Divisional Manager, Food Corporation of India v. Pallima alias Fathima and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** ## **WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945** ## **MFA (ECC) NO. 22 OF 2023** ## **ECC 37/2014 OF EMPLOYEES COMPENSATION COMMISSIONER (INDUSTRIAL TRIBUNAL),** ## **PALAKKAD** ## **APPELLANT/OPPOSITE PARTY** THE DIVISIONAL MANAGER, FOOD CORPORATION OF INDIA, P.O, INDUSTRIAL ESTATE, OLAVAKKODE, PALAKKAD DISTRICT, PIN - 678731 BY ADV R.HARIKRISHNAN (KAMBISSERIL) ## **RESPONDENTS/APPLICANTS** - 1 PALLIMA ALIAS FATHIMA, W/O KUNHU MOHAMMED P.V, PUTHENVEETTIL HOUSE, MANIYAMPERUMBALAM, KOODALLUR, PALAKKAD DISTRICT, PIN - 679554 - 2 AYISHAKUTTY D/O KUNHU MOHAMMED, P.V, PUTHENVEETTIL HOUSE, MANIYAMPERUMBALAM, KOODALLUR, PALAKKAD DISTRICT, PIN - 679554 - 3 MUHAMMED RAFEEQUE S/O KUNHU MOHAMMED P.V, PUTHENVEETTIL HOUSE, MANIYAMPERUMBALAM, KOODALLUR, PALAKKAD DISTRICT, PIN, PIN - 679554 - 4 JUMAILU D/O KUNHU MOHAMMED P.V, PUTHENVEETTIL HOUSE, MANIYAMPERUMBALAM, KOODALLUR, PALAKKAD DISTRICT, PIN - 679554 - 5 SHAMEERA D/O KUNHU MOHAMMED P.V, PUTHENVEETTIL HOUSE, MANIYAMPERUMBALAM, KOODALLUR, PALAKKAD DISTRICT, PIN - 679554 - 6 SHAREENA D/O KUNHU MOHAMMED P.V,, PUTHENVEETTIL HOUSE, MANIYAMPERUMBALAM, KOODALLUR, PALAKKAD DISTRICT, PIN - 679554 - 7 FAIZAL S/O KUNHU MOHAMMED P.V, PUTHENVEETTIL HOUSE, MANIYAMPERUMBALAM, KOODALLUR, PALAKKAD DISTRICT, PIN - 679554 BY ADVS. P.K.MOHANAN (PALAKKAD) THAREEQ ANVER K.(K/000942/2018) THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON 21.11.2023, THE COURT ON 29.11.2023, DELIVERED THE FOLLOWING: _**MFA.(ECC) 22 of 2023**_ 2 **C.R.** ## **C.PRATHEEP KUMAR, J.** -------------------------------------- M.F.A.(ECC).22 of 2023 -------------------------------Dated : 29[th] November, 2023 ## **JUDGMENT** 1. This is an appeal filed under Section 30 of the Employee's Compensation Act, 1923 (in short, Act 8 of 1923) by the opposite party in E.C.C.37 of 2014 (old No. W.C.C.94 of 2010) on the file of the Employee's Compensation Commissioner (Industrial Tribunal), Palakkad against the order dated 26.09.2022. 2. The respondents are the legal heirs of deceased Kunhu Mohammed, who died of cardiac arrest on 26.7.2010 while working as loading and unloading worker under the appellant, namely, FCI. According to the respondents, on 26.7.2010 due to excessive work, stress and strain of the work, the deceased felt uneasiness and he was taken home in a hired vehicle by his co-workers. On the way his condition became worse and hence he was taken to the Primary Health Centre, Kumbidi and there he succumbed to the ailments. The Medical Officer reported that the cause of death was cardiac arrest. Alleging that the death of Kunhu Mohammed was due to stress and strain of his work as a loading and unloading worker under the FCI, the respondents have filed the above application before the Employee's Compensation Commissioner claiming compensation of Rs.10,00,000/-. As per the impugned order, the Commissioner awarded a compensation of Rs.5,13,320/- along with interest @12% and another Rs.5,000/- towards funeral expenses. _**MFA.(ECC) 22 of 2023**_ 3 3. Aggrieved by the above order passed by the Employee's Compensation Commissioner, the FCI preferred this appeal raising various contentions. According to the learned counsel for the appellant, the death of Kunhu Mohammed was due to cardiac arrest and that in this case there is absolutely no evidence to show that cardiac arrest had any causal connection with his work as a loading and unloading employee. 4. However, the learned counsel for the respondents, on the basis of evidence on record, would argue that the deceased felt uneasiness even during the lunch break, that he requested for leave in the afternoon, that the request for leave was denied, that in the above circumstances, he was forced to continue his loading and unloading work till the evening and that the same had aggravated his health condition. Therefore, according to the learned counsel, there is direct and causal connection between the employment and the death of the employee. 5. Now the point that arise for consideration is the following: Whether death of an employee caused due to cardiac arrest amounts to 'accident arising out of and in the course of his employment' ? 6. AW1 examined in this case is one of the sons of the deceased. AW2 is one of his co-workers. Since AW1 was not there along with the deceased at the time of incident, his evidence is not crucial in this case. On the other hand, the evidence of AW2, who was working along with the deceased on the date of incident, is very relevant. He would swear that the deceased Kunhu Mohammed, was very healthy. In the proof affidavit, AW2 categorically stated that during the lunch interval Kunhu Mohammed felt uneasiness and he wanted to go home and the matter was informed to the officials of FCI. However, they directed him to be present _**MFA.