High Court of KeralaDivision BenchAppeal allowed partly

MFA No. 470 of 2001-B

Case / Petition Number:MFA No. 470 of 2001-B

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • J.B. Koshy
  • K.P. Balachandran
Judgment Date
2007-05-24
Court Decision / Holding
Appeal allowed partly; death compensation was not granted as death was held not to be connected with employment or the accident; however, compensation for the injury-related disability (35%) was recognised and calculated as Rs.35,674 with 6% interest. The court condoned the delay, allowed the wife to withdraw Rs.25,000 from the deposited amount, and directed balance disbursement to dependents with any excess deposited to be refunded.
Final Disposition
Appeal allowed partly

Parties to the Case

Appellants / Petitioners

  • Divisional Manager, National Insurance Co. Ltd., Thiruvananthapuram

Respondents

  • M. Santha
  • Commissioner, Corporation of Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri P. Jayasankar

Counsels for Respondents

  • • Sri N. Nandakumara Menon, SC, TVM Corp.
  • • Sri Gopakumar R. Thaliyal

Case Synopsis & Summary

This Kerala High Court judgment arises from MFA No. 470 of 2001 under the Workmen's Compensation Act. The Divisional Manager, National Insurance Co. Ltd., appeals against an order of the Workmen's Compensation Commissioner who had awarded compensation for death to the widow of V. Sreekantan, a driver employed by the Thiruvananthapuram Corporation, who died in 1994 following injuries from an accident on 8 March 1988. The insurer contended that the application under Section 22 was time-barred since the accident occurred in 1988 and the application was filed in 1995, well beyond two years. It was further argued that the death had no connection to the employment or to the alleged accident, that no timely notice was given, and verification was hindered. The Commissioner had condoned the delay and found that the death was consequent to the injuries from the accident and awarded compensation. On appeal, the Division Bench examined Ext. A1 medical evidence showing 35% disability but observed no evidence linking the death to the accident, noting the death occurred due to cardiac arrest in 1994, more than six years after the incident. Relying on Jyothi Ademma v. Plant Engineer (AIR 2006 SC 2830), the Court held that death had no connection with employment, so death compensation could not be granted. However, the court allowed partial relief for the injury-related disability and computed compensation at Rs.35,674 with 6% interest, with specific directions on deposits and withdrawals. The appeal was thus partly allowed.

Provisions of Law Cited

Section 22 of the Workmen's Compensation Act

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicant-insurer argued that the application under Section 22 of the Workmen's Compensation Act was barred by limitation, since the accident occurred on 8 March 1988 and the application was filed in 1995—more than two years later. It was further contended that the death of the deceased (on 26 June 1994) had no connection to the original employment or to the alleged accident; no timely notice of the accident was given, hindering verification. The insurer pressed for denial of death compensation and argued that the Commissioner erred in attributing the delay and misapplying evidence. It was asserted that the death arose from natural causes (cardiac arrest) and had no causal link to the injuries from the 1988 accident. The insurer admitted that the accident caused 35% disability but argued that compensation for death could not be granted; instead, if any compensation is due, it should be limited to the injury-related disability and a maximum earnings cap of Rs.1,000.

