M/S. Nepcon Nat. Engg., Projects ... vs Sri Murapaka Satyanarayana 2 ...
2021 Latest Caselaw 884 AP

                                                                 MVR,J
                                                                 C.M.A.No.2001 of 2004

                                          1

                   HON'BLE SRI JUSTICE M. VENKATA RAMANA

                              C.M.A.No.2001 of 2004
ORDER:

This Civil Miscellaneous Appeal is directed against the order of the

Commissioner under Workmen Compensation Act cum Assistant

Commissioner of Labour, Circle - II, Visakhapatnam, in W.C. case No.17 of

2003 dated 24.01.2004.

2. The appellants are the opposite parties and the respondents were

the applicants in the enquiry before the Commissioner for Workmen

Compensation (Commissioner for 'short').

3. The respondents laid a claim application to award a compensation of

Rs.4,36,940/- and for costs, on account of death of Sri M.T.S.Kumar. The

respondents 1 and 2 are his parents and the third respondent is his younger

brother. The first respondent as a contracting agency had undertaken

certain works in the manufacturing unit of the second respondent, where

usually they were producing sulpher phospate and manufacturing

fertilizers.

4. The deceased Sri M.T.S.Kumar, was an employee and a painter for

the first appellant according to the respondents. They further claimed that

on 03.05.2002 at about 8.50 a.m. when Sri M.T.S.Kumar, was attending to

painting work at the factory premises of the second appellant at the top

level, he fell down accidentally due to chemical reaction and received

grievous injuries to his head, who died consequently there itself. When he

was taken to Community Health Center, Aganampudi, by the staff of

second appellant, he was declared brought dead by the medical officer of

the health center.

MVR,J C.M.A.No.2001 of 2004

5. The respondents also claimed in their application that the deceased

was hale and healthy, who never suffered from any ailment earning

Rs.4,075/-, and was 24 years old by the time of the accident. Thus, they

justified their claim for compensation and as his legal heirs to succeed to

his estate.

6. Both the appellants opposed this claim specifically contending in

their counter disputing the nature of this accident and as well as the cause

of the death of Sri M.T.S.Kumar. They did not dispute that the deceased

was working for the first appellant and that they stated that he joined the

said company in April 2002, where he worked for a short duration of about

20 days or a month as a helper to the painter, who was being paid Rs.75/-

per day as a casual daily labour.

7. Their specific contention is that on the date of the accident, the

deceased Sri M.T.S.Kumar, worked from 8.15 a.m. in a routine manner and

at about 12.50 p.m. he complained severe chest pain, whereupon he was

taken to the Health Center, at Aganampudi for treatment by the staff of

the first respondent, where he was pronounced dead.

8. Thus, they denied that the deceased died on account of the injury

suffered in the alleged accident as attributed by the respondents stating

that he was suffering from heart ailment, who was not in good terms with

his family members, viz., the respondents. They also contended that on

the fateful day, he did not have food and was not taking any food for days

together. Referring to the outcome of the investigation by the police, in

Crime No.34 of 2002 of Parwada Police Station registered under Section 174

Cr.P.C. on 03.05.2002, particularly the post-mortem examination and the

inquest, these appellants also contended that the material revealed that MVR,J C.M.A.No.2001 of 2004

the deceased died of heart failure and anemia. Thus, they claimed that

the death was self-inflicted.

9. Before the Commissioner, the first respondent examined himself as

A.W.1 while relying on Ex.A1 to Ex.A6. On behalf of the first respondent,

R.W.1- a supervisor working in that company was examined through whom

Ex.R1 to Ex.R5 were marked. R.W.2 is the painter working for the first

appellant company and deposed about the incident properly. R.W.1 was

then technical assistant in the second appellant company through whom,

Ex.R6 was marked during enquiry.

10. Basing on the material, the Commissioner settled the following

issues for enquiry.

1. Whether the deceased died due to the accident occurred during the course of employment or not.

2. If so, what is the wage and age of the worker and to what amount of compensation the applicants are entitled to.

11. The Commissioner held that the respondents failed to prove the

reason and cause for the death of Sri M.T.S.Kumar, as alleged by them in

their petition. While observing that there is material to hold that the

deceased was attending to whitewashing, who died due to cardiac arrest

due to anemia, basing on his age as well as the fact that the deceased was

working as a casual and contract labour in a chemical factory, applying the

minimum wages payable for unskilled workers at Rs.2,250/- per month,

arrived at compensation of Rs.2,45,779/- directing both the appellants to

pay the same in terms of Workmen Compensation Act. This order is

questioned in this civil miscellaneous appeal by the appellants.

