Incab Industries Limited v. Jaigun Begum — 1992 DIGILAW 347 (PAT)

Judgment S.B.Sinha, J. 1. The appeal under Sec. 30 of the Workmens Compensation Act, 1923, arises out of an order dated March 16, 1991, passed by Mr. Shital Prasad Thakur, Presiding Officer, Labour Court, Jamshedpur, in W.C.A Case No. 1 of 1987, whereby and whereunder he directed the petitioner to pay a sum of Rs. 52,780.00 by way of compensation for the death of Md. Ismail with simple interest at the rate of 6 per cent per annum from the date of accident, i.e., July 13, 1986 till the date of payment and also for an amount of Rs. 2260.00 as expenses of the funeral and shraddh ceremony of the deceased workman and a suitable employment to the ward of the widow applicant purported to be in terms of clauses 1,2 and 3 of the memorandum of settlement (Exh. 2). 2. The appellant has also been found liable for payment of penalty under Section 4-A (3) of the Act, if further delay is made in payment of amount of compensation, i.e., if the same is not paid within three months, it would have to pay a further sum of 15 per cent of the amount of compensation by way of penalty. 3. The basic fact of the case is not in dispute. 4. Md. Ismail, husband of the applicant-respondent Jaigun Begum left home to attend to shift duties on July 13, 1985. When he reached the main gate of the factory of the appellant company and was about to enter the same, he felt down unconscious, whereafter he was removed to companys dispensary and thereafter he was removed to the Mercy Hospital in a precarious condition where he expired after five minutes. The cause of death as per the death certificate dated July 13, 1985 is said to be massive myocardial infarction and sudden cardiac arrest. 5. It is admitted that the deceased, at the time of death, was getting monthly wages of Rs. 1,351.00 and was aged about 56 years. 6. The applicant-respondent filed an application for grant of compensation presumably in terms of the said memorandum of settlement before the Deputy Commissioner of Labour Court, Jamshedpur, on January 5, 1987 but as, allegedly, the appellant did not agree to pay the aforementioned amount of compensation, the said case was sent to the Court below by the Deputy Commissioner, Labour Court, Jamshedpur, for adjudication. 7. 7. The defence of the appellant before the Court below was that there was no relation between the death of Md. Ismail and his work and thus, no compensation is payable by it to the applicant as he did not suffer any injury in an accident arising out of and in course of his employment. 8. The learned Court below formulated only one question for his consideration, namely, as to whether the death of Md. Ismail, the husband of the applicant, was due to an accident arising out of and in course of employment and whether the theory of notional extension is applicable in the case. 9. The learned Court below, upon consideration of various decisions, held : "Heart injury when brought about by a strain due to the work in the employment (and not by natural wear and tear of employment) is compensable though pre-existing condition may have been the contributory element and this is irrespective of the percentage of the part played by either of them, viz., the work and the condition." 10. The learned Court below appears to have relied upon a memorandum of settlement arrived at in respect of grant of employment to employees son/son-in-law in case of his death while in service between the Indian Cable Company and Indian Cable Workers Union, Exh. 2 and came to the following conclusions: "Thus, in my opinion, a burden of the applicant at proving causal connection between the accident and the employment as well as the compliance of the condition, obligation and incident of the employment of the deceased workman stood discharged by the above facts and the speaking circumstances of record, noted above. All the facts and circumstances and the fact that the deceased was not suffering from any previous heart ailment are more in consonance with the theory that the deceased met with accidental fall at the main gate of the factory of the company due to industrial hazard, infection, exertion and pollution of environment and consequently died some time after with the theory of natural death by sudden heart attack of massive myocardial infarction and sudden cardiac arrest because the accidental fall of the deceased-workman was caused due to the infection or pollution in the premises of the factory or the company which resulted into the death of the workman. To an extent, the principles of res ipsa loquitur can also be pressed into service." 11. The learned Court below also applied the theory of notional extension and came to the conclusion that as the concerned workman died at the main gate of the factory where he had gone to attend his duty the death must be held to have been caused in the course of employment and arising out of employment. 12. Mr. M.M. Banerjee, the learned counsel appearing on behalf of the appellant, has principally raised two contentions in support of this appeal. The learned counsel firstly submitted that in view of the fact that as natural death of the workman took place outside the factory, there was, thus, no accident nor any injury having been caused to the workman, the provisions of Sec. 3 of the Workmens Compensation Act have no application in the facts and circumstances of the case. The learned counsel, in this connection, has relied upon the decision of this Court in Hindustan Steel Construction Ltd. V/s. Nuraisha Khatoon, 1993 ACJ 501 (Patna). 