Meera Flores Estate v C. MuthuseLVAN, Selvarani, Jayachitra and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 14TH DAY OF AUGUST 2017/23RD SRAVANA, 1939** **MFA.No. 214 of 2010 ( ) ------------------------** **AGAINST THE ORDER IN WCC.151/2007 OF WORKMEN COMPENSATION, PALAKKAD DATED 11-06-2010 APPELLANT/IST OPPOSITE PARTY:** **---------------------------------** **MEERA FLORES ESTATE, PADAGIRI P.O., NELLIYAMPATHY - 678 509 (REP. BY ANILKUMAR K.P. (EXECUTIVE ADMINISTRATION AND OPERATION).** **BY ADV. SRI.K.MOHANAKANNAN** **RESPONDENTS/APPELLANTS AND 2ND OPPOSITE PARTY:** **-------------------------------------------------** **1. C.MUTHUSELVAN, S/O.(LATE) CHINNAYYA PILLAI, 65/60A, KALLAMPALAYAM 1ST STREET, KANDASWAMY COMPOUND, THIRUPPUR-678 101** **2. SRI.SELVARANI, W/O.IYYAPPAN, 65/60A, KALLAMPALAYAM, 1ST STREET KANDASWAMY COMPOUND, THIRUPPUR-678 101** **3. JAYACHITRA, D/O.LATE CHINNAYYA PILLAI, 65/60A, KALLAMPALAYAM, 1ST STREET KANDASWAMY COMPOUND, THIRUPPUR-678 101** **4. UNITED INDIA INSURANCE CO.LTD., NEMMARA P.O., PALAKKAD - 678 508.** **R1 TO 3 BY ADV. SRI.A.JAYASANKAR R4 BY ADV. SRI.P.V.JYOTHI PRASAD** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vdv** ## **K. Harilal & Sathish Ninan, JJ. ================================ M.F.A No.214 of 2010 ========================== Dated this the 14[th] day of August, 2017** ## **JUDGMENT** ## **Sathish Ninan,J** An award passed by the Commissioner under the Workmen's Compensation Act, 1923 is under challenge by the employer. 2. The applicants before the Commission are the legal heirs of one Chinnayya Pillai. Admittedly, he was employed as a security watchman under the appellant/employer. It is the case of the applicants that on 09.09.2004 while Chinnayya Pillai was on duty he fell down and sustained injuries on his chest. He was taken to a hospital where he succumbed to the injuries. Accordingly the claim for compensation is made. The first respondent filed written statement denying the claim. It was contended that during the relevant period the estate was on lock out and hence MFA No.214/2010 2 the contention of the claimants that the deceased was employed during the period cannot be accepted. The commissioner, on analysing the evidence in the case, held that the death occurred out of and in the course of employment under the appellant/employer and directed to pay an amount of `1,51,765/- with 12% interest to the claimants. It is under challenge in the appeal. ## 3. Heard the learned counsel on either sides. ## 4. The following Substantial Questions of Law are arise for consideration: 1. Whether deceased Chinnayya Pillai was a workman defined under Section 2(1)(n) of the WCC Act, 1923, in view of the fact that the estate was on lock out but there was no employment to any of the staff borne out from Ext.B1, B2 and B3? 2. Whether a death occurred due to Heard Attack from a different estate run by another company can be treated as a death during the course of employment as defined under the W.C.C Act and whether the claimants are MFA No.214/2010 3 entitled to get compensation due to the same? 3. Whether the tribunal has justified in allowing the claim for compensation on the face of the fact that the applicants have not discharged their burden to prove the case put forward by them? 5. It is the contention of the appellant/employer that a claim for compensation under the Workmen's Compensation Act, 1923 can be sustained only if it is proved that the accident arose out of and in the course of employment under the employer. According to the learned counsel, in the case at hand there is no evidence to show that the death occurred out of and during the course of the employment. It is contended that going by the documents produced on behalf of the opposite party marked as Exts. D1 and D2, it is beyond challenge that during the relevant period the estate was on lock out. It is further contended that though the case as put forward by the claimants is that the deceased suffered injuries consequent to the alleged MFA No.214/2010 4 fall, there is no evidence that any injury has been sustained by the deceased. 6. The fact that during the relevant period the estate was on lock out is not disputed by the learned counsel for the claimants. But according to him, the fact that the estate was on lock out does not mean that the services of a watchman was not utilized by the employer. In the evidence of DW1, it is stated that the duty of watchman is to see that the articles of the estate are secured from theft and that on all days during day and night time watchman was being employed in the estate. As suggested by the learned counsel for the claimants, it is during the period when the estate is on lock out that the services of a watchman is required the most. As regards the occurrence, the commission has relied upon the evidence of AW2. AW2 has deposed that he was the co-worker along with the late Chinnayya Pillai. He has described the incident that took place on 09.09.2004. According to MFA No.214/2010 5 him, on the said date the estate was closed due to lock out and that when the deceased was driving away a monkey from the premises he fell in a pit and sustained chest injuries. He was taken to a hospital wherein he succumbed to injuries. He died of heart failure and obviously the injury spoken to is not an external injury. The substance of the contention is that the stress and strain that occurred due to the running and fall lead to heart attack and he succumbed to the same. Though it is contended on behalf of the learned counsel for the employer that during the relevant period the deceased was working in another estate, there is total dearth of evidence in the said regard. On an appreciation of the oral evidence of AW2, who is the sole witness to the incident, the commissioner has chosen to accept the same. We do not find any material to find that his evidence is unreliable or interested. No evidence has been brought to our notice to come to a conclusion that the MFA No.214/2010 6 deceased was not working in the estate in question at the relevant time. The learned counsel for the appellant/employer relied upon the decision of the Apex Court reported in **Jyothi Ademma v Plant Engineer, Nellore & Another (AIR 2006 SC 2830)** wherein the claim by the legal heirs of an employee who died due to heart failure was not granted. That was a case where the deceased employee was previously suffering from heart disease and was being treated for the same. In the present case there is no contention that the deceased was suffering from any heart disease prior to the accident. We do not find any reason to interfere with the finding of the Commissioner that the accident arose out of and in the course of the employment under the employer/appellant. The said findings are only to be confirmed. 7. Coming to the quantum awarded, it has not been substantiated that the same is unsustainable or illegal. It has not been so contended before us. As MFA No.214/2010 7 regards the rate of interest, we find that interest has been awarded at the rate of 12 % per annum, which is excessive. We are of the opinion that the interest rate can be re-fixed at 6% per annum. 8. The Substantial Questions of Law are answered as above. In the circumstances, the appeal is allowed in part. The rate of interest awarded will stand modified as 6% per annum. The impugned order will stand confirmed in all other respects. ## **K.Harilal, Judge** ## **Sathish Ninan, Judge** vdv //TRUE COPY// P.A TO JUDGE