Delhi Sweet House vs Smt. Darshana Rani & Ors.
2009 Latest Caselaw 3818 Del

 *           HIGH COURT OF DELHI : NEW DELHI

                  FAO No.125/ 2004

%     Judgment reserved on: 21ST August, 2009

      Judgment delivered on: 17th September, 2009


Delhi Sweet House,
Shop No. 1, Bhagat Sing Marg,
New Delhi
                                    ....Appellant

                      Through: Mr. S. C. Singhal, Adv.

                  Versus

(1) Smt. Darshana Rani
    Wd/o Late Sh. Kamal Dev Sharma

(2) Master Anil Sharma

(3) Master Virender Sharma
(through Smt. Darshana Rani, his next friend being
mother and natural guardian)
Both sons of Late Kamal Dev Sharma
All R/o 121-B, Rani Garden,
Shastri Nagar,
Near Geeta Colony,
Delhi-110 031
                                  ....Respondents.

                      Through: Nemo


Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

FAO No.125/2004                           Page 1 of 13
 1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         Yes

2. To be referred to Reporter or not?                      Yes

3. Whether the judgment should be reported
   in the Digest?                                          Yes

V.B.Gupta, J.

Appellant by way of present appeal has

challenged order dated 23rd January, 2004, passed by

Commissioner Workmen‟s Compensation (Short as

Commissioner). Vide impugned order, respondents

were awarded compensation of Rs. 1,22,472/- (one

lakh, twenty two thousand and four hundred seventy

two only), along with interest at the rate of nine per

cent per annum, from date of accident, till its payment.

This compensation was awarded on account of death of

deceased Kamal Dev Sharma, husband of respondent

no. 1 and father of respondent nos. 2 and 3.

2. Brief facts are, that deceased was working as

Chief Halwai with appellant, for more than twenty five

years. Appellant, besides having shop in Gole Market,

New Delhi was also having work shop in Noida(U. P).

On 6th March, 1996, deceased was performing his duty

i.e. manufacturing sweets at the workshop and while

preparing sweets on Sigri (Anghiti), due to heat of fire

and manual labour, as well as unhygienic working

conditions, received stringent heart attack. He was

immediately removed to Kailash Hospital in Noida. On

12th March, 1996 he died due to heart attack, which he

received during the course of employment.

3. In written statement, appellant stated that there

was no relationship of master and servant between

deceased and appellant, on the date of incident.

Appellant is running a Halwai shop at Gole Market,

New Delhi but kitchen of that shop was discontinued

due to objections raised by NDMC. Deceased was

employed there from 1991 onwards and left the

employment in September, 1995. All his accounts were

cleared and settled and relationship of master and

servant, between the parties came to an end.

4. The claim petition is not maintainable as

deceased died due to heart attack, which ailment is not

attributable to the employment of deceased. Heart

attack is such a problem which cannot be attributed to

or is a direct result of employment. It can be suffered

by any one. Only those case are covered under

Workman„s Compensation Act, 1923 (for short as Act),

where ailment suffered by an employee is directly

attributable to the job performed by employee. Heart

attack can never be on account of heat of fire or on

account of manual labour or on account of unhygienic

conditions. Present appeal thus is not maintainable.

5. On 21st August, 2009, matter was listed for

hearing. Only counsel for appellant appeared, while

none appeared for respondents. This matter was

shown continuously on board from 10th August, 2009

till 21st August, 2009. During this period, none

appeared for respondents. Hence, there was no option

but to proceed with the case. Accordingly, arguments

advanced by learned counsel for appellant have been

heard.

6. It is submitted by learned counsel for appellant

that impugned order is wholly erroneous and without

jurisdiction. Section 3 of the Act, provides that no

compensation shall be payable to workman in respect

of any disease, unless the disease is directly

attributed to a specific injury by accident, arising „out

of and in the course of employment‟. Certainly, heart

attack suffered by deceased, cannot be attributed to

any specific injury by accident, as admittedly no such

incident occurred in the premises, where deceased was

working.

7. It is further contended, that widow of deceased,

nowhere in her evidence stated that deceased died on

account of any disease or accident, occurred "out of

and in the course of employment".

8. In support learned counsel referred to decision of

Supreme Court in Jyothi Ademma V. Plant

engineer, Nellore and Another ; (2006) 5

Supreme court Cases 513.

9. First question for consideration is, whether there

is relationship of master and servant or not. It is an

admitted fact that earlier, deceased was employed with

the firm of appellant. Case of appellant is, since

kitchen of shop in Gole Market, New Delhi has been

closed, no work was carried out by the appellant. All

dues of deceased were settled, thus, relation of master

and servant came to an end.

