Subhadra Bai And Ors. vs Maharashtra State Road Transport ...
2003 Latest Caselaw 594 Bom

JUDGMENT

D.S. Zoting, J.

1. This appeal is directed against the judgment and order dated 26.8.1985, passed by the Commissioner, Workmen's Compensation Cases, Latur in Application No. 1 of 1983, whereby the application filed by the present appellants who are the legal representatives of the deceased Ganpatrao Suryawanshi, came to be rejected.

2. The case of appellants in short is that late Ganpatrao Suryawanshi was serving as driver, in the respondent Corporation. He was entrusted with the duty to take S.T. bus from Latur to Aurangabad on 5.10.1978 and to complete the second trip on the next day, by way of return journey from Aurangabad to Latur. In pursuance of the duty entrusted to the deceased Ganpatrao, he left Latur with S.T. bus at 11.55 a.m. and reached Aurangabad at about 6.30 p.m. After completing the first trip of journey up to Aurangabad, he left the bus in the depot of Aurangabad and started going to the house of his daughter at Aurangabad. He made a complaint of severe pain in his chest as soon as he reached at Aurangabad, and, therefore, the conductor had accompanied him, while coming to the house of his daughter. According to the appellants, Ganpatrao died because of stress and strain in duty during the course of his employment. He died at about 11 p.m. on the very day, i.e., on 5.10.1978. His body was sent for post-mortem examination. The Medical Officer performed post-mortem examination and he opined that cause of death was due "left coronary artery thrombosis with atheroslerosis of aorta III degree". According to appellants, Ganpatrao died when he was on duty and during the course of his employment, therefore, respondents are liable to pay compensation to them. They submit that deceased Ganpatrao was getting monthly salary of Rs. 700 and they claimed the compensation to the tune of Rs. 25,000.

3. The respondents denied the liability and resisted the claim by taking the stand that it was the natural death of Ganpatrao which no way was connected with his employment. The respondents denied that Ganpatrao died due to stress and strain while performing his duty. According to the respondents, after parking the bus at Aurangabad, no work was assigned to Ganpatrao and as such there was no possibility of Ganpatrao receiving any stress to his brain and body after 7 p.m. He never complained to any authority of the S.T. Department about his disease, nor he applied at any time for leave immediately prior to his death on that count. It is also submitted that he was never allowed to work more than eight hours in a day. It is submitted that the death of Ganpatrao has no causal connection with the duty and as such the appellants are not entitled for any compensation under Section 3 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act').

4. In view of the pleadings of both the parties, the learned Commissioner framed the issues. The original applicants (present appellants) had examined four witnesses, namely, Subhadra Bai, Exh. 36, Mangala, Exh. 42, Shivaji, Exh. 46 and Medical Officer Ramkrishna, Exh. 48. Respondents have not adduced any evidence either oral or documentary before the Commissioner.

5. After assessing the evidence produced in this case, learned Commissioner held that Ganpatrao died as a natural result of disease from which he was suffering and there is no causal connection between the injury and employment and as such the Commissioner has rejected the claim of the original applicants.

6. Being aggrieved by the said judgment and award rejecting the claim of the heirs of the deceased, they have preferred this appeal, challenging the said judgment and award.

7. Heard Mr. S.B. Bhapkar, the learned counsel for the appellants and Mr. P.K. Joshi, learned counsel for the respondents.

8. Mr. S.B. Bhapkar, learned counsel for the appellants contended that learned Commissioner was in error in holding that there is no causal connection between the death of deceased Ganpatrao and his employment. He submitted that the evidence produced by the appellants is sufficient to show that the accident producing injury arose both out of and in the course of employment and there is a causal connection between the death of the deceased and his employment.

9. Mr. P.K. Joshi, the learned counsel for the respondents, has not disputed to the fact that deceased Ganpatrao was working as driver in the respondent Corporation and as such he was a 'workman' as defined in Section 2(1)(n) of the Act. It is also not disputed that he was entrusted with the duty to complete the trip of journey from Latur to Aurangabad on 5.10.1978 and next trip from Aurangabad to Latur on the next day, i.e., on 6.10.1978. During the period of this duty, he died of heart attack. Therefore his heirs made application under Section 3 of the Act for compensation. The learned counsel for respondents contended that the deceased Ganpatrao completed first trip and he died of heart attack at the residence of his daughter despite receiving medical treatment and as such respondents are not liable to pay compensation as per provisions of Section 3 of the Act.

