MFA [ECC] No. 36 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944** **MFA (ECC) NO. 36 OF 2014** **AGAINST THE ORDER DATED 31.10.2012 IN WCC no.9/2010 OF THE** **EMPLOYEE'S COMPENSATION COMMISSIONER, KOLLAM** ## **APPELLANTS/OPPOSITE PARTIES:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE DIRECTOR GROUND WATER DEPARTMENT, THIRUVANANTHAPURAM.** - **3 THE EXECUTIVE ENGINEER, GROUND WATER DEPARTMENT, KOLLAM.** - **4 THE DISTRICT OFFICER, THIRUVANANTHAPURAM DISTRICT OFFICE, KOLLAM.** **BY GOVERNMENT PLEADER SRI.SREEJITH V.S.** ## **RESPONDENTS/APPLICANTS:** - **1 BINDU.L., W/O.LATE B.CHANDRAPRASAD, MARAKKASSERIL THEKKETHIL, PANMANA.P.O., CHAVARA, KOLLAM-691583.** - **2 SMT.CHELLAMMA, M/O.LATE B.CHANDRAPRASAD, MARAKKASSERIL THEKKETHIL, PANMANA.P.O., CHAVARA, KOLLAM, PIN -691583.** - **3 MASTER PRABHIN C., S/O.LATE B.CHANDRAPRASAD, MARAKKASSERIL THEKKETHIL, PANMANA.P.O., CHAVARA, KOLLAM, MINOR REPRESENTED BY THE 1ST PETITIONER, THE MOTHER AND NATURAL GUARDIAN, PIN -691583.** - **4 MS.MEDHU.B., D/O.LATE B. CHANDRAPRASAD, MARAKKASSERIL THEKKETHIL, PANMANA.P.O., CHAVARA, KOLLAM, MINOR REPRESENTED BY THE 1ST PETITIONER, THE MOTHER AND NATURAL GUARDIAN, PIN -691583.** **BY ADVS.SRI.HARISH GOPINATH** **THIS MFA (ECC) HAVING COME UP FOR ADMISSION ON 27.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A [ECC] No.36 of 2014 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** **-------------------------------------------MFA [ECC] No.36 of 2014 -------------------------------------------Dated, this 27[th ] September, 2022.** ## **JUDGMENT** **K.Vinod Chandran, J.** **The wife, mother and two minor children were before the Employees Compensation Commissioner claiming under the Employee's Compensation Act 1923. According to the applicants the husband of the 1st applicant, who was the son of the 2nd applicant and father of other applicants, was a CLR employee under the Groundwater Department who died while on duty. The deceased had been regularly employed by the opposite parties since 1995 and on 24.05.2008 he was deputed for duty at the Alunkadavu work site from 4.00 pm to 12.00 midnight as a night watcher. On the culmination of the shift none turned up for relieving him and despite his request for an alternate arrangement; it was not forthcoming and he was compelled to continue. The 1st applicant was informed about a discomfort, twice by the deceased and she went over the work site to see him lying** M.F.A [ECC] No.36 of 2014 3 **unconscious. This was at about 7 a.m on 25.5.2008 and immediately the 1st applicant took her husband to the nearby Government Hospital at Karunagappally where he succumbed due to a cardiac arrest. It was the allegation that over exertion, stress and strain underwent by the worker in the course of his employment resulted in his death. It was asserted that the deceased had been relieved after his regular shift, death could have been avoided. The applicants claimed Rs.5,68,680/- as compensation for the death of the workman in the course of employment. The learned Commissioner allowed the claim to the extent of Rs.3,71,103/-with 12% interest from the date of accident and Rs.2500/- as funeral expenses. The State is in appeal from the aforesaid order.** **2. The learned Government Pleader Sri.Sreejith appearing for the State would contend that the deceased had not requested his supervisor to make alternate arrangement for manning the shift, next to his regular shift. It is also contended that hearing about the ailment of the deceased, the staff** M.F.A [ECC] No.36 of 2014 4 **of the day shift had rushed to the hospital and extended every possible assistance. It was argued that there can be no stress or strain attributed to the work of the deceased which was a mere Watchman's job resulting in a cardiac arrest. It was argued that the deceased being a CLR worker was not entitled to claim under the Act of 1923. Relying on the judgments of the Hon'ble Supreme Court reported in** _**Jyothi Ademma v. Plant Engineer, Nelloor [(2006) 5 SCC 513]**_ **and** _**Mallikarjuna G.Hiremath v. The Branch Manager, The Oriental Insurance Company [(2009) 13 SCC 405]**_ **, it was contended that the death cannot be said to be one caused out of the employment. Sri.Harish Gopinath argued that the impugned order has to be upheld.** **3. The learned Commissioner, held the definition of workman in S.2(n) brings within its ambit the CLR workmen, who is not a casual labourer and is employed for the purpose of the business carried on by the employer. These exclusionary words were omitted by Act 46 of 2000. The deceased was employed as a watchman at its work site and had been** M.F.A [ECC] No.36 of 2014 5 **continued as a CLR worker continuously since 1995. Definitely he comes under the definition as it existed at the time of death.