13. The learned counsel next contended that the Workmens Compensation Act, 1923, being a quasi-penal legislation, the same should be construed strictly. The learned counsel in this connection, has relied upon the decision in Bombay Burmah Trading Corporation Ltd. V/s. Ma E. Nun, AIR 1937 Rangoon 45. 14. The learned counsel further submitted that in any event the memorandum of settlement, Exh. 2, could not have been enforced by the respondent before an authority under the said Act and thus he had no jurisdiction either to pay the amount of compensation for a sum of Rs. 2,200.00 or to direct the appellant to give services to a dependant of deceased employee in terms of clauses 1, 2 and 3 of the aforementioned memorandum of settlement. 15. Mr. M.Y. Eqbal, the learned counsel appearing on behalf of the respondent, on the other hand, drew my attention to paras 17 and 32 of the judgment and submitted that as the deceased was going to join his duties, the doctrine of notional extension must be held to be applicable in this case and in that view of the matter, it has to he held that the deceased died in course of his employment. The learned counsel, in this connection, has relied upon a decision of the Supreme Court in Saurashtra Salt Manufacturing Co. The learned counsel, in this connection, has relied upon a decision of the Supreme Court in Saurashtra Salt Manufacturing Co. V/s. Bai Valu Raja(1985-II-LLJ-249). 16. The learned counsel further submitted that the applicant was entitled to the amount of compensation in terms of the memorandum of settlement. The learned counsel, in this connection has relied upon a decision in Motijhari Devi V/s. Bindeshwari Prasad Chourasia, 1988 ACJ 109 (Patna). 17. In this appeal, therefore, the following questions of law arise for consideration : (a) Whether the memorandum of settlement, Exh.2, is enforceable under the provisions of the said Act ? (b) Whether in the facts and circumstances of the case, the applicant had been able to prove that the deceased died out of and in course of employment? 18. Before proceeding to consider the aforementioned questions, the admitted facts may be noted as: AW 1 stated that her husband was not suffering from any heart ailment before his death. The death certificate dated July 13, 1985 stated the cause of death as massive myocardial infarction and sudden cardiac arrest. 19. The learned Court below has placed the entire burden of proof upon the appellant and purported to have drawn adverse inference for not producing the materials to show the circumstances, nature of employment, industrial hazards or other factors incidental to employment, so far as the deceased workman was concerned. 20. The Court below further observed that the appellant did not produce the postmortem report, prescription of the doctor or the medical certificate. 21. The learned Court below further held in para 18 of the judgment that the death must have been caused due to industrial hazard, infection, exertion and pollution of environment, etc., for which there was no material on record nor any such case was made out by the applicant-respondent. 22. It may be noted that the learned Court below itself held that the burden of proof as to the cause of death by accident rests upon the applicant to the effect that accident arose out of employment as well as in the course of employment. 23. The learned Court below noticed the decision of the Supreme Court in Mckinnon Mackenzie & Co. 23. The learned Court below noticed the decision of the Supreme Court in Mckinnon Mackenzie & Co. Ltd. V/s. Ibrahim Mohammed Issak, (1970-I-LLJ-16) (SC), wherein it has been held as follows: "In course of the employment means in the course of work which the workman is employed to do and which is incidental to it, the term arising out of employment means that during the course of his employment injury has resulted from some risk incidental to the duties of the service, which unless engaged in the duty to the master, it is reasonable to believe the workman would not have otherwise suffered; and the expression arising out of the employment applies to employment as such to its nature, its condition, its obligation and its incidents, the workman may be brought within the zone of a special danger without exposing himself to an added peril by his imprudent act" 24. Recently, a learned single Judge of this Court in Hindustan Steel Construction Ltd. V/s. Nuraisha Khatoon (supra), upon taking into consideration various decisions, held as follows: "In my opinion, Sec. 3 of the Act is attracted not only in cases of physical accident or event happening externally to a workman but also in cases of event happening internally to a workman, such as failure of heart and the like. However, it is made clear that if a person dies a natural death then it could not be said that his death was caused out of his employment. But if a person suffering from some disease or ailment dies or receives injury while discharging his normal duty and employment is a contributory cause or has accelerated the death of the workman then Sec. 3 of the Act is attracted as the death is caused by an accident arising out of and in course of employment. In other words, if it can be proved on behalf of the workman that the death was caused not only by the ailment or disease but ailment coupled with employment has caused the death then the employer is liable for payment of compensation. 25. It is, therefore, clear that the question as to whether the death took place arising out of or in the course of employment is essentially a question of fact. 26. 