the Appellant. None for the Respondent. -- CORAM : A.S.OKA, J. DATE : 17TH SEPTEMBER, 2010 ORAL JUDGMENT : . The submissions of the learned Senior counsel appearing for the Appellant were heard on the earlier date. 2. The challenge in this Appeal is to the judgment and order dated 12th August, 1996 passed by the learned Commissioner for Workmen’s Compensation. The Respondent is the claimant. The Respondent was in the employment of the Appellant –Shipping Corporation of India. According to the case made out by the Respondent, he was working as Seaman since June 1965 and was on the roster of the Appellant since October, 1979. It is 2 Fa1585.96 stated that lastly the Respondent was signed as a Seaman on M.v. Mandakini of the Appellant. On 30th June, 1992, the Respondent was taken on the ship. It is his case that he was made to perform his duties for the whole day and night and was made to work overtime. At 1.00 a.m. on 2nd June, 1992 while performing the duties, he started vomiting and felt pain in the chest. On 2nd July, 1992, at 1.00 a.m., the Respondent was taken to the Appellant’s Doctor and was thereafter hospitalized. He was sent back to Bombay on 27th July, 1992 and was admitted in Harkishandas Hospital as an Indoor patient for 12 days. After leave period was over and after taking rest, the Respondent was sent to Beach Candy Hospital and Research Centre for undergoing tests. As per the medical advice, he undergone rest for two months and thereafter the Dr. Mody issued a certificate that he was permanently unfit for sea service. 3. The case made out by the Respondent is that on account of stress and strain of work performed by the Respondent and environment factors on the board of the ship, he suffered employment injury which aggravated and accelerated and resulted in he being declared as unfit for sea service. He alleged that there was a direct relationship between his employment on the board of the ship and the disability suffered. It is alleged that the disability suffered out of and in the course of his service on articles. 4. The claim made by the Respondent was resisted by the 3 Fa1585.96 Appellant by contending that the injuries suffered by the Respondent had not arisen out of and in the course of employment. It was denied that the Respondent was required to work day and night. 5. The learned Commissioner came to the conclusion that the Respondent suffered injury during the course of his employment and accordingly proceeded to grant compensation of Rs.3 lakhs. 6. Learned Senior Counsel appearing for the Appellant has taken the Court through the impugned judgment and evidence on record. He submitted that there is no casual connection between the employment and the alleged injury sustained by the Respondent. He invited an attention of the Court to the evidence of the Respondent. He submitted that admittedly before the Respondent was taken on the ship, he was medically examined. He pointed out that before joining the ship on 30th June, 1992, admittedly the Respondent had enjoyed leave/break for a period of 8 to 9 months. He pointed out that even the other workmen worked for 25 hours during the period in which the Respondent was allegedly made to work continuously. He pointed out that the Respondent admitted that other 6 to 7 workers were also doing the said work and except the Respondent, no one fell sick. He pointed out that in the cross-examination of Dr. Rajeev Chavan examined by the Respondent who admitted that it might have taken time of 10 to 15 years for developing heart ailment. He submitted that prior to 30th June, 1992, the Respondent had not worked for 7 months and, only after 4 Fa1585.96 working for 2 days, he started vomiting. Thus, the submission of the learned Senior counsel appearing for the Appellant in short is that there is not even a casual connection between the injury and the employment. He relied upon a decision of the Apex Court in the Regional Director, E.S.I. Corporation & Another v. Fancis De Costa and Another, [ (1996)6 SCC 1 ]. He also fairly pointed out the two decisions of the learned Single Judge of this Court on the aspect of employment injury. He submitted that the factual matrix of the said two decisions was totally different, as in the present case, the Doctor examined by the Respondent himself stated that the ailment of heart developed during the span of 10 to 15 years and that after a gap of 7 to 8 months, the Respondent had worked only for two days. He submitted that the fact that the Respondent was operating crane is brought on record in the cross-examination of the witness examined by the Appellant. He submitted that 7 other employees doing the same job did not suffer from any ailment. His submission is that the finding of the learned Commissioner is without any legal evidence on record and the same is perverse. 