Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 608 (CAL)

Eastern Coalfields Ltd. v. Atiwari Bai

2011-05-02

AMIT TALUKDAR, SHUKLA KABIR SINHA

body2011
JUDGMENT Talukdar, J. 1. THE Judgment of the Court was delivered by : Life ebbed out from the 48 year old mortal frame of her soul mate while he was functioning as a Surface Trammer in the early monsoon evening of 07.08.2001 in the Kumardihi 'B' Colliery under the Eastern Coalfields Ltd. In the process it not only evaporated all the colours from her life but exposed the Respondent to the need for putting her body and soul intact. His death being on account of a cardiac arrest, has formed the subject matter in this appeal for the Eastern Coalfields to recuse itself from the award. 2. WHILE it is of poor consolation for her to locate the medico-legal cause of the death of her life's partner, it had been a primordial consideration for the Eastern Coalfields Ltd. to pass off the same as a simple case of respiratory failure unrelated with the nature of job performed by late Surface Trammer Mahal Das. To husband out life's taper, Smt. Atiwari Bai, widow of the deceased presented a Claim Case being No. 19 of 2005 before the learned Commissioner, Durgapur on 05.02.2005. In terms thereof, the Eastern Coalfields Ltd.(Appellant) in F.M.A. 530 of 2009 and Respondent in Cross Appeal No. 51 of 2009 was notified. In course of the said proceeding before the learned Tribunal, the claimant examined herself as P.W. 1, a colleague of her late Husband Upendar Yadav as P.W.2 and the Mining Sardar of the said Colliery Indrapal Thakur examined himself as P.W.3, while the Employer examined Jadu Nandan, Prasad, Senior Manager of the Colliery as O.P.W.1 and the Medical Superintendent of the said Colliery Dr. A.N. Sarkar as O.P.W. No. 2. 3. ON the basis of the evidence and materials on record Shri D.K. Sinha, learned Commissioner, Workmen's Compensation Court, Durgapur in connection with Claim Case No. 19 of 2005 by His Honours Judgment and Order under appeal dated 26.11.2008 directed the Employer to pay a compensation of Rs. 3,19,600/- to her but however, did not pass any order for payment of any interest. 4. 3,19,600/- to her but however, did not pass any order for payment of any interest. 4. THE order of the Commissioner gave rise to two sets of appeal; one at the instance of the Eastern Coaldfields Ltd. questioning the legality of the award since the Husband of the Deceased did not meet with any accident and it was sought to be impressed that since he suffered from a heart attack, it was a natural death. On the other hand the Cross Appeal filed by the claimant Atiwari Bai was on the premises that no interest on compensation was granted. As both the appeals arising from the common Judgment and Order and have been argued at the Bar simultaneously, we propose to dispose of the same by this common Judgment which would govern both the appeals. 5. SHRI Pal for the Eastern Coalfields Ltd. had exhaustively argued the appeal. According to SHRI Pal since it has been established from the evidence that there was no accident which occurred on the date and time when the deceased workman died, question of any claim did not arise under the Act. According to SHRI Pal, the said workman died out of a heart attack and as such the same not being due to any work related to his employment; the claim was not maintainable. Referring to the evidence of O.P.W. No. 1, Senior Manager of the said Colliery, SHRI Pal submitted that it is evident that the job of a Surface Trammer is not strenuous and the finding of the Commissioner was perverse being based merely on assumption. Death of the workman, SHRI Pal submitted, took place due to illness, which had no nexus with the nature of his job. As such, he was of the view that the award passed by the Tribunal was wholly improper. 6. SHRI Pal summed up by saying that there is no casual connection between the employment and the death of the workman, which would require the employer to pay compensation. As a part of his submission Shri Pal referred to the decision of the Supreme Court in Shakuntala Chandrakant Shresthi v. Prabhakar Maruti Garvaii and Anr., AIR 2007 SC 248 to establish his case that the circumstances must exist so as to establish that death was caused by reason of failure of heart because of stress and strain at work. 7. 7. THEN he placed the decision of the Supreme Court in Jyothi Ademma v. Plant Engineer, Nellore and Anr. reported in (2006)3 TAC 8 (SC) : (2006)2 WBLR (SC) 606 on the self-same score. 