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2001 DIGILAW 452 (KER)

Chandra v. Moongalar Estate

2001-08-17

R.RAJENDRA BABU, V.P.MOHAN KUMAR

body2001
Judgment :- V.P. Mohankumar, J. The substantial question of law raised in this appeal is whether the death of a workman due to aggravated chronic obstructive airway disease would be described as accident arising out of and in the course of employment coming within the ambit of S.3(1) of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act), the entitle the legal heir to claim compensation thereunder. The brief facts are as under. 2. The wife of the deceased workman is the appellant. The workman Chellaswamy was employed in the estate of the respondent as a Tractor Driver. He used to work in the shift from 2 pm to 9 p.m. everyday carrying tea leaves plucked from the plantation to the factory. It was alleged that on 7.8.1993 he suffered a personal injury in that on 7.8.1993 after coming back from his place of employment at about 9 p.m. he complained of severe chest pain, that he was taken to the estate dispensary from where he was taken to the employer's hospital where he was under treatment and that he was referred to Kottayam Medical College where he breathed his last on 21.9.1993. The death was described as arising out of and in the course of his employment. The appellant stated that she is the dependant of the deceased, that at the time of his death he was paid Rs. 1,200/- as monthly wages and claimed compensation to the extent of Rs.75,000/-. 3. After preliminary examination, notice was sent to the respondent. The employer appeared and filed written statement. In the written statement filed by the respondent, it was stated that the deceased did not meet with any accident arising out of and in the course of his employment while employed in the estate on 7.8.1993, that he did not suffer a heart attack on 7.8.1993 as alleged and that he did not the due to the heart attack. The respondent admitted that the deceased was on duty on 7.8.1993 and he completed his work as usual, that there was no report of any accident. They denied their liability to pay any compensation. 4. Three witnesses were examined on the side of the claimant as AW1, AW.2 and AW3 and three documents were marked as Exts. Al to A3. On the side of the employer two witnesses were examined as RWs.1 and 2. They denied their liability to pay any compensation. 4. Three witnesses were examined on the side of the claimant as AW1, AW.2 and AW3 and three documents were marked as Exts. Al to A3. On the side of the employer two witnesses were examined as RWs.1 and 2. Issues were framed and one of the issues framed is as under: "Whether the death of the deceased Chellaswamy was due to heart attack on account of the accident which arose out of and in the course of his employment under the opposite party?" The above issue was answered stating that the workman did not the on account of the accident arising out of and in the course of employment. On this finding the application was rejected. Aggrieved, the claimant has come up in appeal. 5. We have heard Mr. T.C. Krishna, learned counsel for the appellant and Mr. Antony Dominic, learned counsel for the respondent-Manager. 6. The documents produced shows that the deceased was a chronic asthma patient. It is not in dispute that he was suffering from Asthma. It is also in evidence that he was taking medicines for the ailment. When the claimant was examined she has stated as under: Thus it is admitted that this is a case where the deceased was an Asthma patient. Medical evidence of rw1 also was to the effect that the deceased was brought to the hospital suffering from breathlessness and after certain treatment he was directed to be hospitalised by the doctor at the Medical College. The Medical Officer stated that: "Ext.A3 Certificate Chromic obstructive airway disease The question to be considered is whether the death of an Asthma patient who dies due to the aggravation of the illness could be said that he died due to an accident arising out of and in the course of employment. 7. The term "arising out of and "in the course of the employment" has to be understood conveying the meaning that the particular cause that resulted in the accident was created or caused by the employment. The illness causing death should have a casual connection with the employment. This expression has received judicial interpretation fitted in various factual background and the Supreme Court in M Mackenzie v. I.M. Issak (AIR 1970 SC 1906) states in this behalf as under. The illness causing death should have a casual connection with the employment. This expression has received judicial interpretation fitted in various factual background and the Supreme Court in M Mackenzie v. I.M. Issak (AIR 1970 SC 1906) states in this behalf as under. We may profitably advert to the following passage occurring therein: "To come within the Act the injury by accident must 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 casual 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, 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 different, 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....". We are of the view that the meaning of the expression "in the course of employment" should be understood as coloured by the words "arising out of. In other words, unless the accident has arisen out of and in the course of employment, it is not possible to hold that the accident will stand covered by S.3(1) of the Act. An accident can be said to arise out of and in the course of an employment only if it was created or caused by the employment. That is what is emphasised in the above said Supreme Court judgment. The above interpretation is again reiterated by the Supreme Court in Regional Director, ESI Corporation & Ann v. Francis De Costa & Ann (AIR 1997 SC 432). That is what is emphasised in the above said Supreme Court judgment. The above interpretation is again reiterated by the Supreme Court in Regional Director, ESI Corporation & Ann v. Francis De Costa & Ann (AIR 1997 SC 432). Their Lordships interpreted the expression "in the course of employment" as follows: "8. The other words of limitation in sub-s.(8) of the S.2 is "in the course of his employment". The dictionary meaning of "in the course of "is" during (in the course of time, as times goes by), while doing "(The Concise Oxford Dictionary, New Seventh Edition). The dictionary meaning indicates that the accident must take place within or during the period of employment." If this principle is juxtaposed in the instant case, the heart ailment suffered by the husband of the claimant, the worker which is shown to have resulted in his death has a casual relationship with his employment. In other words, the nature of his employment has created or caused the heart ailment, the end of which was his death. 