7. I have carefully considered the submissions. I have perused the notes of evidence. The Respondent suffered heart ailment i.e. mycardial infraction. It is true that the Respondent admitted that he was in the native place for a period of 8 to 9 months before joining the ship m.v. Mandakini on 13th June, 1992. The Respondent himself admitted that before he was taken on the ship, he was medically examined by taking his 5 Fa1585.96 blood sample and by examining his blood pressure. In the examination-in- chief, the Respondent had stated that from 30th June, 1992 till 2nd July, 1992, he worked for 25 hours and that he started vomiting and chest pain at 1.00 a.m. on 2nd July, 1992. He has admitted that he was suffering from due to sun. He also admitted that there were 7 other workers doing the same work which he was doing and none of them fell sick. 8. The Respondent examined Dr. Rajeev Chavan as an expert witness. The witness admitted that though he had never treated the Respondent, he had read his case papers. He has described the causes of acute mycardial infraction. In Paragraphs 5 and 6, the witness stated thus:- “5. The causes of the disease suffered by the appellant are many, like blockage of heart, vessels, any kind of physical or mental stress. Stressful working environment, constructions of blood vessels of heart etc. The disease can take any time to develop like from one day to ten years. 6. It is difficult to tell the period taking to develop the disease in case of appellant considering his age, it must have taken 10 to 15 years to develope.” 9. The Appellant examined its Chief Medical Officer who had declared the Respondent as ‘unfit’. He stated that there are various reasons for the said ailment. He stated that the work could not lead to heart attack unless person has a latent problem. The witness admitted that there was overtime of 25 hours during the relevant time which was a normal overtime. In Paragraph 10 of his deposition, the Chief Medical Officer 6 Fa1585.96 stated thus:- “10. ..... The appellant’s prehistory shows not to be had never had a heart problem in his part. The appellant was doing the work of removal of coals from heaps and taking them in holes. The witness volunteers shows the cranes were handling coals and the appellant was operating cranes.” In Paragraph 11 of his deposition, the Chief Medical Officer proceeded to depose as under:- “11. It is true that the dust of coal goes to lungs causing suffocations. It is true that chest pain is one of the signs of heart attack. Whether such patient can travel by 2nd class train depends upon the condition of patient. It is true that we send the heat patient to specialist doctors. I or my subordinates are not cardiologists. I had examined the appellant before admission.” . In the cross-examination of the said witness, he admitted that 5 or 6 days before the relevant day, the Respondent was quite alright. In fact, the witness admitted that complete examination such as screening of chest, test of urine and blood for sugar and E.C.G., is always done depending upon a case to case for each employee. In Paragraph 8 of the cross-examination, he admitted that the Respondent was on duty for 59 hours after joining the voyage. He admitted that the Respondent was supposed to work for 8 hours a day. 7 Fa1585.96 10. Dr. Rajeev Chavan examined by the Respondent has stated that the causes of heart ailment suffered by the Respondent were many including stressful working environment and that the disease can take time to develop from one day to 10 years. While referring to the case of the Respondent, he stated that it is difficult to state the period taken to develop the disease in case of the Respondent, but considering his age, it must have been taken 10 to 15 years. 11. Thus, on 30th June, 1992, the Respondent was not suffering from any ailment. Even according to the Chief Medical Officer of the Appellant, from 30th June, 1992 to 2nd July, 1992, the Respondent was on duty for a period of 59 hours. 12. The Respondent suffered an heart ailment. A direct evidence of the fact that injury was caused during the course of employment may not be available in such a case. Even, according to the case of the Chief Medical Officer of the Appellant, before 30th June, 1992 the Respondent was medically examined and nothing wrong was found. According to the said Officer, from 30th June, 1992 till early morning of 2nd July, 1992, the Respondent worked for 59 hours. Considering this material on record, an inference has been drawn by the learned Commissioner that there was a connection between the heart ailment suffered by the Respondent and the nature of duties. Accordingly, a finding of fact has been recorded by the learned Commissioner after taking into consideration the evidence of Dr. 8 Fa1585.96 Mody, that there was a connection between the heart ailment and the overtime work done by the Respondent which accelerated the injury and the disease. The finding of fact recorded by the learned Commissioner is based on the legal evidence on record. An appeal under Section 30 of the Workmen’s Compensation Act is only on question of law. 13. Thus, it is not possible to interfere with the said finding even after applying the test laid down in the case of Regional Director vs. Francis De Costa (supra). The appeal is accordingly dismissed with no orders as to costs. 14. On the prayer made by the learned counsel appearing for the Appellant, interim stay granted by this Court will continue to operate for a period of 12 weeks from today. (A.S.OKA,J)