RENUKABAI GEDAM v. MANAGER, NAGPUR TIMES — 1983 DIGILAW 366 (BOM)

JUDGMENT : Tated, J. 1. This is an appeal u/s 82 of the Employees' State Insurance Act, 1948, (for short referred to hereinafter as 'the Act') from the judgment of the Employees' State Insurance Court at Nagpur in Insurance Case No. 3 of 1973, refusing to grant to the Applicant the dependant's benefit u/s 46(1)(d) of the Act on the ground that the Petitioner failed to prove that the death due to the accident arose out of the employment. 2. The following facts are not in dispute. Deceased Hemraj was in the employment of the Nagpur Times, Nagpur for about 23 years. He was working as a foreman with the Nagpur Times. He was duly insured under the Act. His ticket No was 32-16383. He got ill in the year 1969. He received treatment from the State Insurance Dispensary at Dharampet, Nagpur. The diagnosis of the deceased was myocardial infarction. The deceased was recommended leave and medical treatment from 15th November, 1969 to 14th February, 1970. He again got ill in the month of April, 1971. He was admitted as an indoor patient in the Insurance Dispensary from 8th April, 1971, to 20th April, 1971. In the discharge card (Exh. 11), the diagnosis given is myocardial infarction. The deceased was on leave from 20th April, 1971 and received treatment from Insurance Dispensary till 29th June, 1971 when he resumed duties in the office of the Nagpur Times. Deceased Hemraj attended to his work at the office of the Nagpur Times for about six months before he died in the office on 15th December, 1971 while he was on duty. The post-mortem examination reveals that the cause of the death was heart failure with coronary insufficiency with old region of myocardial infarction. It is in the evidence that on the date of his death, he had resumed his duties at the office of the Nagpur Times at 2 p.m. He had climbed the stair-case for entering the first floor where there was the office of the Advertisement Manager and the News Editor. He was required to climb the staircase for seeing the Advertisement Manager and the News Editor in connection with his work. Shortly after he had been to the first floor by climbing the stair-case, he climbed down the stair-case and took his chair and commenced his work. He was required to climb the staircase for seeing the Advertisement Manager and the News Editor in connection with his work. Shortly after he had been to the first floor by climbing the stair-case, he climbed down the stair-case and took his chair and commenced his work. At about 2.30 p.m. foreman Ganesh (AW 3) noticed Hemraj resting his head on the table and his left arm was outstretched on the table and his right arm was clutching on his chest. Before anybody could do anything, Hem-raj collapsed and breathed his last. 3. The Applicants, who are the dependents of deceased Hemraj, had made a claim for extended sickness benefits for the period from 8th April, 1971, to 29th June, 1971 and also dependents' benefit u/s 46(1)(d) of the Act. The learned Judge of the Employees' Insurance Court allowed the claim of the Petitioners for second spell of myocardial infarction from 8th April, 1971 to 29th June, 1971 but he rejected the Applicants' claim for dependants' benefit on the ground that they failed to establish any causal connection between the death of Hemraj and his employment. Feeling aggrieved by rejection of their claim for dependant's benefit, the Petitioners have come in appeal. 4. An appeal u/s 82(2) of the Act lies to this Court from an order of Employees' Insurance Court if it involves a substantial question of law. In this case, the Court below, on the facts mentioned above and on the evidence adduced in this case, held that the Applicants failed to establish any causal connection between the death of Hemraj and his employment. Therefore, it is necessary to consider on the facts established in this case whether it is proved that deceased Hemraj suffered employment injury, as defined in Section 2(8) of the Act. 5. The employment injury is defined in Section 2(8), thus: Employment injury means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India. 5. The employment injury is defined in Section 2(8), thus: Employment injury means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India. In the present case, the learned Judge of the Employees' Insurance Court found that Hemraj died of personal injury caused by accident in the course of employment, in that he was actually on duty and working in the office of the Nagpur Times when he died. The only question arose before him for determination was whether it could be said that the deceased died of an accidental injury arising out of his employment. 