8. SHRI Banerjee for the Respondent in the appeal filed by Eastern Coalfields Ltd. as well as the Appellant in C.O.T. No. 51 of 2009 filed by Atiwari Bai, the widow of Late Workman Mahal Das submitted that it has been borne out from the evidence that Mahal Das met with his death inside the premises of the Kumardihi 'B' Colliery owned by the Eastern Coaldfields Ltd. while he was on duty on the relevant date. Shri Banerjee further submitted that it has been borne out from the evidence of P.W.3, Indrapal Thakur, Sardar of the Colliery that the job was strenuous and he could not be discredited in his cross examination. As such, even though any accident as such may not have occurred but as the death took place in course of his employment as a Surface Trammer, due to severe stress and strain and heavy duty, compensation was liable to be paid in such death and as the Tribunal has rightly passed the order in this respect, no interference was called for. 9. SHRI Banerjee relied on two Division Bench decisions of this Court. He referred to the decision of Charan Bala Biswas v. Shipping Corporation of India and Anr. reported in (2008)3 Cal HN 220 and Indian Iron and Steel Company Ltd. v. Bhim Maya Chettri reported in (2008)3 WBLR (Cal) 357 respectively. On the strength of the aforesaid two Division Bench decisions of our Court SHRI Banerjee was of the view that the whole appeal was not maintainable in the absence of any substantial question of law being involved. It is only in such situation, the appeal would be maintainable as the scope of Section 30 of the Workmen's Compensation Act, 1923 is extremely limited. 10. ARGUING the Cross Appeal (C.O.T. 51 of 2009) Shri Banerjee showed from the order under appeal that no interest was paid. He showed us the decision of the Supreme Court in Pratap Narain Singh Deo v. Shrinivas Sabata and Anr., AIR 1976 SC 222 that once the Commissioner had passed the order of compensation, it was necessary for him to have ordered payment of interest. He showed us the decision of the Supreme Court in Pratap Narain Singh Deo v. Shrinivas Sabata and Anr., AIR 1976 SC 222 that once the Commissioner had passed the order of compensation, it was necessary for him to have ordered payment of interest. Shri Pal, in reply distinguished the two Division Bench decisions of our Court in Charan Bala Biswas v. Shipping Corporation of India and Anr. (supra) and Indian Iron and Steel Company Ltd. v. Bhim Maya Chettri (supra) cited by Shri Banerjee. According to Shri Pal, in both the cases there were previous report of illness and the same does not fit in with the present facts and circumstances. 11. AFTER we have heard Shri Pal and Shri Banerjee in the respective appeal, now we would propose to deal with the points raised by them in the light of the evidence and materials on record. 12. HOWEVER, it has to be borne in mind, that this is not a conventional First Appeal. We would have to derive our sustenance from Section 30 of the First Proviso, thereof contains a rider "that no appeal shall lie against any order unless a substantial question of law is involved in the appeal". So it is not each and every cause of action that can be carried in such appeals at the drop of a hat. There must be a substantial question of law involved. 13. NOW how do we deduce what is a substantial question of law? 14. WHAT is a substantial question of law have been decided nearly half a century ago by the Constitution Bench in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314 where J.R. Mudholkar, J. speaking for the Constitution Bench in paragraph 6 has held : ".........The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether if directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." As such, we would be required to decide as to whether the issue that has been raised by Shri Pal that as no accident took place and the deceased workman died of a cardiac arrest, yet, his spouse being compensated - would be a substantial question of law for appeal by the Eastern Coalfields Ltd. 15. ALTHOUGH the Division Bench in Charan Bala Biswas v. Shipping Corporation of India and Anr.