MFA No.71 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** ## **MFA.No.71 OF 2013** **AGAINST THE ORDER DATED 24-04-2012 IN W.C.C.NO.101/2008 OF THE COURT OF COMMISSIONER FOR WORKMEN'S COMPENSATION COURT, THIRUVANANTHAPURAM.** ## **APPELLANT/2ND OPPOSITE PARTY:** **THE DIRECTOR, KERALA STATE INSURANCE DEPARTMENT, K.S.H.B. BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM.** **BY SR.GOVERNMENT PLEADER SRI. M.V. ANANDAN** ## **RESPONDENTS/RESPONDENT/APPLICANT & 1ST OPPOSITE PARTY:** |**1**|**RADHA,**| |---|---| ||**W/O. KRISHNAN CHETTIYAR,**| ||**KEEZHATHIL VEEDU,T.C.21/1959,NEW**| ||**T.C.56/1900,ARASUMMODU,NEDUMCAUD,KARAMANA. P.O,**| ||**THIRUVANANTHAPURAM.PIN695002**| |**2**|**UDAYA KUMAR,SUCHETHA NILAYAM,**| ||**T.C.3/770,T.K.D ROAD,**| ||**MUTTADA,THIRUVANANTHAPURAM,PIN 695025**| ||**R1 BY ADV. SRI.P.V.ANIL**| ||**R2 BY ADV. SRI.G.SUDHEER**| **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21-12-2020, THE COURT ON 22-12-2020 DELIVERED THE FOLLOWING:** M.F.A.No.71/2013 -:2:- Dated this the 22[nd] day of December,2020 ## J U D G M E N T The appellant who challenges the impugned order granting compensation to the applicant in W.C.C.No.101/2008 before Commissioner for Workmen's Compensation, Thiruvananthapuram, is the insurer. 2. The application was filed by the mother of the deceased, K.Vijayan, who was a driver employed by the first opposite party, who is the second respondent in this appeal. The appeal was filed by the second opposite party, the State Insurance Department with whom the lorry bearing registration No.KL-01-K-8559 was insured. This lorry having national permit was taken by the deceased from Thiruvananthapuram to Baroda with load on 19.02.1999. The contention of the applicant before the Commissioner was that when the lorry reached Surat on 23.02.1999, the deceased felt severe stomach pain and after he was rushed to Sanjeevani Hospital, Palsana, Surat for treatment, he died the same day. M.F.A.No.71/2013 ## -:3:- 3. The claim for compensation was made before the Commissioner after seven years and therefore, a separate delay petition was also filed along with claim petition. The appellant and the first opposite party, employer filed objections to the delay petition as well as claim and seriously contested the proceeding. 4. On the side of the applicant, mother was examined as AW1 and Exts.A1 to A6 were received in evidence. No other evidence was tendered from either side. 5. After considering the evidence on record and hearing the parties, the Commissioner found that there was sufficient cause for delay in instituting the claim and accordingly, he condoned the delay. On merits, he found that the applicant had a legal claim for compensation and accordingly, impugned order for compensation of Rs.4,11,900/- was passed with interest fastening ultimate liability on the appellant, Kerala State Insurance Department. 6. Being aggrieved by the impugned order, the State has filed this appeal. 7. I heard the learned counsel for the M.F.A.No.71/2013 -:4:- appellant and the first respondent/applicant. 8. The substantial question of law on which this appeal was admitted is whether the Commissioner erred in condoning delay of long seven years without evidence and was justified in awarding compensation when there was no personal injury sustained by the deceased. 9. It is seen that delay petition was not independently considered before entertaining the claim for compensation. The delay petition as well as the claim was considered jointly and disposed of by the impugned order dated 24.04.2012. The contention of the learned counsel for the appellant is that there was no evidence on record establishing the sufficient cause pleaded and when order condoning delay is passed without evidence, it forms a substantial question of law as to whether such a decision was legally sustainable. 10. The cause pleaded in the delay petition is that the applicant and her husband being illiterate and poor had to depend on intermediaries, who did not give proper advice. Further, her husband was in bed rest due to rheumatic fever and she was all the time along M.F.A.No.71/2013 ## -:5:- with him as bystander looking after his affairs. Under Section 10 of the Employee's Compensation Act, 1923(for short,'the Act') the claim for compensation ought to be filed within two years and in appropriate cases, the Commissioner has power to condone delay, if explained with sufficient cause. This legal position could be discerned from The Nagapattinam Import and Export Corporation v. K. Lakshmi [1993(1) T.A.C.598]. 