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2016 DIGILAW 172 (GAU)

Union of India v. Fulerunnessa

2016-03-10

SUMAN SHYAM

body2016
ORDER : 1. Heard Mr. K.K. Parasar, learned CGC appearing for the appellants. Also heard Ms. P. Chakraborty, learned counsel appearing for the claimants/respondents. This appeal has been preferred against the judgment and order dated 30/07/2009 passed by the learned Commissioner under the Workmen’s Compensation Act, Silchar in connection with W.C. Case No. 35/2006, whereby an amount of Rs. 2,71,138/- together with interest calculated @ 9% per annum with effect from the date of filing of the application was awarded in favour of the claimants on account of death of their son Mazibur Raahman. 2. It is the undisputed position of fact that the son of the claimants/respondents, aged about 25 years, while being engaged under the appellant No. 2 in connection with construction of a road at Mizoram had fallen sick while at work and later on died at the Silchar Medical College and Hospital on 16/11/2003 out of Malaria. Since the deceased Mazibur Rahman had died during the course of his employment under the appellants, hence claim for compensation under the Workmen’s Compensation Act, 1923 seeking an amount of Rs. 3,25,365/- along with interest was lodged by the claimants. After his death, there was an enquiry conducted by One Man Committee of Shri Mukesh Jain, appointed by the appellants herein who had submitted a report dated 13/12/2003 confirming the fact that the deceased Mazibur Rahman had fallen sick while he was working under the appellant No.2. He was thereafter shifted to Civil Hospital, Champai on 11/11/2003 and ultimately referred to the Silchar Medical College and Hospital for further treatment where had expired on 13/11/2003 due to malaria. The medical certificate on the cause of death issued by the Silchar Medical College and Hospital, Silchar (Annexure-1) also confirms that the deceased Mazibur Rahman had died due to malaria fever. However, in the said report, the enquiry officer had observed that the deceased would not be entitled to any compensation since malaria fever ‘Vivex’ is not a disease covered under Schedule-III of the Workmen’s Compensation Act, 1923. 3. A perusal of the entries made in Sl. No. 1 of Schedule-III of the Workmen’s Compensation Act, 1923 would go to show that amongst the list of occupational diseases “infectious and parasitic diseases contracted in an occupation where there is a particular risk of contamination” is included. 3. A perusal of the entries made in Sl. No. 1 of Schedule-III of the Workmen’s Compensation Act, 1923 would go to show that amongst the list of occupational diseases “infectious and parasitic diseases contracted in an occupation where there is a particular risk of contamination” is included. That apart, under Column 3, the nature of employment which would come within the purview of the said clause includes “all work involving exposure to the risk concerned.” 4. Appreciating the level of risk and exposure to infectious and parasitic diseases faced by the workmen, the Government of India through the Ministry of Labour had issued an Office Memorandum dated 10/07/1990 floating a proposal for inclusion of certain diseases in Schedule-III of Workmen’s Compensation Act, 1923. The aforesaid notification is quoted herein below for ready reference:- “No. S-37018/1/89-SS/1 Government of India/Bharat Sarkar Ministry of Labour/Shram Mantralaya New Delhi, dated the 10th July 1990 Office Memorandum Subject : Proposal for inclusion of certain diseases in Schedule-III of WCA 1923. The undersigned is directed to refer to Border Roads Development Board’s OM No. F. 81(1)/WCA 64-Estt/Vol.III dated the 13th June, 1990 on the subject mentioned above and will say that the matter has been considered by an expert Group and they have recommended as follows :- (1) Cerebral malaria is covered under Sl. No.1 “Infectious and parasitic diseases contracted in an occupation where there is particular risk of contamination” in Part A of schedule-III of the Workmen’s Compensation Act. The Committee feels that not only the cerebral malaria but all the clinical forms of malaria are also covered under Sl. No.1. The compensation will depend on the severity of the disease. (2) “Ischaemic heart disease and myocardial infraction developed in high altitude as a result of extreme work related stress” should be included in Part B of Schedule III of the Workmen’s Compensation Act. (2) The recommendation of the Group at (1) above may be accepted and further action taken accordingly. So far as (2) above is concerned the matter is being further reviewed in the light of the position explained in (sic) U.O. NO. F.81(1)/WCA/64-Estt Vol.III dated 23/3/90. Sd/- xxxxx Under Secretary.” 5. (2) The recommendation of the Group at (1) above may be accepted and further action taken accordingly. So far as (2) above is concerned the matter is being further reviewed in the light of the position explained in (sic) U.O. NO. F.81(1)/WCA/64-Estt Vol.III dated 23/3/90. Sd/- xxxxx Under Secretary.” 5. From a bare reading of the entries made in schedule III as well as the proposal made by the appellant No.1 through the Ministry of Labour in the form of notification dated 10/07/1990, it is apparent that even the authorities at the highest level was conscious of the fact that malaria in all its clinical form was liable to be included within the definition of “infectious and parasitic disease” under Schedule III of the Workmen’s Compensation Act, 1923. 6. In the instant case, it is apparent from the records that the deceased Mazibur Rahman was engaged under the appellant No. 2 in the work of construction of road in remote locations in the State of Mizoram where the person was exposed to high risk of catching up with infectious and parasitic diseases. As has been mentioned hereinabove, it is not in dispute that Mazibur Rahman had in-fact died out of Malaria fever ‘Vivex’ which he had contracted during the course of his engagement as a labour under the appellants. The one man committee report had also clearly mentioned that there was no “foul play” in the death of the deceased son of the claimants. 7. Having regard to the specific entries made in schedule III of the Workmen’s Compensation Act, 1923, this Court is of the opinion that there is no justifiable ground to exclude malaria fever ‘Vivex’ from the list of diseases which are covered under schedule III. That apart, in view of the notification dated 10/07/1990, it is now evident that even the appellant No. 1 has also accepted that cerebral malaria in all its clinical form are covered under Sl. No.1 of the entries made in schedule III of the Workmen’s Compensation Act, 1943. Taking note of the aforesaid provision, the learned Commissioner had awarded the compensation to the claimants. 8. No.1 of the entries made in schedule III of the Workmen’s Compensation Act, 1943. Taking note of the aforesaid provision, the learned Commissioner had awarded the compensation to the claimants. 8. The learned counsel for the appellant has fairly submitted that the solitary ground on which the appellants are assailing the impugned judgment and order is that “Malaria Fever” is not covered under schedule III of the Act and hence, no compensation would be payable on account of death of the son of the claimants. 9. For the reasons indicated hereinabove, the aforesaid submission made by the learned CGC cannot be accepted, the same being contrary to not only the entries made in Schedule III of the Workmen’s Compensation Act, 1923 but also on account of being contrary to the notification dated 10/07/1990. In such view of the matter, I do not find any justifiable ground to cause interference with the impugned judgment and order. Consequently, the present appeal shall stand dismissed. 10. It has been brought to the notice of this Court that due to a stay order passed in this proceeding by this Court, no amount has been paid to the claimants till date. In view of the determination made hereinbefore, the claimants would be permitted to withdraw the compensation amount lying in deposit before the Commissioner, Workmen’s Compensation at Silchar on proper disclosure of their identity to the satisfaction of the learned Commissioner. Further, it is also directed that the appellants would deposit the interest component, if any, due under the award within a period of 90 (ninety) days from today. 11. With the above observation, the appeal stand disposed of. 12. Return the LCR.