(supra) and Indian Iron and Steel Company Ltd. v. Bhim Maya Chettri (supra) have discussed this issue and have discussed the question threadbare, we would as a First of Court Appeal, look into the said issue in our own way in the light of the decision cited at the Bar. 16. MAHAL Das, the Husband of the deceased Atiwari Bai was a Surface Trammer, who is to pull the full loaded tub to the Trippler Drum. Two persons are required to pull the tub and two others are required to push the same from behind. This has been spoken by the Sardar of the Kumardihi 'B' Colliery, where MAHAL Das worked as a Surface Trammer. In his cross examination, the Sardar, who has examined himself as P.W.3 could not be discredited from his evidence that the job of Surface Trammer is not strenuous. Both, his widow P.W.1, Atiwari Bat and his erstwhile colleague P.W.2, Upender Yadav have stated that deceased Mahal Das died on the spot in course of his employment. The fact that Mahal Das was on duty at the relevant time, has been borne out from the evidence of the O.P.W.1, Jadu Nandan Prasad, Senior Manager of the Colliery, who has deposed ".................on 7.8.01 Mahal Das was on duty." And further he has stated "..................On 7.8.01 Mahal Das sustained chest pain at 3 p.m. in course of his employment and died due to chest pain." 17. FROM the cross examination of O.P.W. No.2, Dr. Sarkar, Deputy Medical Superintendent of Kumardihi 'B' Colliery it was revealed "........../ examined Mahal Das on the colliery premises and found him dead." 18. FROM the cross examination of O.P.W. No.2, Dr. Sarkar, Deputy Medical Superintendent of Kumardihi 'B' Colliery it was revealed "........../ examined Mahal Das on the colliery premises and found him dead." 18. THE Medical Officer of Sub-Divisional Hospital, Durgapur, who conducted the post mortem examination on the body of late Shri Mahal Das kept his opinion pending as he had sent the viscera for examination. Learned Commissioner, who has very neatly summed up the evidence and marshalled the facts in a commendable fashion held : "....But the fact remain that Mohal Das died during his duty period and his nature of job was strenuous and the management has failed to prove the death of the workmen by heart attack as per frth by him. What is more distressing is that the death of the workmen has not been properly diagnoised and no further opinion after p.m. was collected. It will not be out of place to mention here that there is no evidence that the workmen before his death suffered from any disease." 19. LEARNED Commissioner, whom we had found had very capably handled the situation, took note of the employer's story with regard to the deceased workman suffering a heart attack whereas the death certificate issued by O.P.W. No. 2, Dr. Sarkar was silent on this. The Post Mortem Report showed opinion was kept pending till arrival of the viscera report. 20. VERY rightly the learned Commissioner had held : "...........Therefore it is definitely an unfortunate attempt on the part of the management/employer to avoid liability of compensation by passing of the death as a natural one. Stress and strain resulting in a sudden heart failure in the case of the present natural could presumed. There is no evidence to demonstrate that the workman has exposed himself to an added peril by his own imprudent act." We would pause here for a moment and turn to the decisions referred to by Shri Pal. In Shakuntala Chandrakant Shresthi v. Prabhakar Maruti Garvali and Anr. (supra) Sinha, J. writing the Judgment in paragraph 27 had held: "An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia are: 1. stress and strain arising during the course of employment 2. nature of employment 3. injury aggravated due to stress and strain." 21. WHILE Shri Pal is correct in his submission that there is a crucial link between the casual connection of employment with death and unless and until the same is proved, there will be a jurisdictional error for the Commissioner while exercising power in respect of a claim case. But if the said judgment is read as a while, it cannot be of any full proof support for Shri Pal. In the instant case from the evidence of P.W.3, Indrapal Thakur, Sardar of the Colliery we find that the stress and strain factor was to be reckoned with so as to arrive at the question of cause of death being linked with the manner of death. 