12. Sri Saloori Ramesh, learned counsel for the appellants and Sri

Nilothpal, learned counsel for Sri Y.V.Ravi Prasad, learned counsel for the

respondents addressed arguments.

MVR,J C.M.A.No.2001 of 2004

13. Now, the following points arise for determination:

1. Whether the death of Sri M.T.S.Kumar was during and in the course of his employment for the first appellant, at the premises of the second appellant and if it had any nexus with his employment being Causa Causons?

2. Whether the Commissioner is right in awarding compensation in favour of the respondents and against the appellants?

3. To what relief?

14. POINT No.1: The material and evidence on record adduced by both

the parties clearly established that on 03.05.2002 the deceased Sri

M.T.S.Kumar attended to the work in the premises of the second appellant,

as a worker of the first appellant. The first respondent was the contractor

pertaining to whitewashing of certain portions of the premises of the

second respondent as per Ex.A6 work order on the date of the accident.

The nature of work carried out by the deceased Sri M.T.S.Kumar on the

date of the accident finds reference in the testimony of R.W.2 Sri

Kandregula Reddy, who was a painter working for the first appellant. He

deposed that at the premises of the second respondent on 03.05.2002, they

attended the work in usual course and at about 12.50 p.m., when he along

with other workers stopped the work to have lunch, the deceased Sri

M.T.S.Kumar complained chest pain. Thus, according to R.W.2, they

arranged a vehicle belonging to the second appellant, took him to

Aganampudi Community Health Center, where he was declared brought

dead.

15. The evidence of R.W.2 is also that the deceased used to attend the

work irregularly due to sickness, who had certain differences in the family

stated on account of a love affair. It is also in the evidence of R.W.2 that

they were arranging lunch for him since he was not interested to bring food

from his house. He asserted that the deceased died due to heart attack.

MVR,J C.M.A.No.2001 of 2004

16. In cross-examination, R.W.2 stated that he did not have any

relationship or a friend of the family of the deceased. He could not give

the details of his alleged love affair when specifically questioned in cross-

examination.

17. Other two witnesses, viz., R.W.1 and R.W.3 did not depose with

reference to the alleged incident in proper. However, R.W.3 deposed that

at about 1.30 p.m. on that day when he was in the office, all these workers

gathered under a tree before going for lunch when the deceased

complained pain in the chest. He too corroborated the version of R.W.2,

the manner of attending to medical aid for the deceased.

18. This evidence apparently enabled the Commissioner to hold that the

respondents failed to prove the manner of the accident and the reason for

the death of the deceased as a fall, while attending to his work as a

painter from a height of 20 feet at the premises of the second appellant.

In that context, except the testimony of A.W.1, viz., the first respondent,

there is no other material.

19. FIR was registered in respect of this incident as seen from Ex.A1

under Section 174 Cr.P.C. in Crime No.34 of 2002 in Parwada police station

on a complaint presented by Sri N.Ratna Rao, Senior Manager of

maintenance of second appellant. Complaint of chest pain by the deceased

in the afternoon on 03.05.2002 was referred to in this FIR. Post-mortem

was carried out on the dead body of the deceased on 04.05.2002 in Area

Hospital, Anakapalli. The final opinion basing on his post-mortem, as per

Ex.A2 and Ex.R2 is that the deceased died of cardiac arrest due to anemia.

Inquest report as seen from Ex.R3 reflected the same cause for the death

of the deceased.

MVR,J C.M.A.No.2001 of 2004

20. However, with reference to this medical opinion relied on by the

appellants, the respondents relied on Ex.A4, a letter issued by

Dr.K.V.Jyothi, Civil Assistant Surgeon, Community Health Center,

Aganampudi, to the first respondent did not record the reason for the

death of the deceased as 'cardiac arrest', due to anemia. She was the

medical officer, who had seen the deceased when brought to her hospital.

She recorded the cause for the death of the deceased as seen from Ex.A4.

