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K. Saraswathi Vs. S. Narayanaswami and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1984)2MLJ173
AppellantK. Saraswathi
RespondentS. Narayanaswami and ors.
Cases ReferredN.P. Lalan v. V.A. John
Excerpt:
- .....30 of the workmen's compensation act in respect of which an appeal to this court is sustainable.15. in view of the above discussion the conclusion arrived at by the additional commissioner for workmen's compensation that the deceased workman had not sustained his death by accident arising out of and in the course of his employment is correct and no interference is called for in this appeal. in the result, the civil miscellaneous appeal is dismissed. however, there will be no order as to costs.
Judgment:
ORDER

R. Sengottuvelan, J.

1. This Civil Miscellaneous Appeal is filed against the order of the Additional Commissioner for Workmen's Compensation, Coimbatore, passed in W.C. No. 44 of 1978, by one K. Saraswathi the wife of the deceased K. Guruswami who was employed as a driver under the second respondent herein. According to the appellant, K. Guruswami died in the course of his employment and as such she is entitled to compensation.

2. In the application before the Additional Commissioner for Workmen's Compensation the appellant impleaded one S. Narayanaswami as opposite party No.l, the first respondent herein, since the registration of the lorry stood in the name of S. Narayanaswami and M. Palaniappan as opposite party No. 2, the second respondent herein, since he is the actual owner of the lorry. The Oriental Fire and General Insurance Company, Madras, was also impleaded as opposite party No. 3.

3. The first respondent herein filed a counter statement before the Additional Commissioner for Workmen's Compensation to the effect that he sold the lorry to the second respondent herein and hence he is not the employer.

4. The second respondent herein also filed a counter statement before the Additional Commissioner for Workmen's Compensation. He contended that late Guruswami was working under him on a temporary basis only for 4 or 5 days prior to his death since the regular permanent driver was on leave, the late Guruswami was not working under him at any time before, that he did not receive any personal injury by accident arising out of and in the course of his employment resulting in his death and as such the appellant herein will not be entitled to any compensation in law. The cause of death is due to heart attack and it has nothing to do with the employment of the deceased under the second respondent herein and it cannot be said that the death had arisen in the course of his employment as driver under the second respondent herein. The monthly wages mentioned in the application is also disputed. Hence, the second respondent herein prayed for the dismissal of the application.

5. The Additional Commissioner for Workmen's Compensation came to the conclusion that the first respondent herein was not the employer since the lorry was sold 5 or 6 years before the accident to the second respondent herein. He held that the second respondent herein is the owner, of the lorry but the ownership was not actually transferred in his name. The lorry was insured in the name of the first respondent herein with the third respondent herein. The Additional Commissioner for Workmen's Compensation found from the documents produced by the police one Sellamuthu was driving the vehicle while the deceased and the cleaner were sitting in the back seat of the lorry on 28.2.1977, and while at Sankari the deceased complained of severe pain in his chest he was taken to the Government Hospital, Sankari, for treatment, inspite of which he died. The Additional Commissioner for Workmen's Compensation also observed that the person who actually drove the vehicle and the cleaner of the vehicle were not examined. He also observed that there is no evidence to show that the deceased suffered any particular stress or strain due to his work at the time of his death. He was not driving the vehicle though he was on duty. The Additional Commissioner for Workmen's Compensation found that the death of the deceased cannot be said to have occurred on account of an accident that arose out of and in the course of his employment. As against the said order of the Additional Commissioner for Workmen's Compensation this civil miscellaneous appeal is filed.

6. On the basis of the contention of the parties and the arguments advanced the following points arise for determination in this case:

1. Who is the employer in this case?

2. Whether the deceased is a workman as defined in Section 2(1)(n) of the Workmen's Compensation Act?

3. Whether the death was caused as a result of an accident?

4. Whether the death had occurred in the course of employment?

7. From the facts of the case it is seen that the first respondent had transferred the lorry even five or six years before the date of accident to the second respondent and that the registration has not yet been transferred to the name of the second respondent. Hence, the Additional Commissioner for Workmen's Compensation has rightly concluded that the first respondent is not. the employer and exonerated him from any liability. The second respondent was found to be actually owning the lorry at the time of the accident. The lorry was insured with the third respondent only in the name of the first respondent. The liability of the third respondent depends upon the terms of the policy and whether such liability will be affected by the transfer of the lorry by the first respondent to the second respondent is a matter to be decided in the appropriate proceedings. Hence the finding of the Additional Commissioner for Workmen's Compensation that the second respondent is the employer is correct.