** **4. Admittedly, the deceased was employed in the shift between 4 p.m to 12 a.m and there was no alternative arrangement made to relieve him of his duty, at the end of the shift. It was also asserted that the usual practice is for the person completing the shift to continue there at, if none relieves him. Both these aspects have not been denied by the appellants before the Commissioner, nor was any evidence adduced to refute the said assertion. At the risk of repetition, it has to be stated that admittedly the watchmen continued after his shift and his request for relief fell on deaf ears. The wife, the 1[st] claimant, categorically deposed in evidence that the deceased husband had informed her of his discomforts and the lukewarm response of the employer to his request for relief. At the break of dawn, the wife went to the work site and found her husband unconscious. He was taken to the hospital, but he succumbed to the cardiac arrest he suffered.** M.F.A [ECC] No.36 of 2014 6 **5.** _**Jyothi Ademma**_ **[supra] was a case under the Act of 1923 and the deceased workman died at the work spot, which death was alleged to be attributable to the stress and strain closely linked with the employment of the deceased workman. Therein, the death was due to heart attack and there was no stress or strain attributable to the specific work assigned to the workman. The contention of the claimants was that whenever a person dies at the work spot, even as a result of a cardiac arrest, the cause should be attributable to the stress and strain of the working conditions. Therein, it was specifically brought on record that the deceased was suffering from chest disease and was being treated for the same. The work assigned was only switching on and off a machinery, which work, as opined by the Doctor, does not create any stress or strain.** **6.** _**Mallikarjuna G.Hiremath**_ **was a case in which the driver of the vehicle drowned, when he was taking bath in a pond; while the passengers in the vehicle were being taken to a Temple as per the directions of the employer. The High Court found** M.F.A [ECC] No.36 of 2014 7 **that there is not even a casual connection between the death and the vehicle and hence there would be no liability on the insurer under the Motor Vehicles Act, 1988 to indemnify the employer for the compensation due under the Act of 1923. The Hon'ble Supreme Court specifically noticed the words employed in S.3 of the Act of 1923, which speaks of a personal injury caused to the workman by accident arising out of and in the course of his employment. Accident, according to their Lordships, is used in the popular and ordinary sense of the word, denoting an unlooked for mishap or an untoward event; not expected or designed. As far as 'arising out of' and 'in the course of the employment', there are two conditions to be fulfilled; one relating to the time, as to whether he was in service and discharging duties, and then to the casualty. It was held that the injury must arise both out of and in the course of employment and the instant drowning was not at all arising out of the employment.** **7. In the present case, the specific case of the employer was that there is no history of heart** M.F.A [ECC] No.36 of 2014 8 **attack. It is also an admitted fact that the workman was not relieved from his duty even after his regular shift was completed. The duty assigned to him was of a watchman and the shift was between 4 p.m to 12 a.m. It required the workman to be awake throughout his duty and continuously ensure that there is no intrusion into or theft carried out from the work site. It is not a casual duty of switching on and off a machinery and requires constant vigilance throughout the duty hours. Even at the culmination of the shift, the watchman was not relived, which totally interferes with a man's sleep cycle. This is especially relevant due to the vigilance required on the job. The workman had complained of discomforts to his employer, which fell on deaf ears. He had also complained to his wife, who could not have helped him, especially in the night time. But on daybreak, she was at the work site, where the workman was lying unconscious. We are of the definite opinion that the death was caused due to the untoward mishap of a cardiac arrest arising out of and in the course of the** M.F.A [ECC] No.36 of 2014 9 **employment. The overstay in the shift caused the mishap and we find no reason to interfere with the findings of the Commissioner.** **8. As to the quantum, there is no ground raised against the computation, but for a bland assertion that the amount computed and interest are excessive and high. The learned Commissioner had adopted the wages actually drawn by the employee and accepted the date of birth as available in the records of the employer. The multiplicand was correctly adopted and we find no reason to interfere with the quantum. The interest was one applicable at the time of death in 2008, almost 14 years before. We find no reason to reduce the same, especially since the widow, mother and the minor children were waiting all these years. The applicants shall be entitled to file a petition before the appropriate authority for the disbursal of amounts and if there is any short fall, the same shall be made up by the respondent State within a period of three months from the date of receipt of the certified copy of this judgment. As far as the disbursal of amounts** M.F.A [ECC] No.36 of 2014 10 **deposited together with interest, it shall be made immediately on the application being filed.** **The MFA is dismissed. Parties left to suffer** **the costs.** **Sd/-** **K.VINOD CHANDRAN, JUDGE Sd/C.JAYACHANDRAN, JUDGE** **sp/29/09/2022**