It is rather hard to expect the post-mortem report to carry such reason for

the death of the deceased as cardiac arrest due to anemia and a ring of

suspicion surrounds the reasons so assigned. The Commissioner took into

consideration the status of the heart as per post-mortem report being pale.

Possibility of heart becoming pale when post-mortem examination was

carried out of nearly after 24 hours of the death is not ruled out.

Nonetheless, these findings are not questioned by the respondents by filing

cross-objections or raising a specific contention in this appeal.

21. One of the contentions of the respondents before the Commissioner

was that the deceased suffered this accident unable to bear the chemical

pollution in the premises of the second respondent, where admittedly the

manufacturing activity was of chemical fertilizers. But this fact was not

established during enquiry by producing appropriate evidence on behalf of

the respondents. However, the appellants relied on the report of Forensic

Science Laboratory in Ex.R5, which reflected that the material subjected

to examination in that lab, which was collected during post-mortem

examination of the dead body of the deceased, did not make out presence

of any chemical substances.

22. In the circumstances of the present case, the findings to record as

was done by the Commissioner are that the deceased died at the premises MVR,J C.M.A.No.2001 of 2004

of the second appellant on 03.05.2002 when he was attending to the work

of whitewashing or painting along with R.W.2 and that he died.

23. Sri Saloori Ramesh, learned counsel for the appellants strenuously

contended that in the presence of such material when there is complete

failure of the respondents to establish that the deceased died in such

circumstances sought to be projected by them, his mere death cannot be

an event for application of Section 3 of Workmen Compensation Act.

Learned counsel for the appellants further contended that mere death is

not sufficient and nexus between his employment and the death should be

established as the real cause. Thus, the strain of learned counsel for the

appellants is that the deceased did not suffer fatality on account of his

employment on behalf of the first appellant at the premises of the second

appellant.

24. Sri Nilothpal, learned counsel for the respondents with equal

vehemence contended that in view of the admitted and established facts as

the death itself is proved, possibility of associating with nature of

employment at the premises of a chemical fertilizer factory, viz., the

second appellant should bear the consequences and in the circumstances

when the death was unnatural, it should necessarily be tagged on to his

employment.

25. Sri Saloori Ramesh, learned counsel for the appellants relied on

MACKINNON MACKENZIE AND CO.PRIVATE LIMITED v. IBRAHIM

MAHOMMAD ISSAK1 in an attempt to explain when application of Section 3

of Workmen Compensation Act arises. In paras - 5 and 6 of this ruling, the

observations in this context are as under:

AIR 1970 SC 1906 MVR,J C.M.A.No.2001 of 2004

"5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it." The words "arising out of employment" are understood to mean that "during the course. of the employment, injury has resulted from some risk incidental to the duties of the service, which unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered." In other words there must be a causal relationship between the accident and the employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of these factors the workman is brought within the scene of special danger the injury would be one which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Railway Co. v. Highley2 Lord Summer laid down the following test for determining whether an accident "arose out of the employment":

"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting or should have been in the position in which he was, whereby in the course of that employment he sustained injury."

1917 AC 352 MVR,J C.M.A.No.2001 of 2004

6.In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove: it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but' the evidence must be such as would induce a reasonable man to draw it. Lord Birkenhead L.C. in Lancaster v. Blackwell Colliery Co. Ltd.,3 observed:

"If the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour."

26. Further reliance is placed in REGIONAL DIRECTOR, ESI

CORPORATION v. FRANCIS DE COSTA AND ANOTHER4. Basing on the fact

situation in this ruling in para - 29, the observations recorded are as under:

"29...............

In order to succeed, it has to be proved by the employee that (1) there was an accident, (2) the accident had a causa connection with the employment and (3) the accident must have been suffered in the course of employment......................"

1918 WC & IR 345

(1996) 6 SCC 1 MVR,J C.M.A.No.2001 of 2004

27. Learned counsel for the appellants further relied on M. BHAVARAJU

v. SMT.Y.SAVITRI5 , DEPOT MANAGER, A.P.S.R.T.C., NIRMAL v. ABDUL

SATTAR , MANDERBHANI COLLIERY v. PHULWANTI DEVI ,

SMT.ANANTHAMMA v. MANAGING DIRECTOR, CO.OP. SPINNING MILLS

LTD. RAICHUR8, SHAKUNTALA CHANDRAKANT SHRESHTI v. PRABHAKAR

MARUTHI GARVALI & ANOTHER 9 , BRANCH MANAGER, UNITED INDIA

INSURANCE COMPANY LTD., HUNSUR v. SRINIVASA AND OTHERS 10 and

JYOTHI ADEMMA v. PLANT ENGINEER, NELLORE 11 . In essence, the

contention of learned counsel for the appellants basing on these rulings is

that the respondents did not establish necessary nexus and cause between

the death of the deceased and the work, which he attended to bring the

claim of the respondents within the fold of Section 3 of Workmen

Compensation Act.

