Delhi Transport Corporation vs Manju & Ors.
2013 Latest Caselaw 5119 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                           F.A.O. No.418/2010

                                    Decided on : 8th November, 2013

DELHI TRANSPORT CORPORATION                        ...... Appellant


                       Through:   Ms.Arati Mahajan Shedha, Advocate.


                         Versus


MANJU & ORS.                                       ...... Respondents

                       Through:   Mr.N.S.Dalal, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. The appellant/DTC has challenged the order dated 21.04.2010

passed by the Commissioner, Workmen's Compensation directing the

appellant to pay a sum of `3,38,880/- along with interest at the rate of

12% per annum to the respondents on account of death of one Mr.Amrit

Rai employed as a driver with the appellant/DTC.

2. I have heard the learned counsel for the appellant as well as the

learned counsel for the respondents. The issue arising for consideration

of the court in the instant appeal is a short one and the issue is as to

whether the death of the deceased Sh.Amrit Rai, who admittedly died on

duty because of a heart attack, could be said to be an accident arising out

of and in the course of employment.

3. It may be pertinent here to mention that both the learned counsel

for the parties have tried to support their respective contentions by

placing reliance on the judgments of the Apex Court and the High Courts.

Mr.Dalal, the learned counsel for the respondent has defended the action

by placing reliance on the judgments of the Orissa High Court in Oriental

Insurance Co.Ltd. v. Subas Chandra Swain & Anr.; II (2008) ACC 67

(DB) and of the Karnataka High Court in Divisional Controller,

NEKRTC v. Sangamma & Ors.; II (2005) ACC 438 DB in support of his

contention that the death of an employee on account of heart attack is an

accident suffered in the course of and arising out of the employment. As

a consequence of this, the learned counsel for the appellant has relied

upon the judgments Jyothi Ademma v.Plant Engineer, Nellore & Anr.;

AIR 2006 SC 2830 and Shakuntala Chandrakant Shreshti v. Prabhakar

Maruti Garvali; AIR 2007 SC 248 to contend that a death on account of

heart attack simplicitor without there being any other evidence brought on

record to show that the said heart attack was on account of proximate

relationship with the nature of duties assigned to the deceased could not

be said to be an accident.

4. I have carefully considered the rival contentions of the parties and

gone through the judgment.

5. Before dealing with the judgments, it may be pertinent here to refer

to Section 3 of The Workmen's Compensation Act, 1923 which lays

down the employer's liability to pay the compensation. It lays down that

if a 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 the this Chapter. A

perusal of the aforesaid provision would show that the accident must arise

out of and in the course of employment. So these twin conditions have to

be satisfied before a heart attack or injury can be said to be an accident.

6. In Jyothi Ademma's case (supra), the question which arose for

consideration was regarding the liability of an employer to pay the

compensation where a workman had died as a result of a heart attack at

the work spot. It was brought on record that the deceased was suffering

from chest disease and was previously being treated for the said ailment.

The job of the deceased was also proved to be entailing switching on/off

of certain switches and consequently the court was of the opinion that the

nature of job did not entail any scope for any stress or strain and the death

could not be attributed to have been caused because of the accident

arising out of and in the course of employment and consequently, the

employer could not be held to be liable to pay compensation. The cause

of the death was held to be the natural consequence of the disease with

which he was suffering. Accordingly, the liability fastened on the

employer was set aside.

7. In Shakuntala Chandrakant Shreshti's case (supra) also, the

question was regarding the liability of the employer to pay the

compensation under Section 3 of the Workmen's Compensation Act,

1923 on account of the death of the deceased because of the massive

heart attack and the Supreme Court held that the circumstances must be

established that the death of the deceased was caused because of the

stress and the strain of his work and in the said case, the deceased was

working as a cleaner in the vehicle he was travelling. It was observed by

the court that merely because of travelling in a bus as a cleaner in itself

cannot a ground to infer that the job of the deceased was strenuous in

nature and until and unless evidence in this regard is brought on record, it

cannot be assumed that he had suffered the death as a consequence of

accident arising out of and in the course of his employment.

8. The two Division Bench judgments one of Orissa High Court in

Oriental Insurance Co.Ltd.'s case (supra) and the other of the Karnataka

High Court in Divisional Controller, NEKRTC's case (supra) have held

in the facts of those two cases that the deaths, which had admittedly been

caused because of the heart attack, were in the nature of duties assigned

to the deceased of such a nature that it added stress and strain to his mind

and consequently it was held to be arising out of and in the course of

employment. The party concerned had brought on record evidence to the

effect that there was a causal relationship between the heart attack

suffered by the deceased because of the discharge of his duties assigned

to him meaning thereby that unless and until there is evidence brought on

record showing any proximate connection between the nature of duties

assigned or being discharged by the incumbent and the consequent death

of the deceased, the court will not assume as a matter of course that the

death of the deceased which had taken place because of the heart attack

could be treated to be an accident. In Oriental Insurance Co.Ltd's case

(supra), the Commissioner, Workmen's Compensation had recorded a

finding to the effect that the death of the deceased had taken place in the

course of or arising out of the employment. That being a finding of fact,

the Division Bench was perfectly right in awarding the compensation in

both these cases. Thus, a perusal of the aforesaid authorities would

clearly show that suffering of a heart attack by an employee while on

duty ipso facto cannot be treated to be an accident and arising out of and

during the course of employment unless and until a causal relationship is

positively established by the beneficiaries/legal heirs of the deceased on

record which is accepted by the Commissioner, Workmen's

Compensation as the basis for having suffered the heart attack. In the

instant case, the Commissioner, Workmen's Compensation has not at all

dealt with this aspect of the matter. He has only noted the fact that the

deceased had died because of the heart attack while he was on duty and

therefore this has to be treated as an accident. No reasoning is given by

him to the effect that there was any causal relationship between the duties

assigned to the deceased and the sufferance of the heart attack by him. It

was the case of the respondent that the appellant who was admittedly

employed as a driver was driving the vehicle or while on duty because of

certain reasons, he was put to additional stress and strain because of

which he suffered a heart attack. The heart attack could have been

suffered by the deceased as a normal disability suffered by any person.

There is no finding of satisfaction of the twin requirement that the death

must arise out of and during the course of employment returned by the

Commissioner, Workmen's Commissioner and simply because of the

death of the deceased, no liability to pay the compensation can be

fastened on the appellant.

9. I feel that the order which has been passed by the Commissioner,

Workmen's Compensation is a non speaking order on this aspect and is

bereft of any logic or reasoning and, therefore, it cannot be accepted to be

legal and meeting the requirements of Section 3 of the Workmen's

Compensation Act, 1923. Accordingly, I accept the appeal of the

appellant and hold that the respondents have not been able to prove that

the death of the deceased which occurred on account of the heart attack

could be treated to be an accident in the absence of any causal

relationship between the duties which he was supposed to perform on the

date of the accident and it could not be treated as an injury arising out of

and in the course of employment and hence the impugned order is

unsustainable in the eyes of law. I accordingly set aside the impugned

order. So far as the amount which has been deposited by the appellant, if

not at all released to the respondent, shall be refunded back to the

appellant.

10. For the foregoing reasons, I accept the appeal of the appellant and

set aside the impugned judgment and decree dated 21.04.2010.

V.K. SHALI, J.

NOVEMBER 08, 2013 dm