Andhra Pradesh High Court - Amravati

The Feero Alloys Corporation Ltd, ... vs Smt Gara Pedma Another on 9 March, 2021

Bench: M.Venkata Ramana

              HON'BLE SRI JUSTICE M.VENKATA RAMANA

          CIVIL MISCELLANEOUS APPEAL No.128 of 2006

JUDGMENT

This Civil Miscellaneous Appeal is directed against the order of

Commissioner for Workmen's Compensation and Assistant Commissioner

of Labour, Circle-I, Visakhapatnam in W.C.No.44 of 2004 dated

24.12.2005.

2. The 1st respondent before the commissioner is the appellant.

The applicant and the 2nd respondent before the Commissioner are the

respondents 1 and 2 respectively.

3. The 1st respondent laid an application before the Commissioner

to pay compensation of Rs.3,19,600/- on account of the death of her

husband Sri late Adhinarayana allegedly out of and in the course of

employment for the appellant.

4. It was the case of the 1st respondent before the Commissioner

that her husband Sri Adhinarayana was a watchman-cum-servant working

since the year 1980 till 11.10.2003 continuously for the appellant and was

staying in the quarters provided by the appellant. She further alleged that

the 2nd respondent was the manager of the 1st appellant, while her

husband was working as such in Shriram Bhavan, Visakhapatnam

belonging to the appellant.

5. The 1st respondent further alleged that on 11.10.2003 when her

husband was on duty at Shriram Bhavan, Visakhapatnam, since he was

exposed to bitter cold, he suffered heart attack and consequently died at

10.30 p.m. on the same day when he was admitted in King George MVR,J CMA No.128 of 2006

Hospital, Visakhapatnam. The medical opinion was that her husband died

due to cardiogenic shock.

6. The applicant also alleged in her application that her husband

was receiving monthly wages at Rs.2,000/- though he is entitled for

Rs.4,000/- per month and the appellant did not offer any compensation

nor death benefits without settling their claim on account of death of her

husband. However, the appellant and the 2nd respondent asked her to

vacate the quarter in May, 2004 and she was forcibly evicted therefrom.

Thus stating, she requested for relief before the Commissioner.

7. The appellant denied the claim of the 1st respondent and to the

effect that her late husband was working for it as a servant-cum-

watchman at Shriram Bhavan, Visakhapatnam. It further claimed that this

building was used for accommodating the Vice Chairman-cum-Managing

Director of the company or their family members whenever they were

visiting Visakhapatnam, temporarily and it was never used as an office.

The appellant further alleged that the deceased was only a domestic

servant and was not a regular employee and that this building infact was

owned by M/s.R.B.Shreeram & Company Private Limited that was leased

out to the 1st respondent. It also denied that the deceased died during

and in the course of employment and claimed that the nature of the duty

did not involve any stress or stain nor it was round the clock work. It also

claimed that the compensation claimed is excessive.

8. The 2nd respondent also opposed the claim of the 1st respondent

before the Commissioner denying its case, raising identical pleas as of the

appellant. He further claimed that the deceased was being paid only

Rs.1,240/-.

MVR,J CMA No.128 of 2006

9. Before the Commissions, the 1st respondent examined herself as

A.W.1 and marked Ex.A1 to Ex.A9. On behalf of the appellant as well as

the 2nd respondent, Sri T.Kamala Rao was examined as R.W.1, who was

then Manager (Administration) working in the appellant company and who

was the General Power of Attorney holder of M/s.R.B.Shreeram &

Company Private Limited. Ex.R1 to Ex.R7 were marked on behalf of the

appellant and the 2nd respondent during enquiry.

10. The Commissioner basing on the material settled the following

issues for enquiry:

"1. Whether the deceased is a workman as per the provisions of the Act and died during and in the course of and out of employment?

2. What was the age of the deceased at the time of accident?

3. What was the wage of the deceased at the time of accident?

4. Whether the applicant entitled to completion. If so, what amount of compensation the applicant is entitled to receive?

5. Who are liable to pay the compensation?"

11. On the material, the Commissioner accepted the claim of the

1st respondent and finally awarded a compensation of Rs.1,99,007/- and

considering that the 1st respondent had received Rs.15,000/- from the

appellant, directed the appellant to deposit Rs.1,84,007/- towards

compensation by the Commissioner.

12. It is against this order, the appellant has preferred this appeal.

13. Sri C.V.Grandhi, learned counsel for the appellant submitted

arguments. None represented the respondents nor any arguments are

submitted on behalf of the 1st respondent.

14. Now the point for determination is-"Whether the material on

record is proving the jural relationship of 'master and servant' between MVR,J CMA No.128 of 2006

the appellant and the deceased Sri Adhinarayana respectively and if the

commissioner is justified in awarding compensation to the 1st respondent

making the appellant liable?

POINT:-

15. The deceased Adhinarayana was working as a driver residing in

Shriram Bhavan, which is otherwise known as 'Garividi Guest House', at

Visakhapatnam. The material on record also makes out that this Shriram

Bhavan belonged to M/s.R.B.Shreeram & Company Private Limited and

that it is a sister concern of the appellant. He was being paid a paltry sum

of Rs.1,240/- per month as wages.

16. Apart from the evidence of A.W.1 and A.W.2, Ex.R7-Wage

Particulars for August, 2003 produced through R.W.1, makes it clear that

the deceased was being paid wages on behalf of M/s.R.B.Shreeram &

Company Private Limited. It is also in the evidence of R.W.1 that these

wages were being reimbursed by the appellant.