28. On behalf of the respondents, Sri Nilothpal, learned counsel while

placing reliance upon JYOTHI ADEMMA v. PLANT ENGINEER, NELLORE,

referred above, and further relied on UNION OF INDIA AND OTHERS v.

S.MARIAMMA AND OTHERS 12 , DEPOT MANAGER, APSRTC v. GURRAPU

ANJAMMA , ORIENTAL INSURANCE COMPANY v. N.SAROJINI AND

OTHERS14 and DIVISIONAL CONTROLLER, NORTH EAST KARNATAKA ROAD

TRANSPORT CORPORATION, GULBARGA v. SANGAMMA 15 to repel the

contention of learned counsel for the appellants explaining what is an

accident and in given facts and circumstances of the case, the manner by

1976 (1) A P L J 23

1995-II L L J 318

1999-I L L J 937(Calcutta High Court)

1999-I L L J 1053(Karnataka High Court)

2007 LLR 185 (SC)

2007 LLR 481

2006(110) FLR 776

2004(4) ALD 599

(1999) 6 ALD 101

(2009) 5 ALT 698

2005 ACJ 445(Karnataka High Court) MVR,J C.M.A.No.2001 of 2004

which the death of the deceased Sri M.T.S.Kumar, be tagged on to the

duties he was discharging at the time of the incident.

29. The Workmen Compensation Act is undoubtedly for the benefit of

the workmen while striking a balance in between the relationship of

employers and the employees. Thus in effect the ultimate purpose of this

legislation as a welfare measure for workmen should be borne in mind in

construing fact situation in application of Section 3 of Workmen

Compensation Act. It is well known that the workmen obviously placed in

certain disadvantageous position than a mighty employee, who will have all

sources at his command to meet a challenge of this nature. These factors

should be borne in mind particularly in the facts and circumstances of this

case.

30. The deceased was a casual worker working for the first appellant at

the premises of the second appellant on the date of the incident. As

already stated, the premises of the second appellant, is involved in the

activity of production of chemical fertilizers. Going by the version of the

appellants, the deceased as well as R.W.2 along with other workmen was

attending to paining or whitewashing at such premises of the second

appellant. There is no material on record produced by the appellants to

establish that the entire premises of the second appellant was so clean and

tidy without there being any effect of the process of production of

chemical fertilizers. In the sense, the appellants did not adduce any

evidence to prove that the premises of the second appellant was free from

pollution and affect of the chemicals used in the manufacturing process.

31. In the absence of such material placed by the appellants, when the

deceased and others were engaged in the process of painting or

whitewashing right from 8.30 a.m. and upto 12.30 noon, it can well be MVR,J C.M.A.No.2001 of 2004

perceived of the situation in that premises. Possibly, it would have

affected the health of the deceased Sri M.T.S.Kumar. It was the risk he

had to face. Though the case of the respondents stood on a different

footing, before the Commissioner, there is no reason why in given and

proved facts and circumstances, the Court should not consider the matter

from the material placed by the appellants and taking judicial note of the

ground situation at the premises of the second appellant at the time of the

incident as is laid down in Mackinnon Mackenzie's case. In Shakuntala

Chandrakant Shreshti, nature of incident and cause of death are held to be

the questions touching upon the jurisdiction of the commissioner to enquire

into a claim under Workmen Compensation Act, which is essentially based

on facts in each case. It is also desirable to apply the well known principle

of res ipsa loquitor in this context.

32. The burden in these circumstances cannot be asserted to be placed

always on the respondents, viz., the applicants before the Commissioner

and it is also for the appellants, who are the respondents before the

Commissioner to explain away the situation. Placing reliance on the report

of Forensic Science Laboratory (Ex.R5) or the outcome of the Post-mortem

examination of the deceased vide Ex.A2 and Ex.R2 by the appellants would

not permit to hold that they discharged their burden. In fact, the material

so placed and relied on by the appellants is not in relation to establishing

the ground situation at the premises of the second appellant and that it

was an environment free from chemical pollution.