8. The Additional Commissioner for Workmen's Compensation came to the conclusion that the deceased Guruswami was a workman under the second respondent. This finding is challenged by the second respondent on the ground that late Guruswami was not employed under him and he was only working for a few days as a substitute driver for the lorry. But in a statement before the police the second respondent stated that late Guruswami was his employee for 15 days prior to his death. According to Section 2(1)(n) of the Workmen's Compensation Act 'Workman' means any person who is employed on monthly wages of not exceeding one thousand rupees in any capacity as is specified in schedule II of the Act. A workman whose employment is of a casual nature for the purpose of the trade or business of the employer falls within the definition of workman in Section 2(1)(n). In this case the evidence of the second respondent before the Additional Commissioner for Workmen's Compensation is that the deceased driver was employed only for 2 or 3 days as a substitute driver. But before the police he had stated that the deceased was under his employment for 15 days prior to his death. Considering the evidence in the case the conclusion arrived at by the Additional Commissioner for Workmen's Compensation that the deceased was a workman within the meaning of Section 2(1)(n) of the Workmen's Compensation Act cannot be said to be incorrect.

9. The next point to be considered is whether the workman had died as a result of an accident arising in the course of his employment. It is contended on behalf of the second respondent that the deceased driver was not actually driving the vehicle at the time of his death, and that he was merely seated in the rear seat along with the cleaner and hence it cannot be said that the deceased had died as a result of an accident in the course of his employment. The word 'accident' had not been defined in the Workmen's Compensation Act. As regards the contention that there was no accident at all and that the death in the instant case was due to natural cause, the meaning of the word 'accident' requires to be examined. The meaning of the word 'accident' had been considered in a number of decisions. The import of the word 'accident' occurring in the Workmen's Compensation Act had been considered of in Fenton v. Thorley & Co. Ltd., 1903 A.C. 443, in which it was held that in the Workmen's Compensation Act, 1897, the word 'accident' was used in the popular and ordinary sense, and meant a mishap or untoward event not expected or designed. At page 453, Lord Lindley observed as follows:

The word 'accident' is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident meant any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word 'accident' is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events.

In the case reported in Parwatibai v. Rajkumar Mills : (1959)IILLJ65MP , a single Judge of the Madhya Pradesh High Court observed as follows:

It is well established that the word 'accident' in section3(1) of the Workmen's Compensation Act has been used in the popular and ordinary sense and means 'mishap' or untoward event not expected or 'designed'. If the injury or death from the point of view of the workman, who dies or suffers the injury is unexpected or without design on his part, then the death or injury would be by accident although it was brought about by a heart attack or some other cause to be found in the condition of the workman himself.

The above interpretation of the term accident had also been approved by a Full Bench of the Assam High Court in the case reported in Assam Rlys. & Trading Co. v. Saraswati Devi A.I.R. 1963 Gua 127.In so far as the facts of the present case are concerned the deceased workman sustained his death as a result of an unexpected mishap. Even if the death is due heart failure it can only be said to be as a result of an accident. Hence there is no difficulty in coming to the conclusion that the death in this case had occurred as a result or an accident.

10. The next point to be considered in this appeal is whether the death had occurred in the course of the employment as a driver of the lorry entitling the dependants of the deceased to compensation under the Workmen's Compensation Act. It is contended on behalf of the second respondent that the deceased driver was not driving the vehicle at the time of his death and that he was seated in the rear seat along with the cleaner and the death was due to heart failure, a natural cause not in any way 'connected with the employment.lt is seen from the evidence that the deceased was proceeding in the lorry as an alternate driver and he was seated in the rear seat and he was not actually driving the lorry at the time of his death. When the lorry travelled upto Tharamangalam from Erode with a load of timber driven by one Sellamuthu deceased Guruswami who was seated in the rear seat felt pain in his chest and immediately the driver Sellamuthu turned back the lorry and proceeded to Sankari Government Hospital and treated him, but inspite of the treatment Guruswami expired. The contention of the appellant is that there is some nexus between the death and the employment since the strain sustained by the deceased driver travelling in a lorry loaded with timber in a rough road would have contributed to the death of the deceased at least in some measure. On the other hand it is contended on behalf of the second respondent that the death of the deceased did not arise in the course of his employment since he was simply seated in the rear seat of the lorry.

11. Mr. Paul pandian, learned Counsel appearing for the appellant, relied on the following decisions in support of his contention that there is a casual connection between the death and the employment. In the case reported in Madras State Elec. Board v. A. Itachutty Amma (1965) 28 F.J.R. 286 Venkatadri, J., recognised the following principles laid down in the earlier decisions:

1. There must be a causal connection between the 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 or aggravated the injury.

3. It is not necessary that the workman must be actually working at the time of his death or that death must occur while he is working or had just ceased to work.

4. Where the evidence is balanced, if the evidence shows a great probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed.

On a review of the entire case law on the subject, the learned Judge observed that it is desirable and in accordance with the general rule that the Workmen's Compensation Act should be broadly and liberally construed; in order to effectuate their evident intent and purpose, in the application of the provisions which govern the nature and determination of the injuries for which compensation may be had, courts should favour adoption of liberal construction of the words 'by accident arising out of and in the course of his employment'.

In that case wherein an employee who was employed on the work of loading and unloading stones from a lorry suddenly felt some pain in the chest and died two days later in the hospital to which he was removed and the medical evidence showed that he was suffering from heart disease, Venkatadri, J., held that the workman died of an injury arising out of and in the course of his employment and that the employer would be liable to pay compensation under the Act.