8. We will now examine as to whether the accident was as a result of an accident which can be said to arise out of and in the course of employment. In an article published in the journal of American Medical Association, Volume 278, page 1855-1873 we find the following passage: "For unknown reasons, the morbidity and morality from asthma are increasing in many parts of the world, making it a global health concern. The heterogeneous nature of the clinical manifestations and therapeutic responses of asthma in both adult and pediatric patients indicate that it may be more of a syndrome rather than a specific disease entity. Numerous factors, including viral infections, allergen and irritant exposure and exercise among others, complicate both the short and long term management of asthma. Therapeutic intervention has focussed on the appreciation that airway obstruction in asthma consists of bronchial smooth muscle spasm and variable degrees of airway inflamation characterized by edema, mucous secretion and the influx of a variety of inflammatory cells. Choosing appropriate medications depends on the disease severity (intermittent, mild persistent, moderate persistent, severe persistent) patterns of disease activity (exacerbations) relating to viruses, allergens, exercise, etc.) and the age at onset (infancy, childhood, adulthood)." The report states that patients at any level of severity can suffer from minor to severe exacerbations. Choosing appropriate medications depends on the disease severity (intermittent, mild persistent, moderate persistent, severe persistent) patterns of disease activity (exacerbations) relating to viruses, allergens, exercise, etc.) and the age at onset (infancy, childhood, adulthood)." The report states that patients at any level of severity can suffer from minor to severe exacerbations. It states that even a patient with mild intermittent asthma may experience life threatening exacerbation between long periods of normal lung function and absence of symptom. 9. We may also advert to the following passage from "Davidson's Principles and Practice of Medicine", 17th edition. At page 332 it is stated as under: "Chronic bronchitis develops in response to the long-continued action of various types of irritant on the bronchial mucosa. The most important of these is cigarette tobacco smoke but others include dust, smoke and fumes occurring as specific occupational hazards or as part of a general atmospheric pollution in industrial cities and towns. Infection is sometimes a precipitating factor in the onset of chronic bronchitis but its main role is in aggravating the established condition." Again the same Author at page 333 states as under: "Chronic bronchitis is usually a progressive disease, punctuated by acute exacerbations and remissions and eventually causing respiratory and right heart failure. Some patients the within a few years of the onset of symptoms; others survive for many years with gradually diminishing respiratory reserve." The Author indicates to abate the cause for such progressive Asthma and to avoid dusty and smoke-laden atmospheres, which in the case of the Worker in question, may involve a change of occupation itself. It can therefore be concluded from the above passage that an aggravated form of asthama can lead to a heart attack. 10. Admittedly the deceased was employed as a driver of a tractor. It is common knowledge that the fumes of the tractor is contaminated by carbon monoxide and other irritant mixture of gas produced by the burning of diesel. Constant exposure to it can be an irritant causing mild intermittent Asthma. A person who is a chronic Asthma patient and works as a driver in an open and exposed atmosphere has every chance of aggravating the disease. The natural result could not be a fatal accident. Therefore it could be safely concluded that a person suffering from asthma if exposed to polluted atmosphere could aggravate his disease which would result in death. The natural result could not be a fatal accident. Therefore it could be safely concluded that a person suffering from asthma if exposed to polluted atmosphere could aggravate his disease which would result in death. The worker's situation in the present case as a tractor driver has aggravated his illness of asthma causing ultimately his slow death. In other words, the asthma which was the by-product of his employment was the cause of his death. No fatal accident was caused by the Asthma which illness arose out of and in the course of employment and the death arising therefrom is a death arising out of and in the course of employment within S.3 of the Workmen's Compensation Act. We are therefore of the view that the finding that the death of the worker did not arise out of and in the course of employment has to be set aside and the appropriate course may be to remit back the matter to the Workmen's Compensation Commissioner for fresh disposal. 11. But we do not think that in this case at this distance of time this would be a proper course to adopt. The death occurred on 21.9.1993. Nearly 8 years have elapsed since then. If it concluded that the death was one arising out of and in the course of employment, all that is needed to be done is to calculate the compensation payable adopting appropriate multiplier and as such no further factual investigation need be done in the matter. It is not in dispute that the workman was an asthma patient. It is also not in dispute that the deceased was working as a tractor driver late hours and on the last day he worked as such as well. Admittedly, after his disablement on 9.8.1993, he did rejoin duty even for a single day before his death. Therefore taking into consideration all the circumstances we are of the view that there is no need to remit the case back to the Workmen's Compensation Commissioner for fresh disposal and a finality can be arrived on the dispute at this stage itself. 12. The workman was 55 years of age on the date of his death. The factor for working out the compensation in the case of the deceased as per the Act is 135.50. His monthly wages was Rs. 1,200/- and the celling as per unamended Act is Rs. 1,000/-. 12. The workman was 55 years of age on the date of his death. The factor for working out the compensation in the case of the deceased as per the Act is 135.50. His monthly wages was Rs. 1,200/- and the celling as per unamended Act is Rs. 1,000/-. 40% thereof would be the wages to be adopted to arrive at the compensation. Thus it works out to Rs. 54,500/- and if rounded off, the compensation to be awarded to the claimant is Rs. 50,000/-. We disallow the interest to the claimant as we are informed that the legal heir of the deceased is gainfully employed by the same employer. The appeal is allowed as indicated above. No costs.