6. The learned Judge referred to the decision, in Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, It is a Division Bench decision of this High Court and in that case the provisions of Section 3 of the Workmen's Compensation Act have been considered. The provisions of Section 3 of the said Act are in pari materia with the provisions of Section 2(8) of the Act. Therefore, the decisions u/s 3 of the Workmen's Compensation Act are helpful in deciding the employment injury within the meaning of Section 2(8) of the Act. In the case of Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, deceased was a watch man employed by the Port Trust Bombay, at its Pumping Station at Carnac-Bunder, Bombay and as usual he was on duty on the night of 20th August, 1951 and the hours of his duty were from 7 p.m. to 7 a.m. At 1 a.m. on 21st August, 1951 the deceased complained of pain in his chest and was asked to lie down. His condition deteriorated and at about 6 a.m. he died The medical evidence showed that the deceased was suffering from heart disease and that his death was brought about by the strain caused by the deceased being on his legs for a certain period of time. His condition deteriorated and at about 6 a.m. he died The medical evidence showed that the deceased was suffering from heart disease and that his death was brought about by the strain caused by the deceased being on his legs for a certain period of time. In that case it was held that the death of the watchman while on duty who suffered from the heart disease was due to strain caused by his standing on his legs and moving for a certain period of time during his duty hours and as such it was held that the death was due to the accident arising out of his employment. In the case of Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, , the Court stated the law thus: It is well settled that the expression 'accident' in this section must be construed in its popular sense. It has been denned as an unlocked for mishap, an untoward event which is not expected or designed. It has also been pointed out that the statute does not make a distinction between a personal injury and the accident. What the statute intends to convey is what might be expressed as an accidental injury. The next condition that has got to be satisfied is that the accident must arise in the course of the employment of the workman. He must receive the accidental injury while he is actually working for his employer. The third condition that has got to be satisfied is that the accidental injury must arise out of the employment. This last expression has led to considerable judicial discussion in England. Whereas 'in the coarse of employment' emphasizes time when the accidental injury was caused, 'out of employment' emphasizes that there must be causal connection between the employment and the accidental injury. Their Lordships further observed: It may be held that the death was the result of an ordinary strain which the deceased received while he was carrying out his normal duties. It may be urged that there was nothing exceptional which the deceased did on that particular day. Their Lordships further observed: It may be held that the death was the result of an ordinary strain which the deceased received while he was carrying out his normal duties. It may be urged that there was nothing exceptional which the deceased did on that particular day. But, as we shall presently point out, the authorities have clearly laid down that in order to come within Section 3, it is not necessary that it should be established that the workman died as a result of an exceptional strain or some exceptional work that he did on the day in question. 7. The learned Judge of the Employees' Insurance Court after noticing the facts in the case of Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, observed as follows: It may be noted that in the present case the Applicants have not adduced any medical evidence to show that the death of the insured was brought about by the strain caused to him by reason of his employment. It has also to be noted that in the above case of the Port Trust, Bombay, the deceased watchman had worked for about 6 hours when he complained of pain in the chest. However, in the instant case, the deceased had reported for work at 2 p.m. and the end came within about 35 minutes. If the end had come at the close of the shift then it could be said with some justification that the injured died as a result of strain or fatigue caused by working continuously for about 7 or 8 hours. It is said that the deceased had climbed the stair-case and collapsed when he came down. But it transpires from the evidence of Ganesh Bajirao Surpan that for about six months prior to his death the deceased was required to climb staircase at least 4-5 times a day. So he had become quite accustomed to climb the stair-case and it cannot be said that simply because he climbed the stair-case once on that day, it had put strain on his heart leading to his heart failure. The climbing of the stair-case would be regarded as the normal wear and tear of his employment. In the present case I find that the Applicants have totally failed to establish any causal connection between the death of Hemraj and his employment. 8. The climbing of the stair-case would be regarded as the normal wear and tear of his employment. In the present case I find that the Applicants have totally failed to establish any causal connection between the death of Hemraj and his employment. 8. It may be mentioned that the attention of the learned Judge of the Employees' Insurance Court was not brought to the provisions of Section 51-A which have been inserted in the Act by Act No. 45 of 1966 with effect from 28th January, 1968. Section 51-A reads thus: For the purpose of this Act, an accident arising in the course of an insured person's employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment. In view of the legal presumption provided u/s 51-A, as soon as it is proved that an insured employee died in an accident arising in the course of his employment, it has to be presumed that the accident arose out of that employment. It is not for the Applicants to prove that accident arose out of the employment. It is for the other side to rebut the presumption by showing the evidence to the contrary. Apart from the presumption arising u/s 51-A of the Act, the evidence on record satisfactorily proves that the strain of employment accelerated the death of Hemraj. 