National Insurance Co. Ltd. v. P.K.Reena 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 FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 MFA.No. 219 of 2009() --------------------W.C.C.191/2004 of Commissioner for Workmen's Compensation. KANNUR. APPELLANT(S): 2ND OPPOSITE PARTY: --------------------------------- NATIONAL INSURANCE CO. LTD., CHENNAI, REPRESENTED BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, KOCHI-35. BY ADV. SRI.E.M.JOSEPH RESPONDENT(S): - --------------- 1. P.K.REENA, W/O.LATE P.K.MOHANAN, PEEDIKAKANDIYIL HOUSE, P.O.KOTTAYAMPOYIL, PATHAYAKUNNU, THALASSERY. 2. P.K.NIMISH, S/O.LATE P.K.MOHANAN, PEEDIKAKANDIYIL HOUSE, P.O.KOTTAYAMPOYIL, PATHAYAKUNNU, THALASSERY. 3. P.K.NISHIL, S/O.LATE P.K.MOHANAN, PEEDIKAKANDIYIL HOUSE, P.O.KOTTAYAMPOYIL, PATHAYAKUNNU, THALASSERY. 4. P.K.NISHIMA, D/O.LATE P.K.MOHANAN, PEEDIKAKANDIYIL HOUSE, P.O.KOTTAYAMPOYIL, PATHAYAKUNNU, THALASSERY. 5. V.SUNDARAN, S/O.KUNHAMBU, MEETHALE CHENGARATH HOUSE, P.O.KOTTAYAMPOIL, THALASSERY. ADV. SRI.R.SURENDRAN FOR R1,4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.F.A.(W.C.C.) No.219 of 2009 ----------------------------------------------Dated 14[th] October, 2011.** ## **J U D G M E N T** ## **K.M.Joseph, J.** Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act. It challenges the award of compensation by the Commissioner. The following questions of law were raised before the Commissioner: - “(a) Whether the applicant is a workman within the meaning of this Act. - (b) Whether the accident arose out of and in the course of applicant's employment. - (c) Whether the amount of compensation is due or any part of the amount. - (d) Whether the opposite parties are liable to pay such compensation as is due.” The case of the applicants was that the workman, who was working as a driver in a bus died while in the course of employment. According to the appellant, the deceased workman was a known CAD (coronary artery disease) patient MFA 219/09 2 and therefore, compensation should not have been granted. It is contended that there is no evidence also for coming at a conclusion that the workman died on account of any stress or strain arising from the employment. 2. Learned counsel for the appellant would also draw our attention to the decision reported in **Shakuntala v. Prabhakar [** 2006 (4) KLT 1031 (SC)], wherein, it is inter alia stated as follows : “32. Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf. 33. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction MFA 219/09 3 therefor can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor. x x x xx x x 42. Unless evidence is brought on record to elaborate that the death by way of cardiac arrest has occurred because of stress or strain, the Commissioner would not have jurisdiction to grant damages. In other words, the claimant was bound to prove jurisdictional fact before the Commissioner. Unless such jurisdictional facts are found, the Commissioner will have no jurisdiction to pass an order. It is now well-settled that for arriving at a finding of a jurisdictional fact, reference to any precedent would not be helpful as a little deviation from the fact of a decided case or an additional fact may make a lot of difference by arriving at a correct conclusion. For the said purpose, the statutory authority is required to pose unto himself the right question.” 3. He drew our attention to the evidence of AW1, who is none other than the wife of the deceased workman, in MFA 219/09 4 support of the same. He further raised a contention about the interest that it cannot be awarded from the date of the accident. 4. Learned counsel for the respondents/applicants supported the order. He would point out that this is a case where the deceased workman was employed as driver of a bus and he died after he developed chest pain while he was driving. He stopped the vehicle and he was taken to the hospital and he died. He would submit that the deceased had put in long hours. 