22. SINHA, J. speaking for the Bench in paragraph 41 has further held : ...........From the post-mortem report, it appears that in the accompanying report, it is stated that the death was due to sudden heart attack. When exactly the death took place is not known. It will bear repetition to state that under what circumstances the death took place is also not known. There was also no pleading in this behalf. The Commissioner came to the conclusion that the death took place during the course of the employment but then no evidence has been brought on record to show that it had a casual connection between accident and serious injury so as to fulfill the requirements of the terms "out of employment". Indisputably, there has to be a proximate nexus between cause of death and employment. A stray statement made by appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation....................." In the instant case, as we have found that deceased Mahal Das passed away in harness in the place of his work. A stray statement made by appellant that the deceased had died while working in the vehicle and stress or strain of the work did not appear to have any foundation....................." In the instant case, as we have found that deceased Mahal Das passed away in harness in the place of his work. The job he performed as a Surface Trammer for pushing and pulling the tub to the Trippler Drum was strenuous and as rightly found by the learned Commissioner that no serious attempt was made by the Employer to collect the actual cause of death from the Autopsy Surgeon, makes the application of the decision of Shakuntala Chandrakant Shresthi v. Prabhakar Maruti Garvali and Anr. (supra) quite distinguishable. 23. SIMILARLY, Shri Pal's reference to the decision of the Supreme Court in Jyothi Ademma v. Plant Engineer, Nellore and Anr. (supra), which has been taken note of by the Division Bench in Charan Bala Biswas v. Shipping Corporation of India and Anr. (supra) and Indian Iron and Steel Company Ltd. v. Bhim Maya Chettri (supra), is quite distinguishable in the factual matrix of the present case. The Husband of the Appellant Jyothi Ademma had a previous history of heart ailment and the job assigned to him, was simply to switch off or on. In course of his employment, the Supreme Court opined that there was no scope for stress and strain in his duty. Again at the cost of repetition we may say that factually it being proved that there was stress, which claimed Mahal Das-the argument of Shri Pal, in our opinion, does not hold much water. 24. SHRI Pal has put much emphasis that there was no casual connection between employment and death of the workman. We have carefully considered this point. Nearly 45 years ago a Division Bench of our Court in Sarat Chatterjee and Co. (Private) Ltd. and Khairunnessa, 1968 LLJ had considered this point, Arun Kumar Mukherjee, ICS (as his Lordship then was) the Speaking Voice of SHRI Sarat Chatterjee and Co.(Private) Ltd. and Khairunnessa for himself and SHRI Deep Narayan Sinha, Chief Justice held: ".................For making out a claim under the Workmen's Compensation Act it is necessary to establish definite casual connexion between the work and the accident leading to the death. The mere fact that death takes place while the deceased is on the job or immediately after he was on the job is not enough. In the case before us no such casual connexion has been established. Indeed, there is no evidence at all that the deceased while he was on his job felt unwell nor are there other circumstances to show that his death was caused by any strain through which he must have passed while in course of his employment...." Once we have found the manner, citus and the mystery surrounding the cause of death-we feel very rightly the Commissioner had passed an award. 25. WE are emboldened by a decision of HOUSE OF LORDS in Charles R. Davidson and Company and M'Rob Or Officer, 1918 AC 304 where Viscount Haldane on behalf of Lord Dunedin, Lord Atkinson and Lord Parmoor; (Lord Finlay L.C. dissenting) held : "....In the course of employment" does not mean during the currency of the engagement, but means in the course of the work which the workman is employed to do and what is incident to it..." 26. IN Section 3 of the Workmen's Compensation Act, 1923, the phrase "............accident arising out of and in the course of his employment..." has to be a reckoning factor for the purpose of arriving at a proper decision in the light of the attack led by Shri Pal against the finding returned by the learned Commissioner. In Mackinnon Machenzie and Co. (P) Ltd. v. Ibrahim Mahmmed Issak, (1969)2 SCC 607 a Three Judge Bench of the Supreme Court had held: "..............The words "in the course of employment" mean "in the course of the work which the workman is employed to do and which is incident to it". The words "arising out of employment" are understood to mean that "during the course of 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. 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 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..................." 