9. It is in the evidence of Dr. Kshirsagar (NAW 1) that deceased Hemraj was admitted in the Dharampeth Employees' State Insurance Corporation's dispensary on 12.4.1971 (8.4.1971 ?) and was discharged on 20.1.1971 (20.4.1971 ?). The diagnosis reveals that it was an old case of posterior myocardial infarction. The specialist's report (Exh. NAW 2) dated 18.5. 1971 also reveals that it was old posterior myocardial infarction. The report of the specialist dated 4.5.1971 (Exh. NAW 3) also shows that it was an old case of myocardial infarction and the patient complained of attacks of pain in the chest and had weakened. The report Exh. NAW 5, dated 24.6.1971 records as follows: Now patient feels better. Wants to join duties. Someone for the specialist has written, Can join the duties. Dr. Kshirsagar (NAW 1) states that he did not know what happened after 23rd June, 1971 and that the record was not available. The report Exh. NAW 5, dated 24.6.1971 records as follows: Now patient feels better. Wants to join duties. Someone for the specialist has written, Can join the duties. Dr. Kshirsagar (NAW 1) states that he did not know what happened after 23rd June, 1971 and that the record was not available. During the cross-examination, he admitted that due to absence of record, he could not say whether he had or had not examined deceased Hemraj when his case was referred to him sometime in the month of June, 1971. He was transferred and handed over the charge on or about 23rd December, 1971. Till that time he was functioning as a medical referee at Nagpur. But in the absence of his record, he could not say when the Administrative Medical Officer, Employees' State Insurance Scheme had referred the case again to him after 23rd June, 1971 till he was at Nagpur. He further admits that the extended sickness benefit is given in the case of myocardial infarction for a period of 6 months according to circulars. It is not disputed before me that a patient of myocardial infarction is entitled to sickness benefits for a period of six months. In this case deceased Hemraj was not given the benefits which, as a patient of myocardial infarction, he was entitled to. He had not fully recovered on 24.6.1971 and yet, it was mentioned on the case paper Exh. NAW 5 that the patient felt better and wanted to join duties and the specialist remarked 'can join the duties'. When the patient had not recovered and was not medically fit to resume the duties, the Medical Officer should have recorded that fact and in case the deceased wanted to resume the duties, he should have been told that he could join the duties at his peril against medical advice. No such thing was done and simply because the patient expressed his desire to join the duties, it was mentioned that 'he could join the duties'. Consequently I find that there is much force in the contention of the learned Counsel for the Appellants that though deceased Hemraj was suffering from myocardial infarction, he was not given the leave and the benefits which he was entitled to and he was forced to join the duties and the strain of his duties as a foreman accelerated his death. In any case, there is nothing in the evidence on record for holding that the presumption arising u/s 51-A of the Act that the accident arose out of the employment, has been rebutted. 10. The learned Counsel for the Appellants relied on the decision in Ajudhee Bai Vs. Employees State Insurance Corporation, In that case, the Appellant's husband was an employee of the C.I.M.M. Co. Birlanagar and died suddenly in the premises of the factory on 25.7.57. He was going to join his duties in his shift and had not begun his working. It was also common ground that the death was not result of an accident but of heart failure nor was the heart failure the consequence of a sudden shock or sudden stress or exertion during actual working. On those facts it was held that the accident did not arise out of the employment and therefore, the Appellant's claim was rejected- It may be mentioned that when that case was decided the provision of Section 51-A was not there in the Act and that decision is also not in conformity with the decision of the Division Bench of this Court in Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, Therefore that decision is not helpful in deciding the present case. The learned Counsel for the Appellants referred to the decision in Mackinnon Mackenzie and Co. Private Ltd. v. Ibrahim Mahommad Issak 1969 A.C.J. 422 (S.C.). It was the case under the Workmen's Compensation Act. Their Lordships of the Supreme Court considered the provisions of Section 3 of the Workmen's Compensation Act and laid down the law as follows: To come within the Act the injury by accident muse 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. 