(ECC) 22 of 2023**_ 4 at the place of work till the evening and did not permit him to go either to his residence or to the hospital. In the evening after the wok was over, he was very tired and therefore, a taxi was hired in which he was taken to his residence, on the presumption that he will become alright on taking rest. However, on the way home his condition became worse and hence he was taken to the Primary Health Centre, Kumbidi, where the doctor declared his death. The above evidence of AW2 was not challenged during the cross-examination. Therefore, the evidence of AW2 to the effect that during the lunch interval itself Kunhu Mohammed developed symptoms of ailment, that at that time, he sought for leave to go home, that leave was denied and hence he was forced to continue his work till evening, which aggravated his health condition, remain unchanged. 7. The learned counsel for the appellant would argue that even after completing the duty the deceased has not directly went to the hospital but went to home and from the above circumstance, it is to be presumed that he had no ailments when he left the place of employment. However, it is to be noted that usually the deceased used to return home by train. On the ill-fated day he had to hire a taxi to go home. More over, as I have already noted above, from the evidence of AW2, it is revealed that even during the lunch interval he had developed symptoms of ailment and that was the reason why he requested for leave in the afternoon. At that point of time nobody apprehended that the deceased was showing symptoms of cardiac illness. That can only be the reason why he directly went home instead of going to any hospital, immediately after the duty is over. The above circumstance cannot be taken as a ground to show that the cause of death of the employee has no causal connection with the employment. ## 8. In **Jyothi Ademma v. Plant Engineer, Nelloore and Another [2006** _**MFA.(ECC) 22 of 2023**_ 5 **KHC 824]** relied upon by the learned counsel for the appellant, the Hon'ble Supreme Court held that :- _“Under Section 3(1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear, of the employment no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable.”_ 9. Relying upon the decision of the Hon'ble Supreme Court in **Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali and Ors. [AIR 2007 SC 248 ]** , the learned counsel for the appellant would argue that in the case of death due to heart attack, medical opinion is relevant to establish that failure of heart was because of stress and strain of work. In paragraph 12 of the above decision the Hon'ble Apex Court held that :- _“Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefor can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact_ _**MFA.(ECC) 22 of 2023**_ 6 _and no hard and fast rule can be laid down therefore.”_ - 10.In the above decision, the deceased was working as a cleaner in a vehicle. While he was travelling in the vehicle in the night, he suddenly developed chest pain. When he was taken to the hospital the doctor declared him death. It was in the above context, the Hon'ble Supreme Court held that in every case a person dies of heart attack, it does not give rise to an automatic presumption that the same was by way of accident. - 11.In **The District Manager, Food Corporation of India v. Fathima and Others [MFA No.208 of 2006 decided on 15.11.2006]** , relied upon by the learned counsel for the respondents, the deceased was a headload worker carrying 50 Kgs of weight and heart attack occurred during the course of his employment. A Division Bench of this Court upheld the finding of the Commissioner that the accident occurred during the course of his employment. 12.In the decision in **Leela and Another v. M.K.Sukumaran and Another [MFA (ECC).No.136 of 2018 decided on 28.10.2023]** , a learned Single Judge of this Court, had occasion to consider whether death of a truck driver during the course of his employment due to heart attack would amount to accident arising out of and in the course of his employment. The learned Single Judge relying upon the decision of the Hon'ble Supreme Court in _**Param Pal Singh v. National Insurance Co.Ltd and another [2013 ACJ 526]**_ held that : _“The view taken by the Apex Court is that the employer was liable to compensate even if the deceased was not actually driving the truck. When in the course of his driving, he felt discomfort and later, in the hospital, he died due to heart disease, he being a driver for long years_ _**MFA.