Contentions of Respondents

Respondents contended that the accident occurred during the course of employment and led to disability, and that the death, though due to a later natural cause, was connected to the injury sustained in the accident or the stress of employment. They argued that the evidence (medical Ext. A1, Ext. A4 showing death while in service) established a work-related nexus; they urged that death compensation be payable to dependents, and that the maximum earnings rule should be applied or distinguished appropriately, given the period between accident and death. They argued that the initial burden rests on the applicant to show death arising out of employment or at least a casual connection with the employment, and that the Commissioner correctly considered the evidence, allowing the death claim.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Jyothi Ademma v. Plant Engineer, Nellore and anotherAIR 2006 SC 2830PositiveCourt relied on this Supreme Court decision to hold that death had no connection with employment or employment injury, thus death compensation is not warranted.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **&** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **THURSDAY, THE 24TH MAY 2007 / 3RD JYAISHTA 1929** **MFA.No. 470 of 2001(B)** **---------------------------------** **WCC.68/1995 OF WORKMENS COMPENSATION COURT, THIRUVANANTHAPURAM.** **....................** ## **APPELLANT/2ND OPPOSITE PARTY:** **----------------------------------------------------** **THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., THIRUVANANTHAPURAM.** **BY ADV. SRI.P.JAYASANKAR.** ## **RESPONDENT/APPLICANT AND 1ST OPPOSITE PARTY:** **--------------------------------------------------------------------------------** **1. M. SANTHA, T.C. 25/287, VAYALNIKATHIYA PUTHEN VEEDU, THAMPANOOR, TRIVANDRUM.** **2. THE COMMISSIONER, CORPORATION OF THIRUVANANTHAPURAM.** **BY ADV. SRI.N.NANDAKUMARA MENON,SC,TVM CORPN., SRI.GOPAKUMAR R.THALIYAL.** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2007,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ORDER ON C.M.P. NO. 1139/2002 IN M.F.A. NO. 470/2001-B** ## **DISMISSED** **24/05/2007.** **SD/- J.B.KOSHY, JUDGE. SD/- K.P.BALACHANDRAN, JUDGE.** **//TRUE COPY//** **prv.** **J.B. KOSHY and K.P.BALACHANDRAN, JJ. ---------------------------M.F.A. No. 470 of 2001 ----------------------------** ## **Dated this the 24th day of May, 2007** ## **Judgment** ## **Koshy, J.** First respondent filed an application under section 22 of the Workmen's Compensation Act alleging that her husband V. Sreekantan employed by the second respondent sustained personal injuries while driving a tiller KLV 6018 on 8.3.1988 at about 7.30 a.m. Her further case is that he died on 26.6.1994 consequent to the injuries sustained by him on 8.3.1988. He was aged 32 years and his monthly income claimed was Rs.1,046/-. The claim was for Rs.1,01,925/-. It was contended by the appellant insurance company that the application is barred by limitation. The claim ought to have been filed within two years from the date of the alleged accident. Accident occurred on 8.3.1988. Application was filed only in 1995 after seven years of the alleged accident. Secondly it was contended that death of the husband of the first respondent has no connection with the employment or alleged accident. Since no notice of accident was given in time, company officers were unable M.F.A.No.470/2001 2 to verify also. Commissioner for Workmen's Compensation rejected both contention and came to the conclusion that death was due to the injuries in the accident and hence awarded compensation for death. 2. With regard to the question of time bar on going through the file it is seen that Commissioner has condoned the delay. Occurrence of the accident also cannot be disputed in view of the documentary evidence. Ext.A1 issued by the Medical College Hospital, Thiruvananthapuram reads as follows: "This is to certify that Mr.C.Sreekantan, 32 years, of Corporation of Trivandrum was treated for C.S.O.M. (Lt) following alleged R.T.A. He was admitted for mastoidectomy (Lt) on 3.5.1988. He was admitted in the hospital for seven days. He has bilateral S.N.H. Loss left more than that of right. His total permanent disability is 35%. Because his pre and post operator audiogram shows following values: **==> picture [236 x 66] intentionally omitted <==** Exts.A5 to A9 show that he was continuously under treatment for heart trouble. Ext.A7 reads as follows: M.F.A.No.470/2001 3 "Your patient Sree Kadan was seen in our department. He has got C.S.O.M. Tubo tympanic type on the left side - Post OP mastoidectomy which does not need any treatment. Audiogram shows left sensorineural hearing loss. For the activity of the disease on the left side he has been advised Cap. Cephalexine, Tab. Bromhexine, Tab. Actifed and Norflox ear drops with usual precautions to follow. Right ear is normal. Hence there is no need for a hearing aid. We have explained this to the patient." Ext.A4 proceedings of the Trivandrum Corporation shows that he died on 26.7.1994 while in service. Medical records leading to his death or any treatment details after 1992 were not produced. No doctor was examined. There is no evidence to show that the accident or injury caused by the accident has got any connection with his death. Ext.D2 shows that he died of 'cardiac arrest'. It is true that evidence of AW1 and pleadings of both parties show that the deceased was a workman employed by the second respondent Trivandrum Corporation and while he was working as the driver of Tiller owned by the second respondent, he met with an accident by which he suffered hearing loss of one ear and doctor assessed 35% M.F.A.No.470/2001 4 disability, but, there is no evidence to show that it has got any connection with his death due to cardiac arrest occurred after more than six years of the accident. There is no case that stress or strain of the employment caused his death. Commissioner held as follows: "In this case, there is no inquest report being the death of Sri.Sreekantan to prove the cause of his death. Otherwise a medical officer had to confirm the cause of the death of Sreekantan. In the absence of such a medical examination report I hold that the accident occurred to Sri.Sreekantan on 8.3.1988 out of and in the course of his employment with the 1st opposite party had lead to affect the interior parts of his head which resulted in his death on 26.6.1994. This issue is decided accordingly." We are of the opinion that Commissioner was not correct with the above reasoning. Initial burden is on the applicant to show that death was arising out of employment or death has got at least a casual connection with the employment. Here, death was due to natural cause - cardiac arrest - and there is no evidence to show that it has got even a casual connection with the employment or injury caused in the accident occurred six M.F.A.No.470/2001 5 years prior to his death. In this connection, we refer to the decision of the Apex Court in Jyothi Ademma v. Plant Engineer, Nellore and another (AIR 2006 SC 2830). Here, death has no connection with employment or employment injury. Hence, award of compensation for death cannot be granted. But, as already noted that he met with an accident on 8.3.1988 during the course of employment and he suffered injuries and as a result he lost complete hearing power of one ear and qualified medical practitioner certified that there is 35% disability (Ext.A1) and considering his age the relevant factor is 203.85. Even though he was drawing more than Rs.1,000/- during the date of accident maximum earnings that can be taken for calculation of compensation is Rs.1,000/-. Hence, compensation payable will be Rs.1000 x 50 x 203.85 x 35 = Rs.35,673.75 rounded to 100 100 Rs.35,674/-. In view of the fact that there was much delay in filing the application, his dependents are entitled to interest at the rate of 6% only from the date of application, that is, 23.1.1995, till the date of deposit of the compensation, that is, 9.3.2001. Claimant/wife of the deceased is allowed to withdraw M.F.A.No.470/2001 6 Rs.25,000/- from the amount deposited by the insurance company. Balance amount due to the dependent shall be disbursed after deducting the amount, if any, already disbursed. Excess amount deposited shall be refunded to the appellant forthwith. Appeal allowed partly. ## **J.B.KOSHY** **JUDGE** **K.P.BALACHANDRAN JUDGE** vaa M.F.A.No.470/2001 7 **J.B. KOSHY AND K.P.BALACHANDRAN, JJ.** -------------------------M.F.A.NO.470/2001 -------------------------- **JUDGMENT** Dated:24th May, 2007