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, to 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. The decision in this case does not in any way support the case of the Respondents. As stated earlier, in view of the provisions of Section 51-A of the Act, as soon as the Applicants prove that the accident arose in the course of an insured person s employment, the Court has to presume, in the absence of the evidence to the contrary, that it has arisen out of that employment. As stated by me earlier, there is nothing in the evidence on record to rebut the presumption arising u/s 51-A. 11. The learned Counsel for the Respondent relied on the Division Bench decision of this High Court in Municipal Corporation for Greater Bombay v. Sulochanabai Sadashiv Joil 1978 A.C.J. 208 (Bom.). It was a case u/s 3 of the Workmen's Compensation Act. In that case, a bus starter died while on duty in the office. He felt pain in the chest at 8.45 a.m. and was immediately relieved of his work and made to lie down on the bench and as he was restless and giddy, he was removed to the hospital where he was declared dead at about 9.20 a.m. The cause of death of the deceased was never discovered to be heart failure. The duties of his post did not involve any strain and it was never suggested that the work ordinarily done by the deceased directly or indirectly contributed to the pains in the chest. Nor any particular work of that day was suggested to be the cause of such pain and the resultant death. The duties of his post did not involve any strain and it was never suggested that the work ordinarily done by the deceased directly or indirectly contributed to the pains in the chest. Nor any particular work of that day was suggested to be the cause of such pain and the resultant death. In such circumstances, it could not be held that the death was due to any injury caused in the course of employment and that the employer was not liable to pay compensation. The above case is not applicable to the facts of the present case, firstly for the reason that under the Act in view of the provisions of Section 51-A, there is a presumption that the accident arose out of employment when the Applicants prove that the accident did occur in the course of employment; secondly it has been also proved that the deceased in the present case was a patient of myocardial infarction while he was made to join the duties without affording him the leave and the benefits he was entitled to and the strain of the employment accelerated his death. 12. It may be mentioned that the learned Counsel for the Appellants relied on the decisions in Bai Shakri v. New Manekchowk Mills Company Ltd. 1958 A.C.J. 53 (Gujarat), Sarangpur Cotton Manufacturing Company Ltd., No. 1 and Another Vs. Dev Karsan (Srimathi) and Another, and the decision in Tejubai v. General Manager W. Rly, Bombay 1983 A.C.J. 661 (Gujarat). In all those cases, the workmen died during the course of their employment either on account of heart failure or pre-existing diseases affecting a vital organ and it was held that the accident arose out of the employment. 13. It may be mentioned that in the case of Sarangpur Cotton Manufacturing Company Ltd., No. 1 and Another Vs. Dev Karsan (Srimathi) and Another, Bakshi J. of Gujarat High Court considered and followed a lage number of Division Bench decisions of this High Court and held that the mere fact that the deceased workman carried any disease with him would not disentitle his representatives from preferring a claim for compensation under the Workmen's Compensation Act. The decision of the Division Bench of this Court in Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, was also considered and followed in that decision. 14. The decision of the Division Bench of this Court in Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, was also considered and followed in that decision. 14. Thus considering all the authorities relied on by the learned Counsel for the parties and also the facts established in this case, I find that the Applicants proved that deceased Hemraj suffered employment injury within the definition appearing in Section 2(8) of the Act and as such they being his dependants, were entitled to the benefits u/s 46(1)(d) in addition to the extended sickness benefits for the period from 8th April, 1971 to 29th June, 1971 allowed by the Employees' Insurance Court. 15. It may be mentioned that the learned Counsel for the Respondent submitted that none of the counsel for the parties in the Court below noticed the provisions of Section 51-A of the Act, which provides for presumption as to accident arising in the course of employment and therefore, the case was conducted on the assumption that the burden to prove that the accident arose out of employment was on the Applicants. He submitted that it was, therefore, necessary to remand the matter to the Employees' Insurance Court for allowing the Respondents to adduce evidence to rebut the presumption I am unable to agree with the learned Counsel for the Respondent that the matter needs to be remanded to the trial Court for fresh decision after allowing the parties to adduce evidence. The provisions of Section 51-A are on the statute book with effect from 28th January, 1968. Both the parties have led evidence in this case. The matter cannot be remanded for fresh trial only on the ground that the provisions of Section 51-A of the Act were not noticed. 16. In the result, the appeal is allowed with costs. The judgment and order of the Employees' State Insurance Court, rejecting the claim of the Appellants for dependants' benefit, are set aside. The claim of the Appellants for dependants' benefit u/s 46(1)(d) of the Act, in addition to the extended benefits for the period from 8th April, 1971 to 29th June, 1971 allowed by the Court below, is allowed and the non-Applicants 2 to 4 are directed to pay the dependants' benefit to the Appellants. The Appellants shall be entitled to the costs throughout.