33. Added to it, in a matter of this nature, when it is also the duty of

the Court to strike a balance in between competing interests, it has a

positive role to play in assessing and evaluating the evidence on record to

sub-serve the cause of justice. Viewed from such angle, the factors

considered as stated above, can well be taken into consideration.

MVR,J C.M.A.No.2001 of 2004

34. Among the rulings relied on for both the parties, it is desirable to

consider the observations of Hon'ble Supreme Court in Jyothi Ademma.

Relevant for the present are the observations in paras 5 to 7 of this ruling.

"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 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.

6.The expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. In Fenton v. Thorley & Co. Ltd.16, it was observed that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A.C. in Trim Joint District, School Board of Management v. Kelly 17 as follows:

"I think that the context shows that in using the word "designed" Lord Macnaghten was referring to designed by the sufferer".

7. In the present case it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded the High Court's judgment does not suffer from any infirmity."

35. The deceased Sri M.T.S.Kumar was not suffering on account of any

heart ailment prior to the incident in question. There is no proof laid by

(1903) AC 448

(1914) A.C. 676 MVR,J C.M.A.No.2001 of 2004

the appellants in this context. The testimony of R.W.2 cannot be a

substitute to prove this fact. His evidence at best may present a scenario

that there were disputes in the family of the deceased and his food habits

were irregular. Even otherwise, having regard to his statement in cross-

examination that he did not have any acquaintance with the family of the

deceased, his version in examination-in-chief cannot as such be considered

to project a true and correct situation. Added to it, in the course of

enquiry a photograph (Ex.A6) of the deceased Sri M.T.S.Kumar was

produced and R.W.2 admitted that it was the photograph of the deceased.

In fact, it reflected that the deceased was a robust youngster and as rightly

contended for the respondents, a body builder. It is reflective of the

health condition of the deceased by the date of the incident. It excludes

the possibility of the deceased suffering from any ailment including cardiac

arrest. Nor anaemic condition of the deceased could be inferred though

the commissioner took into consideration this condition basing on post-

mortem report.

36. When all these circumstances are taken into consideration, the

inference to draw is that Sri M.T.S.Kumar, died on account of working at

the premises of the second appellant and the plausible and probable cause

for his death is thus directly connected to his work at that time. Thus

causa causons is established and nexus is built. In this background, as in

Jyothi Ademma's case, Hon'ble Supreme Court, when a contributory cause

had lead to the death of the deceased Sri M.T.S.Kumar, it has to be held

that his death arose during and in the course of employment, making both

the respondents liable.

37. Therefore, rejecting the contentions of the appellants and accepting

the contentions of the respondents, this point is held to the effect that the MVR,J C.M.A.No.2001 of 2004

deceased Sri M.T.S.Kumar died during and in the course of his employment

and that the appellants are liable to satisfy the claim of the respondents.

38. POINT No.2: In view of the findings on point No.1, for different

reasons, the order of the Commissioner has to be confirmed. While arriving

at the compensation the commissioner took into consideration not only the

age of the deceased but also minimum wages payable to him as a worker

employed in chemical industry. There is no reason to differ with the

finding so recorded by the Commissioner. Thus, this point is held.

39. POINT No.3: In view of the findings on points 1 and 2, this appeal

has to be dismissed confirming the order of the Commissioner and without

costs.

40. In the result, this civil miscellaneous appeal is dismissed confirming

the order of the Commissioner for Workmen Compensation cum Assistant

Commissioner of Labour, Circle - II, Visakhapatnam in W.C.Case No.17 of

2003 dated 24.01.2004. The Commissioner is directed to disburse the

amount so deposited, if it is not done so, in terms of Workmen

Compensation Act. No costs. All pending petitions, stand closed. Interim

orders granted earlier stand vacated.

____________________ M. VENKATA RAMANA, J Dt:17.02.2021 Rns MVR,J C.M.A.No.2001 of 2004

HON'BLE SRI JUSTICE M. VENKATA RAMANA

C.M.A.No.2001 OF 2004

Date: 17.02.2021

Rns