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2008 Supreme(Bom) 1478
2009(3) ALL MR 872
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(NAGPUR BENCH)
C.L. PANGARKAR, J.
M/s. National Products - Appellant
VERSUS
Smt. Shalu wd/o. Ramlal Kumbhalkar & Ors. - Respondent
First Appeal Nos.465, 852 of 2008
Decided On: 10th October, 2008.
Mr. R.K. BORKAR, Advocate for the Appellant.
Mr. HITESHN. VERMA, Advocate for the Respondents.
Headnote:Workmen’s Compensation Act, 1923 - Section 3 - Death in course of employment - Employee worker in establishment owned by appellant-respondents are relative of deceased employee - During working at office the employee died due to heart attack - Claim compensation filed before Commissioner - Compensation Commissioner found death taken place in duty hence appellant liable to pay compensation - Issue as to death due to heart attack would be covered in due course of employment - Held - If deceased suffered heart attack suddenly while removing moulding, must be assumed, he suffered such attack due to strain - Commissioner rightly awarded. - In First Appeal No. 465 of 2008, the deceased was working in a Cement Pipe Factory and he was medically fit and he died while removing the moulding. The present appellant employer has averred in the reply in special pleading as follows :
It is submitted that Ramlal was working with its non-applicant as a helper (unskilled worker) on wages of Rs. 18/- per day. That on 5.7.1991 when he was doing the job of removing mouldings from the RCC Pipe the diameter or which was 300 mm at about 11 a.m. be suddenly fell down on the floor. The other co-workers rushed him to the office. Dr. Avaghate was called to examine him. The doctor after examining the deceased declared him to be dead due to heart failure.
These averments clearly go to show that the deceased died when he was removing the moulding and he died of heart failure. Post mortem report of deceased Ramlal is placed on record. He was a young man of 28. The findings which are relevant for Court’s purpose are recorded in Col. No. 20. The findings show that the right lung was normal and left was congested. The heart and large vessels were normal and the heart was empty. There was, therefore nothing abnormal in the heart or larger vessels supplying blood, yet the deceased suffered an heart attack and died. It is not that the deceased had heart ailment any time. The findings of the post-mortem report also do not show that he had any kind of heart ailment. If the deceased was really hale and healthy and had no ailment of heart at all and if the suffered heart attack suddenly while removing the moulding it must be assumed that he suffered such attack due to the strain. As pointed out earlier, the Commissioner has taken into consideration the admission of the employment in the written statement that death of the deceased had taken place while removing a moulding of 300 mm diameter. The moulding of casting Cement Pipe of 300 diameter ought to be very heavy. Therefore while removing such heavy moulding, it must have caused a strain. If, therefore the deceased suffered an attack suddenly, it must be attributed to that physical strain. There is therefore certainly nexus between the death and nature of work and employment. The Commissioner of Workmen’s Compensation, therefore, has rightly awarded the compensation in Appeal No. 465 of 2008.
First Appeal No. 465 of 2008 is dismissed.
Rule, heard forthwith with consent of parties.
2. Both these appeals can be decided by common judgment since identical questions arise in them. They arise out of orders passed by the Commissioner of Workmen's Compensation.
3. Facts in Appeal No.465 of 2008 are as under -
One Ramlal Kumbhalkar was working in the Cement Pipe Factory owned and run by appellant/non-applicant. Respondents are the widow and children of said Ramlal. On 5/7/ 1991, Ramlal Kumbhalkar went to the Cement Pipe Factory where he was engaged as a labourer. He was paid Rs.18/- per day. It is alleged that while he was removing the molding of the Pipe, he all of a sudden fell down and the doctor was called. The doctor noticed that Ramlal had died on the spot of heart attack. The appellant/non-applicant's representative informed the police of death of Ramlal in the factory on account of heart attack. The non-applicant/appellant did not pay the compensation to the applicants/respondents, hence they filed an application for compensation under the Workmen's Compensation Act.
4. The application was resisted by the non-applicant/appellant. It is admitted by the non-applicant/appellant that Ramlal died while he was removing the moulding from the Cement Pipe. It is also admitted that doctor was called and he examined and declared that Ramlal had died of heart-attack. It is the contention of the non-applicant that the death of the deceased had not occurred due to any negligence on the part of the non-applicant/ appellant and since he died of heart-attack, appellant is not liable to pay any compensation. The application initially came to be decreed ex-parte. The appellant thereafter applied for setting aside the ex parte award. It was set aside and thereafter appellant contested this application.
5. The Workmen's Compensation Commissioner found that since the death had taken place while the deceased was discharging his duty in the factory, the appellant/non applicant was liable to pay compensation to the applicants/respondents. He directed sum of Rs.45,747/- to be paid along with penalty of 50% and interest at 6%. Being aggrieved by that order, this appeal has been preferred by the appellant/non-applicant.
6. In Appeal No.852 of 2008, the deceased was engaged as a Watchman in the Gondkhairy Plantation of the Forest Department. It is alleged that on 24/9/2005, the deceased was on duty. It was the duty of the deceased to drive away the stray cattle entering into the plantation area and to take care of the plants in the plantation and the fencing around the plantation. It is alleged that on the day of the incident some stray cattle had entered into the plantation area. The deceased as well as other employee ran behind the cattle to drive them out and deceased while driving them out fell down and suffered heart attack and died.
7. The appellant/N.A. does not dispute that the deceased was engaged as a daily wager. It does not dispute that it was one of the duties of the deceased to drive away the cattle in order to protect the plants in the plantation area. It is the contention of the appellant that the deceased was suffering from a coronary heart-disease and he died of that and not due to any stress or strain of the employment.
8. The learned Commissioner of Workmen's Compensation, however, found that since the death had occurred during the course of the employment, respondents were bound to pay compensation and he directed sum of Rs. 1,86,448/- to be paid to the heirs of the deceased.
9. Both these appeals though are filed as first appeals, they necessarily need to be admitted only on the substantial question of law. The following substantial
question of law arises for determination in both the appeals.
"Whether heart -attack could be said to be an injury suffered during the course of the employment due to the nature of work discharged by the deceased and such injury had at least casual connection with the work discharged by the deceased employee?"
10. Before we ad
