Manager, Tata Tea Ltd., Malakkapara, Thrissur v. Madathy and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 MFA.No. 175 of 2006() --------------------WCC.115/1999 of Commissioner for Workmen's Compensation , THRISSUR .................... APPELLANT(S): RESPONDENT: ------------------------- MANAGER, TATA TEA LTD., MALAKKAPARA P.O., THRISSUR. BY ADV. . SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.E.K.NANDAKUMAR SRI.K.JOHN MATHAI RESPONDENT(S): APPLICANTS 1 TO 6: --------------------------------- 1. MADATHY, W/O. DECEASED SUBRAMANI @ SUBRAMANIAN, P.O. PANNIMADE, BUNGALOW DIVISION, VIA. VALPARA, COIMBATORE DIST., TAMIL NADU. 2. ARUMUGHAN, S/O. MADATHY, P.O. PANNIMADE, BUNGALOW DIVISION, VIA. VALPARA, COIMBATORE DIST., TAMIL NADU. 3. CHINNAPPAN, S/O. MADATHY, P.O. PANNIMADE, BUNGALOW DIVISION, VIA. VALPARA, COIMBATORE DIST., TAMIL NADU. 4. VANARAJ, S/O. MADATHY, P.O. PANNIMADE, BUNGALOW DIVISION, VIA. VALPARA, COIMBATORE DIST., TAMIL NADU. 5. KUTHALINGAM, S/O. MADATHY, - P.O. PANNIMADE, BUNGALOW DIVISION, VIA. VALPARA, COIMBATORE DIST.,TAMIL NADU. 6. MARIAMMAL, D/O. MADATHY, - P.O. PANNIMADE, BUNGALOW DIVISION, VIA. VALPARA, COIMBATORE DIST., TAMIL NADU. ADV. SRI.P.V.CHANDRA MOHAN FOR R.1TO6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.F.A.(W.C.C.) No.175 of 2006 ----------------------------------------------Dated 17[th] October, 2011.** ## **J U D G M E N T** ## **K.M.Joseph, J.** Appellant is the respondent in proceedings under Section 22 of the Workmen's Compensation Act. By the impugned order, the Commissioner for Workmen's Compensation has directed the appellant to pay a sum of Rs.1,21,050/- with 12% interest from the date of the accident till the date of deposit. 2. We heard the learned counsel for the appellant and the learned counsel for the respondents. The case of the respondents in brief before the Commissioner is as follows : They are the legal representatives of one Subramanian, who died on 12.1.1998 at about 8.30 a.m. while he was working under the employment of first opposite party as a nursery worker. It is their case that while working as a nursery worker, he suddenly slipped down from the work site and died on the way to hospital. They actually had a case that in the early hours of the day, Subramanian was not keeping well and he felt some discomfort and this fact was intimated to the Manager in MFA 175/06 2 the early morning and asked the Manager to grant him leave for the day. But the Manager denied him leave and compelled him to work. It is their case that due to the compulsion of the employer, the workman was constrained to work on that day, which ultimately culminated in his death. 3. The appellant filed a counter statement. It was after appreciating the evidence which consisted of oral testimony of first respondent, who was examined as AW1, the evidence of a co-worker, who was examined as AW2, two witnesses of the appellant, Exts.A1 to A5 and Exts.M1 and M2, the Commissioner has ordered compensation. 4. Learned counsel for the appellant would urge before us that this is not a case where compensation ought to have been awarded. He contended as follows : The deceased worker was aged 57 years. There was no stress or strain arising out of the work done by the workman in question, as he was only a worker in a nursery. It is only a natural death of a person, who was 57 years old. If he had died at home, he would not have got compensation. The fact that he died at MFA 175/06 3 work site did not entitle him to get compensation. He would also contend that actually the workman died at home. He also drew our attention to paragraph 18 of the decision reported in ## **Regional Director, E.S.I. Corporation v. Francis De Costa** (AIR 1997 Supreme Court 432), which reads as follows : “18. It is doubtful whether this decision can be reconciled with the principle laid down by S.Jafer Imam, J. in the case of Saurashtra Salt Manufacturing Co.(AIR 1958 SC 881)(supra). It is also to be noted that the death was not caused by an 'accident'. The death was due to acute cardiac failure. The casual connection between the death and employment had not been established. Moreover, walking to the bus stop from the employee's residence and boarding the bus for going to the place of work cannot be acts in course of employment.” 5. We notice that in fact that was a case under the Employees' State Insurance Act. No doubt, the issue which the Supreme Court was dealing in AIR 1997 SC 432 related to a case where the employee was on his way to the factory when he met with the accident which took place 1 Km. away from the place of employment. MFA 175/06 4 6. Learned counsel for the respondents/applicants would submit that the very case of the appellant before the Commissioner was that the workman died at home, which is absolutely incorrect. Having regard to the testimony of AW1 and AW2 and in particular, the first information statement given by AW2 within a few hours of the death clearly probabilises the case of the applicants that the death took place at the work site, he contends. The death took place only on account of the physical nature of the work, which was arduous and had the workman not been compelled to work on the said day by the Manager, refusing him to grant leave, the accident could have been averted, he complains. 7. Before we proceed to consider the question, we must remind ourselves that under Section 30 of the Workmen's Compensation Act, a pure question of fact is not open to judicial review. There must exist a substantial question of law. We notice, on a perusal of the order that there was evidence before the Commissioner. The evidence has been appreciated and the Commissioner has arrived at certain findings. Unless MFA 175/06 5 those findings can be dubbed as perverse, if it is otherwise in favour of the applicants, we see no reason why we should interfere, unless a legal contention is established in favour of the appellant. The appellant had specially contended that the death took place at the house of the workman. We are unable to accept this contention, having regard to the evidence of AW1 and AW2. The first information statement is given by AW2 himself. In fact, even Ext.M2 statement given by MW2 is stated to be in support of the workman. If that be so, the death occurred at the work site. The death took place at around 8.30 a.m. The Commissioner has virtually accepted the case of the applicants that the workman was not apparently keeping well on the fateful day and he sought leave and the same was refused. No doubt, learned counsel for the appellant has a case that the workman was actually a temporary worker on daily wages and there is no question of leave, that too, by the Manager and if at all leave is to be granted, it is to be granted by the Field Officer. 8. Learned counsel for the respondents, however MFA 175/06 6 correctly pointed out that there is absolutely no case in the counter statement of the appellant that the deceased workman was a temporary worker and this case was sought to be set up in the course of the evidence. The resultant position is that the Commissioner has proceeded on the basis that the deceased workman had to work on the fateful day and it is on account of the strain emanating from the work in the circumstances which the workman found himself in namely diseased state of the body that the death ensued. 9. First of all, the case of the applicants, which is sought to be established in evidence of AW2 also is that the work is of arduous nature. If the work is of arduous nature, be it as a nursery worker, if the events of the fateful day have precipitated the matter, having regard to the condition in which the workman was in, even if he is a 57 year old man and if he worked only for a very short period of time, we cannot discount such death as not being attributable to employment. In other words, there is a casual connection between employment and death and a finding of fact is rendered by the Commissioner MFA 175/06 7 that the death arose out of employment. In such circumstances, we see no reason at all to interfere with the order. The appeal is dismissed. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy) P.S. to Judge.