5. As far as the question of interest is concerned, learned counsel would submit that the direction to pay interest from the date of accident is unsustainable. He would submit that only upon adjudication, the liability arises and therefore interest could be ordered only from the date of the adjudication and not from the date of the accident. Learned counsel relied on the judgments of the Supreme Court in **National Insurance** MFA 219/09 5 **Co.Ltd. v. Mubasir Ahmed & Another** [2007 AIR SCW 1265], **Kamla Chaturvedi v. National Insurance Co** . [2008(4) KLT 862 (SC)] and **Palraj v. Divisional Controller, NEKRTC** [2010-JT-10-94]. They are all judgments rendered by two judges benches. No doubt, they tend to support the case of the appellant. However, we notice that the question engaged the attention of the Apex Court and a bench of four judges in **Pratap Narain Singh Deo v. Srinivas Sabata** [(1976)1 SCC 289] held as follows : “It is wrong to contend that the compensation had not fallen due until it was 'settled' by the Commissioner under Section 19 by his impugned order dated May 6, 1969. The employer became liable to pay the compensation as soon as the personal injury was caused to the workman by the accident which admittedly arose out of and in the course of employment. There was no suspension of the compensation pending settlement. It was the duty of the appellant, under Section 4A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. So in the present facts and circumstances the MFA 219/09 6 Commissioner was fully justified in making an order for the payment of interest and the penalty.” No doubt, it is pointed out that the said case related to a scheduled injury and the facts were different. Thereafter, similar question arose before this Court in **National Insurance Company Ltd. v. Rekha** [2007(4) KLT 386]. Therein also, the decision in **National Insurance Co.Ltd. v. Mubasir Ahmed & Another** [2007 AIR SCW 1265] was considered by the Division Bench and it was interalia held as follows : “In Mubasir Ahamed's case, Maghar Singh's case was relied, but, directed to pay interest from the date of award only on the basis of the facts of that case. Wide powers vested in the Hon'ble Supreme Court under Art.142 of the Constitution of India are not available to the Tribunal or even to the High Courts while deciding a statutory appeal. (See the observations in Delhi Development Authority v. Skipper Construction Co.(P) Ltd. (AIR 1996 SC 2005). We are bound by statutory provisions and law declared by the Apex Court as mandated by Art.141 of the Constitution as held in Suganthi Suresh Kumar v. Jagdheesan (2002) 2 SCC 420). MFA 219/09 7 When there is conflict between the decisions of the Supreme Court, decision of the larger Bench will prevail (See : Mattulal v. Radhe Lal (AIR 1974 SC 1596). In view of the statutory provisions and larger Bench decision, we see no ground to interfere in that part of the order in awarding interest from the date of accident. We also note that this ground was not raised before the Commissioner or even in the appeal memorandum, but only raised as an additional ground by filing petition dated 7.6.2007 in the appeal filed in the year 1998. However, we see no ground to interfere in the impugned award and hence this appeal is dismissed.” However, it is pointed out that the matter is pending in appeal before the Supreme Court against the aforesaid judgment of the Division Bench of this Court. 6. The same view was taken by another Division Bench in an employer's appeal in **Harrisons Malayalam Ltd.** **v. P.K.Ashraf and Others** [2009(1) KHC 799 (DB)]. In the light of the said legal position, we do not find any merit in the contention of the appellant. 7. As far as the second point is concerned, there is MFA 219/09 8 some merit in the contention of the appellant. No doubt, it is true that the workman was the driver of a bus. He would point out certain distinguishing features in this case. According to him, this is a case where Ext.A1 would reveal that the deceased workman was a known patient of CAD(coronary artery disease). He points out that when the wife of the deceased workman was examined, she however made it appear as if the disease manifested for the first time on the fateful day. This cannot be true, he points out, as it is incompatible with the terms of Ext.A1 certificate. We also notice that there is no evidence as such by the wife of the deceased workman, who is the sole witness examined on behalf of the applicants, as to the nature of the duties and whether the stress and strain was the cause of death, or contributing to the cause of death. It is further pointed out that there is no finding as such by the Commissioner that the deceased workman died as a result of the stress and strain attached to the work. MFA 219/09 9 8. In the circumstances of the case, we would think that the matter may have to be remanded with liberty to the parties to adduce evidence. Accordingly, we set aside the impugned order and remit the matter back. The Commissioner will take up the matter and dispose of the same within a period of four months from the date of production of a copy of the judgment before the Commissioner. Parties are free to adduce evidence. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy) P.S. to Judge.