17. A notice was issued on behalf of the 1st respondent in Ex.A5 on

30.06.2004 calling upon the appellant to pay compensation stating that

the deceased Adhinarayana joined in the Guest house referred to above

popularly known as Shriram Bhavan in Visakhapatnam in the year 1980

and that he worked continuously till he died on 11.10.2003. As per reply

notice dated 04.07.2004 in Ex.A6, Sri Adhinarayana was a driver of the

car belonging to the appellant company and that, he was residing in one

of the quarters in this guest house enjoying this rent free accommodation.

18. The material so available on record was rightly relied on by the

Commissioner to hold that the deceased Adhinarayana was an employee MVR,J CMA No.128 of 2006

of the appellant. Contra to it, the material produced by the appellant in

the course of enquiry is not sufficient and on the other hand, such

material itself is establishing this jural relationship.

19. Admittedly, Sri Adhinarayana died at 10.30 p.m. on 11.10.2003

due to heart attack. It was so declared when he was taken to King George

Hospital, Visakhapatnam and his admission in that hospital is proved by

Ex.A1.

20. The essential question now is whether the death of Sri

Adinarayana was on account of stress and strain, he was subjected to

while discharging his duties and if unable to bear the chill weather on the

date of the accident he died?

21. It was the contention of the 1st respondent before the

Commissioner that Sri Adhinarayana died of bitter cold and due to heart

attack on account of exposure to bitter cold. There is evidence of A.W.1

viz., the 1st respondent in this respect. A.W.2, a colleague of Sri

Adhinarayana also deposed in this context and who had taken him to the

hospital. The same reason was set out in Ex.A5 legal notice, of death of

Sri Adhinarayana. As seen from Ex.A6 reply issued on behalf of the

respondent, this reason leading to the death of Sri Adinarayana is not

specifically denied. Belated denial of this reason during enquiry either in

the counter filed by the appellant or the 2nd respondent or evidence let in

through R.W.1 can make good this lapse nor can be a substitute. The

duties of an attender or the driver in the guest house of this nature,

particularly when he was provided this residential accommodation be

perceived as 24/7. Therefore, when the evidence is on record to the effect

that Sri Adhinarayana was discharging his duties likewise, the same MVR,J CMA No.128 of 2006

cannot be overlooked. Possibly the employment stress suffered by Sri

Adhinarayana would have got aggravated during the cold season, on the

date of death. It can well be perceived that the weather would have been

chilly during winter time in October. Therefore, the reason for the death

can well be taken as an incidence of his employment.

22. On behalf of the appellant repelling such claim of the 1st

respondent, it is contended that there must be a nexus between his

employment and the cause of death. A mere death when the deceased

was on duty is not by itself sufficient, according to the contention of the

appellant. Reliance is placed in this context 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:

"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

AIR 1970 SC 1906 MVR,J CMA No.128 of 2006

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."

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."

1917 AC 352

1918 WC & IR 345 MVR,J CMA No.128 of 2006

23. 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......................"

24. 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.

25. The appellant did not place any material establishing that it

was not a season when the deceased could have suffered on account of

the bitter cold winter nor it would have hastened his death. Discharging

such duty during cold winter is a part of the risk the deceased had to face.

This circumstance can also be taken into consideration as per the test laid

down in MACKINNON MACKENZIE.

(1996) 6 SCC 1 MVR,J CMA No.128 of 2006

26. Reliance is also placed on behalf of SHAKUNTALA

CHANDRAKANT SHRESHTI VS. PRABHAKAR MARUTI GARVALI

AND OTHERS5 in this context. It was held that the nature of incident and

cause of death are the questions touching upon the jurisdiction of the

commissioner to enquire into a claim under the Workmen's Compensation

Act. These instances are essentially based on facts in each case. In the

circumstances, having regard to the evidence on record, it is desirable to

apply the well known principal of res ipsa loquitur. In such circumstances,

the burden shifts to the appellant to prove that the situation prevailing at

the time of death of the deceased was not such that it would have lead to

his mortality.

27. On behalf of the appellant reliance is also placed in Jyothi

Ademma vs. Plant Engineer, Nellore and others6. In paras 5 to 7 of

this ruling which are relevant for the present purpose, it is observed thus:

"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.7, 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

. AIR 2007 SC 248

. 2006(110) FLR 776

(1903) AC 448 MVR,J CMA No.128 of 2006

Macnaghten was qualified by the speech of Lord Haldane A.C. in Trim Joint District, School Board of Management v. Kelly8 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."

28. On such conspectus, when the material in this case is

considered vis-à-vis the reasons assigned by the Commissioner, awarding

compensation by the Commissioner cannot as such be found fault with.

29. Necessary parameters were considered by the commissioner.

Age of the deceased was taken at 45 years and relying on G.O.Ms.No.30

of LET & F (Lab-II) Department, dated 28.04.2001, minimum wages of

the deceased was taken at Rs.2,549/-, for a servant or watchman. 169.44

factor applicable to the age group of the deceased was considered. On

such basis, the Commissioner computed compensation at Rs.1,99,007/- in

all, payable by the respondent to the appellant. Basing on the admission

of the 1st respondent that she received Rs.15,000/- towards compensation

after deducting such amount, Rs.1,84,007/- was awarded. In the