Gujarat High Court
Bhailalbhai Mohanbhai Makwana vs Daxaben Wd/O Dahyabhai on 10 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 211 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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BHAILALBHAI MOHANBHAI MAKWANA
Versus
DAXABEN WD/O DAHYABHAI & ORS.
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Appearance:
MR PRABHAKAR UPADYAY(1060) for the Appellant(s) No. 1
MR SUBRAMANIAM IYER(2104) for the Defendant(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 10/09/2025
ORAL JUDGMENT
1. By way of this appeal, the appellant has prayed to quash
and set aside the order dated 10.10.2019 passed in
Workman Compensation (Fatal) Application No.5 of 2011
by the learned Workman Compensation Commissioner,
Vadodara.
2. Heard learned advocate Mr. Prabhakar Upadyay for the
appellant and learned advocate Mr. Subramaniam Iyer for
the respondents. Perused the record.
3. The short facts of the case are as under:
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4. The deceased Dahyabhai Madhavbhai Makvana was
working in the field of opponent No.1 and while spraying
pesticides in the field of opponent No.1, due to the effect of
pesticides, deceased expired. The incident occurred on
30.10.2010. The legal heirs of the deceased filed claim
application against the appellants - original opponents. The
claim application was resisted by opponents by filing
written statement. Claimant No.1 examined herself at
Exh.12 and also examined one witness Ramanbhai Tadvi at
exhibit 34. After considering the evidence, learned
commissioner partly allowed claim application and directed
opponents to pay compensation of Rs.3,11,793/- with
interest @ 9% p.a. with penalty @ 15% on Rs.3,11,793/-
and proportionate cost. Being aggrieved and dissatisfied
with the impugned judgment and order, the appellant
preferred first appeal being First Appeal No.20 of 2016.
Vide order dated 26.2.2019, the coordinate bench of this
Court remanded the matter back to the learned
Commissioner for a fresh adjudication on the question of
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cause of death. The permission was also granted to both
the sides to produce oral as well as documentary evidence.
On remand, the learned Commissioner, after hearing the
parties, allowed the claim application by holding that the
deceased has died due to the effect of poisonous
pesticides. Being aggrieved and dissatisfied with the
impugned judgment and award, the appellant has filed this
appeal.
5. The learned advocate for the appellant contended that
after remand, the claimants produced only a certificate
dated 24-03-2011 issued by the Medical Officer of
Samuhik Arogya Kendra, Por, Vadodara (Exh.58). It is
further contended that when the certificate was produced,
an objection was raised with regard to contents of the said
certificate. Learned commissioner, relying upon the
decision of Bipin Shantilal Panchal v. State of Gujarat
reported in 2001(3) SCC 1, admitted the documents and
gave exhibit to the said certificate. It is further contended
that except the above certificate, no other medical
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evidence is produced by the claimant to prove a fact that
the cause of death of deceased is due to effect of
poisonous pesticide. No postmortem report, treatment
papers have been produced by the claimants. The doctor
who issued certificate Exhibit 58, has also not been
examined. The learned Commissioner committed an error
by relying upon the said certificate and the oral deposition
of the witness Ramanbhai Tadvi recorded in Exhibit 34 and
came to a conclusion that the cause of death is the effect
of poisonous pesticide.
6. It is further contended that the claimant who relied upon a
receipt issued by Vadodara Mahanagar Sevasadan, dated
30.10.2010 is not proved by the claimants, and the same
being a xerox copy, a reliance cannot be placed upon such
unproved document. He has placed reliance upon decision
of Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim
Mahmmed Issak reported in 1969(0) GLEHL-SC
16256 and contended that in the case of death by
accident, the burden of proof rests on the workmen to
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prove that the accident arose out of employment as well as
in the course of employment. In the present case, in the
absence of any medical evidence in establishing the cause
of death, appeal deserves to be allowed by setting aside
the judgment and order.
7. Per contra, learned advocate for the respondent has
supported the judgment and order and contended that it is
a proved fact that on the date of incident, the deceased
was working on the field of appellants and while spraying
pesticides in the field due to effect of pesticide, deceased
fell down on the field and, thereafter, was taken to medical
officer Samuhik Arogya Kendra, Por, District Vadodara and,
thereafter, upon the medical advice, he was admitted at
SSG Hospital, Vadodara for expertise treatment. Exhibit 58
is a certificate issued by the Medical Officer of Samuhik
Arogya Kendra, which is a substantive proof that the
deceased had died due to the effect of pesticides. An
inference can be drawn from the facts based on record and
more particularly the oral deposition of the witness
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Ramanabhai Tadvi, who has stated that the deceased was
working in the field of opponents and he saw deceased
spraying pesticides in the field on the date of incident. It is
further contended that the provisions of the Workmen
Compensation Act is a benevolent legislation and a strict
proof of evidence is not required. No other submissions are
made except the above.
8. I have heard learned advocates for the respective parties
and perused the Record & Proceedings.