11. It could be seen that in spite of serious objection taken to the delay petition denying the grounds pleaded, no evidence was adduced by the applicant in proof of the alleged sufficient cause raised before the Commissioner. Nobody knows whether the applicant's husband was bedridden due to rheumatic fever nor she was taking care of him as bystander for all these seven years. The Commissioner has not given any reason for condoning delay, except stating that being a claim made in a death case, delay ought to be condoned. In the absence of evidence in support of alleged sufficient cause, the Commissioner was not justified in ordering condoning of delay at all that, too, without assigning reasons. M.F.A.No.71/2013 -:6:- 12. Even assuming that this was a fit case where the delay ought to be condoned also, I do not find that the applicant has got a legal claim on merits also. 13. This is not an ordinary case of a worker sustaining personal injury and putting forward a claim for compensation from his employer. 14. The specific case of the applicant in paragraph No.2 of the Original Application is that when the lorry driven by her son reached Surat on 23.02.1999, he took food and felt pain in his stomach. He was immediately rushed to Sanjeevani Hospital, where he died the same day. When evidence was given, she developed a case that the pain was developed while the deceased was in the course of riding the lorry. 15. The learned counsel for the first respondent referring to the statement given by the co-driver recorded in panchanama prepared by the state officials, submitted that the deceased felt pain during the course of his riding the vehicle. Even taking this statement as true also, I am of the opinion that the applicant failed to establish that the death of her son was on account of M.F.A.No.71/2013 ## -:7:- accident arising in the course of the employment as stipulated in Section 3 of the Act. 16. The expression “accident” though not defined in the Act ought to be understood as an untoward incident which happens unexpectedly. In order to entitle a person to claim compensation under the Act, he should suffer personal injury which should have casual connection or nexus between the employment and the accident. Unless the injury complained of, has connection with the employment in which the deceased was engaged, he cannot make a legal claim for compensation. In the present case, he did not sustain any physical injury, except that he had a complaint of stomach pain. No doubt stomach or chest pain could be taken as an injury since it cannot exist independent of body. But unless stomach pain had casual connection or association with the work in which the deceased was employed, it cannot be reckoned to be an accident so as to fasten liability on the employer for payment of compensation. 17. The stomach pain is not seen to be dealt with in any part of the impugned order as the M.F.A.No.71/2013 ## -:8:- cause for the accident. Law in this regard could be justified from a decision reported in Kerala Fire and Rescue Services v. Vijayalakshmi [2020(6) KLT 90] in which the Hon'ble Apex Court had been relied on. 18. Ext.A3 death certificate issued by Medical Officer, M.G.G. General Hospital, Palsana, shows that death was on account of poisoning. In Ext.A4 postmortem report also, the final cause of death is shown as poisoning. No medical evidence, other than Ext.A4 was brought on record. Looking at the entire facts and circumstances, it appears that the death was on account of food poisoning. Then one fails to comprehend as to how could the death of the deceased be held to be an accident arising in the course of his employment. Even assuming that the stomach pain was experienced in the course of riding the vehicle also, the cause of the accident being food poisoning, it could never be said to be casually connected or associated with the work in which the deceased was engaged. This question was not examined by the Commissioner in the right legal perspective. No clear finding has been entered as to cause of M.F.A.No.71/2013 -:9:- death. I am satisfied that a grave error was committed by the Commissioner in upholding the claim of the applicant for compensation. The impugned order passed is not legally sustainable. The substantial questions of law raised are answered in favour of the appellant. In the result, appeal succeeds and impugned order dated 24.04.2012 is set aside dismissing W.C.C.No.101/2008. All pending interlocutory applications will stand closed. Sd/- ## T.V.ANILKUMAR,JUDGE DST //True copy/ P.A.To Judge