12. In the case reported in Assam Rlys. & Trading Co. v. Saraswati Devi A.I.R. 1963 Assam 127, a Full Bench of the Assam High Court observed as follows:.

Even in cases where a person has been suffering from heart disease, if the nature of the work has contributed to the deterioration of the heart and his death, the personal injury can be said to arise out of his employment. The case where the deceased was not suffering from any previous heart disease, is to my mind a stronger case and in such circumstances if he suddenly gets a heart attack while proceeding to perform his duty, the accident can be nothing but arising out of his, employment.

In the case reported in Patel Engg. Co. Ltd. v. Workmen's Compensation Commissioner, 1977 A.C.J. 190, a Division Bench of the Andhra Pradesh High Court held that even if a worker had worked for two days before he died in an accident yet his dependants will be entitled to compensation under the Act. In the case reported in Kamala v. Madras Port Trust, 1966 A.C.J. 213, Venkatadri, 3., observed as follows:

An activity is related to the employment, if it carries out the employer's purposes or advances his interest directly or indirectly. Under the modern trend of decisions, even if the activity cannot be said in any sense to advance the employer's interest, it may still be in the course of employment, if, in view of the nature of employment, environment, the characteristics of human nature, the custom and practices of the particular employment, the activity is, in fact, an inherent part of the conditions of the employment. Sometimes the errand is made not in the performance of any duty but as a brief service.

13. On behalf of the second respondent the following decisions were relied upon: In the case reported in Gujarat State Road Trans. Corpn. v. Bai Jiviben Arjan, 1981 A.C.J. 188, the deceased Assistant Traffic Inspector was travelling in a bus plying between Rajkot and Navlakhi and when the bus was on its way to Morvi he got a heart attack. He was removed to the hospital at Morvi where he was initially treated and thereafter he took further treatment at Rajkot but ultimately he succumbed to the same on 6th June, 1972. In that case a single Judge of the Gujarat High Court held that there was no causal connection between the heart attack which the deceased got and the work in which the deceased was engaged. In the case reported in Sarangpur Cotton Mfg. Co. v. Smt. Dev Karsan : (1967)ILLJ186Guj , a single Judge of the Gujarat High Court observed as follows:

If the principle that a pre-existing disease or infirmity would not by itself disentitle the dependant of the deceased workman from claiming compensation and that if such disease or infirmity would not by itself negative the possibility of the existence of a causal connection which is required to prove a claim for compensation was right, the next question that would arise for consideration would be whether in spite of the disease there was or was not strain that was likely to be caused in the work in which the employee was engaged or the work assigned to him... The question, therefore, would really be whether it is established that the deceased died purely as a result of the disease of which he was suffering and the strain of work which he had been doing and the attack did not contribute to or accelerate his death or 'whether it was established that the deceased workman though suffering from a disease had strain of work which he was doing in the course of employment which contributed to or accelerated his death. In the former case the employer would not be liable whereas in the latter he would be.

If we apply the principles laid down in the above decisions to the facts of this case the applicant will be entitled to. compensation if the deceased Guruswami had sustained his death as a result of strain or stress suffered in the course of his employment. In this case we have to consider whether the deceased Guruswami by travelling in a lorry from Erode to Tharamangalam would have received an amount of stress and strain which would have hastened his death. If there is evidence to show that he was a heart patient then it can be said that even the minor strain involved would have contributed to his death. But there is no evidence in this case that he was suffering from any heart ailment before. Under the circumstances mere travelling in a lorry by being seated in the seat behind the driver cannot be said to give any stress or strain to the deceased Guruswami. Mr.Paul pandian, learned Counsel, contended that travelling in a loaded lorry in a rough road would have contributed to the deceased getting a heart attack. There is no evidence to show that the road was rough. In any event the deceased who was on normal health cannot be said to have received any stress or strain by travelling in a lorry which contributed to his death. In this view the finding of the Additional Commissioner for Workmen's Compensation cannot be said to be incorrect.

14. On behalf of the second respondent it is contended that under the proviso to Section 30 of the Workmen's Compensation Act no appeal shall lie against any order unless a substantial question of law is involved in the appeal and hence this appeal is not maintainable. The observation of V.R. Krishna Iyer, J., in the case reported in N.P. Lalan v. V.A. John, 1972 LI.C. 789, was relied upon, which runs as follows:

A question of fact however substantial cannot be substantial question of law. So also a simple question of law cannot be called a substantial question of law. To be so it must be of great public importance or be one which arises so frequently as to affect a large class of people or be basic to the operation of the Act itself. Where the question is covered already by precedents or the law on that aspect is well settled the mere difficulty of applying the facts to that law cannot make it a substantial question of law.

But in this case the question whether the deceased sustained his death in the course of his employment is a substantial question of law within the meaning of Section 30 of the Workmen's Compensation Act in respect of which an appeal to this Court is sustainable.

15. In view of the above discussion the conclusion arrived at by the Additional Commissioner for Workmen's Compensation that the deceased workman had not sustained his death by accident arising out of and in the course of his employment is correct and no interference is called for in this appeal. In the result, the civil miscellaneous appeal is dismissed. However, there will be no order as to costs.


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