(ECC) 22 of 2023**_ 7 _subjected to its stress and strain, the death would amount to an accident arising out of and in the course of his employment. The position here is more in favour of the appellants. Following discomfort, the deceased collapsed on the driver's seat and the accident ensued, resulting in his death. In the light of the law laid down by the Apex Court, it can only be held that the death of Sri.Vasu was in the accident arising out of and in the course of his employment with the 1[st] respondent.”_ 13.In **Param Pal Singh** (supra), a 45 year old driver while driving the vehicle from Delhi to a distant place about 1152 Kms away from Delhi and while driving the truck, suffered a health set-back and therefore, he parked the vehicle on the road side. Immediately he was taken to a nearby hospital where the doctors declared him brought dead. In the above factual scenario, the Hon'ble Apex Court, after analyzing various decisions, held that : _“Applying the various principles laid down in the above decisions to the facts of this case, we can validly conclude that there was CAUSAL CONNECTION to the death of the deceased with that of his employment as a truck driver. We cannot lose sight of the fact that a 45 years old driver meets with his unexpected death, may be due to heart failure while driving the vehicle from Delhi to a distant place called Nimiaghat near Jharkhand which is about 1152 kms. away from Delhi, would have definitely undergone grave strain and stress due to such long distance driving. The deceased being a professional heavy vehicle driver when undertakes the job of such driving as his regular avocation it can be safely held that such constant driving of heavy vehicle, being dependent solely upon his physical and mental resources & endurance, there was every reason to assume that the vocation of driving was a material contributory factor if not the sole cause that accelerated his unexpected death to occur which in all_ _**MFA.(ECC) 22 of 2023**_ 8 _fairness should be held to be an untoward mishap in his life span. Such an ‘untoward mishap’ can therefore be reasonably described as an ‘accident’ as having been caused solely attributable to the nature of employment indulged in with his employer which was in the course of such employer’s trade or business_ .” 14. From the above binding precedents it can be concluded that in order to make an employer liable under section 3 of Act 8 of 1923 there should be a causal connection to the death with the employment. The evidence and facts in this case are to be analyzed in the light of the above principle. In the instant case, the deceased was working as loading and unloading worker in the godown of FCI. From morning onwards he was loading and unloading goods there. From the evidence of AW2, it is revealed that on the date of incident on 26.7.2010, there were 11 employees in their group. On that day, they have loaded 2050 sacks of load in 10 lorries. In addition to the same, they have unloaded 3750 sacks of goods from 3 wagons. The interval time was between 1.00 and 1.30 pm. At that time itself Kunhu Mohammed felt uneasiness and in spite of that, he had to work upto 5.30 pm and do so much labour. Therefore, it can be seen that denial of leave in the afternoon on 26.07.2010 forced the employee to work tirelessly, in spite of showing symptoms of ailments. In the above circumstance, it can also be safely concluded that the manual labour which is part and parcel of the loading and unloading work undertaken by him had contributed and aggravated the illness which resulted in his death. In this case, there is ample evidence to prove the direct and causal connection between the employment and the ailment which led to his death. Therefore, from the available evidence, there is every reason to conclude that the deceased died due to the restless lobour, and consequent risk, stress and strain of his work. On the basis of the _**MFA.(ECC) 22 of 2023**_ 9 evidence on record, it can safely be concluded that Kunhu Mohammed was an employee of FCI and that he died in an accident which arose out of and in the course of his employment. I do not find any illegality or irregularity in the impugned order of the learned Employee's Compensation Commissioner. Hence, this appeal is liable to be dismissed. The point answered accordingly. In the result, the appeal stands dismissed. Sd/- **C.Pratheep Kumar Judge** Mrcs/17.11.