9. The claim application of the claimants came to be partly
allowed by the learned Commissioner on 18th January 2014,
against which the present appellants filed first appeal
being first appeal No.2908 of 2016. In Paragraph Nos.7, 8,
9 & 14, the Coordinate Bench of this Court has discussed
the facts and has remanded the matter back to the
Learned Commissioner. The relationship of employer and
employee between appellant and the deceased are upheld
by this Court and on the limited question of cause of death
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on account of the effect of toxic medicines to the
deceased, the matter was remanded back. On remand, the
claimant produced Certificate Exhibit 58, dated 24.3.2011,
issued by the Medical Officer of Samuhik Arogya Kendra,
Por, Vadodara. The said certificate states that the
deceased was admitted for unknown poisoning at 3.20 pm
and was admitted to the Samuhik Arogya Kendra, Por,
Vadodara. The State Medical Officer referred deceased to
physician at SSG Hospital Vadodara for expertised
treatment. The said certificate was resisted by the
appellant when it was produced. The learned
Commissioner, instead of deciding the objection raised by
the appellant, referred and relied upon the decision of
Bipin Shantilal (Supra) and gave exhibit to the the said
Certificate. Except certificate exhibit 58, claimant
respondent has not produced any other medical evidence,
such as treatment papers, post-mortem report. The learned
Commissioner has relied upon Exhibit 58 certificate and
the oral deposition of a witness recorded at Exhibit 34 and
came to a conclusion that the deceased has expired due to
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the poisonous pesticide and retained the earlier order
passed by the learned Commissioner dated 18.1.2014.
10. The only limited question which requires to be answered is
whether a certificate Exhibit 58 is sufficient and material
medical evidence in determining the cause of death of
deceased. The law on the question of burden of proof to
establish a fact that the injury by accident arose both out
of and in the course of employment rests upon the
workman. In the decision of Mackinnon Mackenzie and
Co. Pvt. Ltd. (Supra), in paragraph 6, the Honourable
Apex Court has held as under:
"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 (1) [1917] A.C. 352. 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., ( 1 )
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
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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."
11. The Honourable Apex Court has observed that though the
onus of proving injury by accident arose both out of and in
the course of employment rests upon the applicant. On the
other hand, must not surmise, conjuncture or guess, an
inference may be drawn from proved facts so long as it is a
legitimate inference. It is impossible to lay down any rule
as to 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 an inference.
12. Keeping in mind the aforesaid principle of law laid down by
the Honourable Apex Court, if the facts on hand are
examined, it appears that injury arose both out of and in
the course of employment. The evidence indicates that the
deceased was in the employment of appellants on the date
of accident and the relationship has been upheld and
confirmed by the Coordinate Bench of this Court while
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remanding the matter back to the learned Commissioner.
13. So far as the question of cause of death is concerned,
undisputedly, except certificate Exhibit 58 and the oral
deposition of an eyewitness, there is no other material
available on record. The contention of the appellants in the
Written Statement is to the extent of denial of the
happening of the accident in the field of appellants and
further denied the claim of the claimants on the ground
that the deceased was working in the adjoining field and
was not working on the field of the opponents.
14. Learned advocate for the appellants could not point out
from the record to establish a fact that the deceased was
not working in the field owned by appellants on the date of
accident but was working in a neighboring field. Further,
the claimants have examined an eyewitness, Raman Tadvi
Tadvi (Exhibit 34), who has deposed that he saw deceased
spraying pesticides in the field of appellant on the date of
accident and the wife of the deceased shouted for help and
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the said witness thereafter reached at the place of incident
and the deceased was sent to the hospital. This oral
deposition of an eyewitness and certificate Exhibit 58
established one fact that deceased on the date of incident
was spraying pesticides in the field of appellants and
therefore, an inference can be drawn from such material
that the cause of death is due to the effect of pesticides.
15. No contrary evidence is found on record to nullify inference
drawn by leaned Commissioner in relying upon the oral
deposition of an eyewitness and the certificate (Exhibit 58).
The Workmen Compensation Act is a benevolent legislation
which is enacted for safeguarding the interests of the
employee and / or legal representatives of the deceased
employee in getting a fair and reasonable compensation in
cases where the employee has received injuries or has
succumbed due to injury arising out of and in the course of
employment. Strict proof under Indian Evidence Act is not
required to discharge initial burden. The owner of the field
has not led any evidence that the pesticide which was
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being used in the field was not poisonous and deceased
has not died while spraying pesticides.
16. In view of the above facts and view of the above
discussions, the first appeal is rejected as no substantial
questions of law could be found in the present first appeal.
The substantial questions of law which were proposed by
the learned advocate for the appellant are more related to
the facts rather than the law.
17. Record and Proceedings, if any, be sent back to the
concerned Tribunal, forthwith. Interim Relief, if any, stands
vacated forthwith.
(D. M. DESAI,J)
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