10. It will be fruitful to reproduce findings of

Commissioner on this issue, which read as under:

"I have seen the certificate issued by the Manager, ESI, Local Office Noida, dated 13.2.03 received by this office on 13.2.03 where premium/contribution on behalf of the deceased has been shown for the month of 3/95 paid on 15.4.96, for the month of 9/95 paid on 15.9.96, for the month of 3/96 paid twice on 23.12.96 which is strange that the deceased workman died at Noida Hospital on 12.3.1996 the payments were deposited on account of the premium by the management in the year 1996 after the

death of the deceased workman. I have also seen that Shri Ram Narain mentioned that he received message from Computer Heart that the deceased had died and it is clear from the ESI staff that the Computer Heart was also dealing with the manufacture of Sweets and Namkeens. From these I find that there was a link with the management of Computer Heart with the management /respondent, as such I decide that the deceased was working with the respondent management".

11. In view of above findings, there is no reason to

disbelieve that on the date of accident, deceased was

employed by appellant. Since, deceased was employed

and working with appellant at the relevant time, the

death of deceased in ordinary course or even in course

of employment, cannot attract liability of the employer,

unless there is a casual connection, between death and

employment.

12. Section 3(1) of the Act which is relevant here,

reads as follows:

      "3.         Employer   's   liability        for

compensation-

(1)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 of this chapter:

Provided that the employer shall not be so liable-

(a)In respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;

(b)In respect of any injury, not resulting if death or permanent total disablement, caused by an accident which is directly attributable to-

(i)The workman having been at the time thereof under the influence of drink or drugs, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

(ii)The willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

(iii)The willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen."

13. In Jyothi Ademma (Supra) Supreme Court

held that:

"Under Section 3 (1) it has to be established that there was some causal connection between the death of the

workman and his employment. If the workman dies as 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 diseased coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable".

14. Similarly, in Mackinon Mackenzie & Co. (P)

Ltd. V. Ibrahim Mahammad Issak, AIR 1970 SC

1906, Supreme Court held;

"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 those factors the workman is brought within the zone 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."

15. In another case, Tata Engineering and

Locomotive Co. Ltd. Vs. Smt. Reba Rani

Mazumdar; (2003)2 ACC 587, Court held;

"It is well settled that mere death in ordinary course by some bodily ailment or event in course of employment cannot attract liability of the employer under Section 3 of the Act. There should be a casual connection between the employment and the death in an unexpected way in order to bring the accident within Section 3 of the Act. Though it is not necessary to establish the workman died as a result of an exceptional strain or some exceptional work that he did on that day in question".

16. As per averments made in claim petition, on 6th

March, 1996, deceased was preparing sweets in the

workshop on Sigri (Angithi) and due to heat of fire and

manual labour as well as unhygienic working

conditions, he got stringent heart attack and his

condition became serious and management got him

admitted in Hospital. Thus, the workman died due to

heart attack, which he received during the course of

employment.

17. Respondent no. 1-widow of deceased, in evidence

by way of affidavit (Ex.PW1/A) stated, that on 6th

March, 1996, while working for management at his

workshop G-17, Sector-III, Noida, U.P, deceased

suffered severe heart attack and was admitted in

Kailash Hospital. His death certificate is Ex. PW1/1,

while certificate issued by concerned Doctor is Ex. PW

1/2. Hospital slips are Ex.PW 1/3 and Ex. PW1/4,

respectively.

18. Coming to the Death Certificate Ex. PW 1/2,

„cause of death‟ is shown as "Cardiac Resp. Arrest ."

Death Certificate no where states that deceased

suffered heart attack due to heat of fire/fire stoke,

manual labour or unhygienic working conditions. There

is no evidence whatsoever, to support these averments

made in the claim petition. Respondents have not been

able to prove that Cardiac arrest was a result of the

nature of job.

19. It is well settled that mere death ordinary course by

some bodily ailment or event in "course of employment",

cannot attract liability of the employer, under Section 3

of the Act. There should be a casual connection between

"employment and the death in an unexpected way" in

order to bring the accident within Section 3 of the Act.

20. Since, deceased died as a result of heart attack,

no liability can be fixed upon the employer. The

impugned order, thus cannot be sustained and the

same is set aside. Present appeal stand allowed.

21. As per order dated 12th November, 2008,

appellant has already deposited the entire amount of

compensation i.e. Rs. 2,11,000/- before the

Commissioner. Out of this amount, except for an

amount of Rs. 75,000/-, the balance has since been

released to the claimants.

22. Considering the peculiar circumstances of the

case, it is directed that there shall be no recovery from

the respondents/claimants of any amount paid, though

claimants are not entitled to any compensation.

23. Balance amount of Rs.75,000/- lying deposited

before the Commissioner, shall be paid to the

appellant, after expiry of period of appeal.

24. Appeal is accordingly disposed of.

25. No order as to costs.

26. Trial court record be sent back.

17th September, 2009 V.B.GUPTA, J. bhatti