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Devshi Bhanji Khona Vs. Mary Burno and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported inII(1985)ACC354; (1985)IILLJ70Ker
AppellantDevshi Bhanji Khona
RespondentMary Burno and anr.
Cases ReferredM. Meckenzie v. I.M. Issak (supra
Excerpt:
- - 5. the principles to be followed in deciding employer's liability for compensation for accident arising out of and in the course of employment have been well-settled by the decision of the supreme court in m. the medical log book of the ship showed that on december 13, 1961 shaikh hassan complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically. on the 15th, however, he complained of insomnia and pain in the chest for which the medical officer prescribed sedative tablets. 6. the facts of the case decided by the supreme court, as aforementioned, could be clearly distinguished from the facts of the present case......present case? shaikh hassan ibrahim was employed as a deck-hand, a sea-man of category ii on the ship. the medical log book of the ship showed that on december 13, 1961 shaikh hassan complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically. the medical officer on board the ship prescribed some tablets for shaikh hassan and he reported fit for work on the next day. on the 15th, however, he complained of insomnia and pain in the chest for which the medical officer prescribed sedative tablets. the official log book of the ship shows that on the 16th when the ship was in the persian gulf, shaikh hassan was seen near the bridge of the ship at about 2.20 a.m. he was sent back but at 3 a.m. he was seen on the tween deck when he told a seaman.....
Judgment:

Bhaskaran, Ag. C.J.

1. The 1st respondent, the widow of one Shri Burno, filed an application, W.C.C. No. 356 of 1978, before the respondent, the Commissioner for Workmen's Compensation, Ernakulam, claiming compensation under Section 3 of the Workmen's Compensation Act, 1923 (the Act) from the appellant, on the allegation that her husband who was a headload worker, in the employment of the appellant due on 2nd May, 1974, due to an accident arising out of and in the course of his employment. That the 1st respondent's husband was an employee under the appellant who was during the material time a Shipping, Clearing and Forwarding Agent at Cochin, and that he (the 1st respondent's husband) die on 2nd May, 1974 are facts admitted by the appellant. The only question that required decision by the 2nd respondent was whether the death of the 1st respondent's husband was due to an accident arising out of and in the course of his employment.

2. The second respondent-Commissioner had initially passed orders dismissing the application. this Court, however, in appeal set aside that order and remanded the matter to the 2nd respondent-Commissioner for fresh disposal according to law, and in the light of the observations contained in that judgment. The 2nd respondent - Commissioner, after the remand, having allowed the application as prayed for, this appeal has been preferred by the employer, who figured as the opposite party in the application before the 2nd respondent. At the time when the appeal was admitted, this Court had allowed the 1st respondent to withdraw Rs. 5,000/- out of the sum of Rs. 10,000/- deposited by the appellant towards the compensation allowed in favour of the 1st respondent by the 2nd respondent.

3. On the side of the applicant before the Commissioner, Ww. 1 to Ww.5 were examined and the medical certificate, Ext. W1 marked. On the side of the opposite party, Ow.1 to Ow.4 were examined and Exts. O1 to O4 were marked. The most important piece of evidence in the case was that of the co-worker of the husband of the 1st respondent herein. According to him, on 2nd May, 1974, there was urgent shipment and the 1st respondent's husband was carrying the cashew boxes even forgoing his lunch interval; it was a very hot day; and the workman who was already suffering from heart disease fell down while on work. Following this he died.

4. The object behind the legislation being protection to the weaker section with a view to do social justice, the provisions of the Act have to be interpreted liberally, so that other things being equal, the leaning of the court has to be towards the person for whose benefit the legislation is made. Bearing this principle in mind, the expression 'accident' found in Sub-section (1) of Section 3 of the Act has to be understood as meaning a mishap or untoward event, not expected or designed. In other words, the basic and indispensible ingredient of the accident is the unexpectation. In this case, the workman who was already suffering from heart disease, as disclosed by the oral evidence of the co-worker of the 1st respondent's husband, and Ext. W1 Medical Certificate, when he was subjected to over-exertion, there was a sudden deterioration of his health which proved to be fatal. But for this over-exertion, which he was not able to bear in the state of health in which he was then, the death, following his fall while carrying the cashew boxes, would not have occurred. In this way, there is a casual connection between the employment and his death in the unexpected way. This could certainly be considered to be an accident arising out of and in the course of his employment, which would entitle the dependent-legal heir to claim compensation.

5. The principles to be followed in deciding employer's liability for compensation for accident arising out of and in the course of employment have been well-settled by the decision of the Supreme Court in M. Meckenzie v. I.M. Issak 1970 I L.L.J. 16, to which reference has been made in the order appealed against. The facts of that case in brief have been stated in the last paragraph (Paragraph 13) of the decision at page 22 of the report which read as A follows:

What are the facts found in the present case? Shaikh Hassan Ibrahim was employed as a deck-hand, a sea-man of category II on the ship. The medical log book of the ship showed that on December 13, 1961 Shaikh Hassan complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically. The Medical Officer on board the ship prescribed some tablets for Shaikh Hassan and he reported fit for work on the next day. On the 15th, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets. The official log book of the ship shows that on the 16th when the ship was in the Persian Gulf, Shaikh Hassan was seen near the bridge of the ship at about 2.20 a.m. He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed. At 6.15 a.m. he was found missing and a search was undertaken. The dead body, however, was not found either on that day or later on.

5. On the facts narrated above, the Supreme Court held at Para 13 on P. 22-23 (M. Meckenzte v. I.M. Issak)(supra):

The evidence does not show that it was a stormy night. The Commissioner made a local inspection of the ship and saw the position of the bridge and deck and found that there was a bulwark more than 3 feet. Nobody saw the missing seaman at the so-called place of accident. The Additional Commissioner held that there was no material for holding that the death of the seaman took place on account of an accident which arose out of his employment. In our opinion the Additional Commissioner did not commit any error of law in reaching his finding and the High Court was not justified in reversing it.

The observations of the Additional Commissioner, on the nature of the evidence that was available in that case, as quoted by the Supreme Court in paragraph 3 of the judgment at page 18 of the report, are as follows M. Meckenzie v. I.M. Issak (supra):

Now in the present case what is the evidence before me? It is argued on behalf of the applicant that I must presume that the man fell down accidentally. From which place did he fall down? How did he fall down? At what time he fell down? Why was he at the time at the place from which he fell down? All these questions, it is impossible to answer.

6. The facts of the case decided by the Supreme Court, as aforementioned, could be clearly distinguished from the facts of the present case. In the Supreme Court case, there was no evidence as to what the real cause of the disappearance of the workman was. There was no casual connection established between his having been found missing and the fact that he was having a history of heart ailment. In this case, in the light of the evidence gatherable from the deposition of the co-worker, examined before the Commissioner, and Ext. W1 medical certificate which showed that the workman was treated in the Gautham Hospital, Panayappally earlier, it is fairly clear that the workman was a person having heart disease; and any arduous work for long periods in the hot weather, without allowing him time even for taking food, would have contributed to the aggravation of the disease, resulting in the acceleration of death. Due to over-exertion for a long time which a person who was having heart disease could not have withstood, he fell down, and that resulted in his death, which might not have happened otherwise. There is certainly an element of casual connection between this incident and his death. The 2nd respondent-Commissioner, in our view, has decided the matter correctly when he took the view that the death of the workman was due to accident arising out of and in the course of his employment.

The result, therefore, is that the appeal fails and is dismissed; however, in the circumstances of the case, without any order as to costs.


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