25. It is, therefore, clear that the question as to whether the death took place arising out of or in the course of employment is essentially a question of fact. 26. As noticed hereinbefore, there is nothing on record to show that the deceased did not die a natural death as it cannot be said that he has been suffering from any ailment or disease before his death and he received injury while discharging his normal duty. 27. The Court below evidently in coming to the conclusion did not base his finding on the materials on record. 28. Now the question which arises for consideration is as to whether the memorandum of settlement as contained in Exh. 2 could be enforced before the Court below or not. 29. Exh. 2 is a memorandum of settlement in respect of giving employment to employees son/son-in-law in case of employees death while in service between the Indian Cable Company and Indian Cable Workers Union. 30. It is not clear as to whether the said memorandum of settlement is merely an agreement or is a settlement within the meaning of Sec. 2(p) of the Industrial Disputes Act, 1947. 31. Clauses 1 and 4 of the said memorandum of settlement are in relation to grant of employment to the dependant of a deceased employee whereas condition Nos. 2 and 3 whereof relate to payment of compensation. 32. Clauses 2 and 3 of the said agreement read as follows: "2. It is also agreed that in the case of an employee who dies due to an accident during the course of employment arising out of employment the following additional benefits will be given: (a) Compensation as provided under the Workmens Compensation Act will accrue to the nominee/nominees of the deceased employee. (b) Actual expenses to the extent of Rs. 2,200.00 only will be paid to meet the funeral/ shraddh expenses. (c) Companys quarter, if already allotted to the deceased employee, will be allotted to the person employed as per this agreement. 3. The benefits under Clause 2 (a) and (b) above will also be applicable in the case of an employee who dies while on duty and also to employee who is removed from his place of work in precarious condition to hospital and is declared dead by the doctor at the hospital on arrival." 33. 3. The benefits under Clause 2 (a) and (b) above will also be applicable in the case of an employee who dies while on duty and also to employee who is removed from his place of work in precarious condition to hospital and is declared dead by the doctor at the hospital on arrival." 33. In Clause 2 (c) of the said memorandum of settlement the word employment in Sec. 3 of the Workmens Compensation Act has been incorporated. Clause 3 confers all the benefits to the workmen granted to them under Clause 2 (a) and (b), therefore, in case of an employee who died while on duty and in case of such an employee who is removed from his place of work in precarious condition to hospital and is declared dead by the doctor at the hospital on arrival. 34. There is nothing on record to show that the conditions precedent for invoking the aforementioned provision had been existing. 35. It is true that the provisions of Workmens Compensation Act, 1923, are a beneficent legislation and thus same should be liberally construed but it is also well- known that such beneficent legislation cannot be extended too far so as to take the same beyond the scope, object and purport of the Act. 36. So far as a private agreement between the employer and the employee is concerned, the same can be enforced under the provisions of the said Act provided the same comes within the purview of Sub-sec. (5) of Sec. 3 thereof. 37. It is not known as to whether the said agreement was recorded by the Workmens Compensation Commissioner in the prescribed register or not as envisaged under Sec. 28 of the said Act. In absence of a contract having been recorded by the Commissioner for Workmens Compensation, evidently the same cannot be enforced in a proceeding under the said Act. 38. It appears that the learned Court below has not applied its mind to this aspect of the matter at all. In any event, the agreement as contained in the memorandum of settlement for the purpose of providing employment to the dependant of the deceased cannot be enforced in a proceeding under the Workmens Compensation Act. 39. For the reasons aforementioned, I am of the view that the aforementioned points require reconsideration at the hands of the learned Court below. 40. In any event, the agreement as contained in the memorandum of settlement for the purpose of providing employment to the dependant of the deceased cannot be enforced in a proceeding under the Workmens Compensation Act. 39. For the reasons aforementioned, I am of the view that the aforementioned points require reconsideration at the hands of the learned Court below. 40. The learned Court below, therefore, would permit the parties to adduce the additional evidence if they so pray for and arrive at a finding upon consideration of all materials on record. 41. In this view of the matter, in my opinion, the other submissions made at the Bar need not be dealt with at present. 42. This appeal is, therefore, allowed and the judgment and order passed by the learned Court below are set aside and the matter is remitted to the Court below for a fresh decision in accordance with law. 43. However, before parting with the case, I may observe that by an order dated May 9, 1991 the respondent was restrained from withdrawing the amount deposited by the appellant except a sum of Rs. 5,000.00 . If the aforementioned amount of Rs. 5,000.00 has been withdrawn by the respondent, she is not required to refund the same to the appellant. 44. The appellant, however, may be permitted to withdraw the rest of the amount without prejudice to its rights and contentions. In the facts and circumstances of the case, there will be no order as to costs.