27. ONCE we have found that Mahal Das was found dead in the Colliery premises while he was still on duty, the assertion of Shri Pal that death of Mahal Das cannot be related to the nature of his job, does not stand to reason. 28. AS the Eastern Coalfields Ltd. has failed to formulate any substantial question of law so as to sustain the appeal under Section 30 of the Workmen's Compensation Act, we find no reason to interfere and necessarily, the same would have to be dismissed by way of affirming the order of compensation. We would now have to shift our attention to the Cross Appeal (C.O.T. No. 51 of 2009) filed by Smt. Atiwari Bai where she has claimed for Interest. The Commissioner, after accepting the prayer for claim, passed the order of compensation for Rs. 3,19,600/- by his Order dated 26.11.2008. No order for interest, was however, passed. Shri Banerjee has referred to the decision of the Supreme Court in Pratap Narain Singh Deo v. Shrinivas Sabata and Anr. (supra) in this regard. The provisions of Section 4(a) of the Workmen's Compensation Act is quite clear. It is otherwise, a beneficial provision having regard to the scheme of the Act. While exercising jurisdiction under Section 4 (a) of the said Act, the Court has a discretion and the said discretion must be exercised by way of a speaking and reasoned order. In the instant case, although the learned Commissioner performed an otherwise splendid job - did riot advert to the question of Interest. This would necessitate our interference. 29. While exercising jurisdiction under Section 4 (a) of the said Act, the Court has a discretion and the said discretion must be exercised by way of a speaking and reasoned order. In the instant case, although the learned Commissioner performed an otherwise splendid job - did riot advert to the question of Interest. This would necessitate our interference. 29. THE incident took place in August 2001 and the Claim Application was filed in 2005. Between this period till such time the compensation was granted, Smt. Atiwari Bai had suffered the agony of financial distress apart from loss of her Husband. She has made out a case for grant of interest. 30. IT would be pertinent to see the relevant provision in the Workmen's Compensation Act, 1923 dealing with the question of interest. "[4.A. Compensation to be paid when due and penalty or default.- (1) ********************************************* (2) ********************************************** [3. Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall- (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate hot exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears, and interest thereon pay a further sum not exceeding fifty per cent of such amount by way of penalty" Law in this respect since Kamla Chaturvedi v. National Insurance Co. and Ors., (2009)1 TAC 1 (SC) till the latest decision in Pal Raj v. Divisional Controller, NEKRTC, (2010)4 TAC.79 (SC) : (2009)3 WBLR (SC) 627 has been fructified. We need not dwell on the same any further. 31. ACCORDINGLY, we feel the award should carry interest @ 12% per annum from the date of filing of the Claim Petition till such time the Claim was actually extinguished. 32. We need not dwell on the same any further. 31. ACCORDINGLY, we feel the award should carry interest @ 12% per annum from the date of filing of the Claim Petition till such time the Claim was actually extinguished. 32. IN view of the discussions made above, the appeal being F.M.A. No. 1123 of 2009 (Eastern Coalfields Ltd. v. Smt. Atiwari Bai) stands dismissed while the Cross Appeal being No. C.O.T.51 of 2009 (Smt. Atiwari Bai v. Eastern Coalfields Ltd.) is allowed. Before we part, we would like to record our appreciation of the job performed by Shri D.K. Sinha, learned Commissioner, Workmen's Compensation, Durgapur while arriving at his conclusion. We would request the learned Registrar (Judicial) to communicate our appreciation to Shri Sinha. Kabir (Sinha), J.-I agree. Later: After the judgment was delivered in presence of the learned Counsel for the Appellant and the Respondent, an oral prayer for stay was made by the Appellant in F.M.A. No. 1123 of 2009. We have considered the same. Since our decision is based on the legal position and on the basis of the decisions of the Supreme Court, we feel that in the event stay is granted, we would push the unfortunate Respondent in F.M.A. No. 1123 of 2009 to further uncertainty and, accordingly, we regret the same.