10. Learned counsel for the appellants contended that as soon as the deceased Ganpatrao completed first trip, he was complaining to the conductor that he is suffering pain in his chest and it has come in evidence of the conductor that in view of such a complaint, the conductor had accompanied him in autorickshaw while going to the house of daughter of deceased Ganpatrao at Aurangabad. He further submitted that it has come in the evidence of Dr. Ramkrishna, Exh. 48, that due to stress there was clotting of blood in the artery which has resulted in causing death of the deceased Ganpatrao and the said clotting occurred when deceased Ganpatrao was driving the bus and as such according to learned counsel for the appellants death of workman as a result of injury is an accident arising out of and in the course of employment of the employer and the heirs of the deceased are entitled for compensation under Section 3 of the Act.

11. Section 3(1) of the Act reads as under:

"If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions..."

There can be good deal of discussion on the meaning of the phrase "arising out of and in the course of employment" appearing in Section 3 of the Act. The significant principles are set out as under:

(1) There must be connection (causal) between injury and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

(3) It is not necessary that the workman must be actually working at the time of death.

(4) If it satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed.

12. Thus, it is clear that the accident producing injury must arise both out of and in the course of the employment, and whether or not it falls within the description is a question of fact. Therefore, it is necessary to refer to the facts in this case. As already stated, the deceased Ganpatrao was entrusted with the duty as a driver of the bus to complete one trip of journey from Latur to Aurangabad and the second trip was to begin as return journey on the next day. The witness No. 3 Shivaji, Exh. 46, was the conductor in the said bus on 5.10.1978 driven by deceased Ganpatrao. He stated that they left Latur around 11.45 a.m. and reached at Aurangabad at 6.15 p.m. He has further stated that on reaching Aurangabad, Ganpatrao Suryawanshi, the driver of the bus informed him that he was feeling uneasiness and, therefore, he had accompanied him in autorickshaw up to the house of his daughter and after leaving him at the house of his daughter, he had returned back in the same autorickshaw and at about 11.30 p.m. he came to know that Ganpatrao died. On receiving the said information, he informed Depot Manager, Aurangabad, who in turn sent a message to the Depot Manager, Latur.

13. The Medical Officer Ramkrishna, PW 4, gave evidence that he performed the post-mortem examination of deceased Ganpatrao and on examination he noticed that there was no external injury. However, on internal examination, he noticed that there was narrowing of coronary artery. He opined that Ganpatrao died due to thrombosis to left coronary artery with atherosclerosis aorta. The post-mortem report is at Exh. 51. He made it clear that if there is excess strain and stress in the physical activities then there will be thrombosis in coronary aorta and due to stress and strain clot is developed in the blood vessel of the heart. He has expressed his opinion in clear terms that the process of clotting of blood must have started 6 to 8 hours before the time of death. In the cross-examination he has made it clear that whenever there is stress and exertion due to more physical activities the process of clotting starts. He further made it clear that it is a fact that no sooner there is exertion the process of clotting of blood starts.

14. From the certificate issued by Dr. Choridya, who treated deceased Ganpatrao on 5.10.1978, it appears that Ganpatrao died due to cardiac and respiratory collapse at 11 p.m.

15. It is clear from the evidence of the Medical Officer Ramkrishna, PW 4, that due to exertion process of clotting of blood starts and in the present case, it must have started 6 to 8 hours before the time of death of the deceased. As it is evident that Ganpatrao died at 11 p.m., the process of clotting of blood must have started between 3 and 5 p.m. It is in evidence that deceased Ganpatrao was driving the bus from 11.45 a.m. to 6.15 p.m. Thus, it is clear that the clotting of the blood started when he was performing his duties as a driver and that clotting of blood resulted in the death of the deceased and as such it is clear that the stress and strain received by the deceased Ganpatrao while performing his duties as a driver had contributed to his death. It is thus prima facie established that deceased Ganpatrao suffered internal injury during the course of his duty resulting in heart attack and ultimately his death. No evidence was led by the respondent in rebuttal.

16. The question is whether such event can be called an accident. Significantly, the word 'accident' is not defined in the Act, therefore, it has to be construed in its proper sense. Same point arose for consideration before M.P. High Court in the case of National Mineral Development Corporation, Bailadila Iron Ore Project v. Bindi Bai Nagesh, (1997) Lab IC 2519, and it is observed at para 9 as under:

"...An 'accident' is an event which belongs to the realm of the unforeseen and the unexpected. It dons the colours of mishap when the consequences are untoward. Therefore, anything which happens out of the ordinary would amount to accident. A person suffering from heart ailment may suffer cardiac arrest apparently without any physical stress or strain on his part. Such an event may not be called an accident because cardiac arrest may be assigned to natural cause resulting in illness, specially when there is lack of any datum as to the cause which accelerated the cardiac arrest. However, when there is data before the court to the effect that a person was put to stress and strain just before he suffered the cardiac arrest, in a situation in which, there was no prior complaint of pain in chest or uneasiness or any other symptom signifying an onset of heart attack, it can be held on the basis of preponderance of probabilities that the stress and strain might have accelerated the heart disease. So in this case, the deceased was found to be apparently hale and hearty and without any complaint about his heart condition, when he joined the duty at 2 p.m. He worked up to 4 p.m. Something must have transpired between this period which caused the heart attack. It is reasonable to hold that cause of heart attack was physical stress and strain sustained by the deceased while working at the height of 150 feet on the conveyer. Thus the 'causal' link is provided for the event of death. The death of Sukhru Ram Nagesh was contingent though unforeseen."

17. In the case of Tejubai v. General Manager, Western Railway, Bombay, 1983 ACJ 661 (Gujarat), Gujarat High Court has held that:

"The word 'accident' means an untoward mishap or event which is not expected or designed by the workman. 'Injury' means physiological injury. Accident and injury are distinct in cases where accident is an event happening externally to a man but injury may be an event happening internally to a man and in such cases 'accident' and 'injury' coincide. Such cases are illustrated by failure of heart, bursting of an aneurysm and the like, while the workman is doing his normal work. The connection between the injury and the employment may be furnished by ordinary strain of ordinary work if the strain did in fact contribute to or accelerate or hasten the injury."

I fully agree with the views expressed by M.P. High Court and Gujarat High Court in above referred cases.

18. The leading case of Laxmibai Atmaram v. Chairman and Trustee, Bombay Port Trust, , related to a heart patient watchman of the Port Trust, who in the midst of his duty hours in the midnight complained of a pain in the chest and who died in the morning even though he was made to lie down after the pain. The Commissioner had rejected the claim holding that it was a case of natural death. The High Court in appeal set aside the order taking a view that heart injury was accelerated by strain of work and it was a case of death by disease as well as the employment and not by disease simpliciter, there was a causal connection between the death and employment and that connection was sufficient to attract the liability of the employer under Section 3.

19. In the present case, the balance of probabilities are in favour of the deceased and in view of the evidence discussed above, it can safely be held that more probable conclusion is that there was a connection between injury and employment. It is not in dispute that the deceased was a workman in the employment of respondents and he died during the duty period and medical evidence revealed that he died as a result of heart failure. From the evidence it is clear that he was engaged in the work and he died during the course of his duty and while completing first round of his duty, he complained of the chest pain.

20. In a case of Zubeda Bano v. Divisional Controller, Maharashtra State Road Trans. Corporation, , decided by Division Bench of this court under identical circumstances, where death of driver of M.S.R.T.C. was caused while he completed one trip of journey and was to begin the next and his body found lying on bonnet and steering wheel it is held, that death of driver arose 'out of and in course of employment', as contemplated under Section 3 of the Act and hence the death was compensable by the employer.

21. Thus, death by heart attack is an accident is now well established by series of judicial pronouncements made from time-to-time. If the workman died of heart attack, there was a pre-existing heart condition which was aggravated by the strain of work of the deceased while performing his duties which resulted in his death and as such there is a causal connection between the injury and the accident which has been construed in wider sense as a mishap external or internal not expected or designed by the victim. The accident in the instant case was 'failure of heart'. Considering the evidence on record it is obvious that the accident was in the course of the employment and, therefore, it can be said that it arose during the course of the employment within the meaning of Section 3(1) of the Act.

22. Under these circumstances, disagreeing with the view taken by learned Commissioner, I hold that the death of the deceased Ganpatrao arose out of and during the course of the employment as contemplated under Section 3(1) of the Act and hence the death was compensable by the employer M.S.R.T.C. Under Section 4 of the Act, the liability arose as soon as the accident had taken place. In this case the accident had taken place on 5.10.1978. The legal heirs of the deceased have claimed compensation of Rs. 25,000 (rupees twenty-five thousand only) which can be said to be a reasonable and the same is within the limit. Section 4A of the Act permits to grant simple interest at the rate of 6 per cent per annum on the amount due.

23. To conclude, the appeal is allowed. The judgment and order dated 26.8.1985 passed by the Commissioner, Workmen's Compensation Cases, Latur in Application No. 1 of 1983, is hereby quashed and set aside. Claim of the heirs of the deceased Ganpatrao is allowed.

24. The respondents are directed to pay compensation of Rs. 25,000 (rupees twenty-five thousand only) with interest thereon at the rate of 6 per cent per annum from 5.10.1978, with costs throughout.