Jancy vs Emmanuel Thomas on 24 September, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA.No. 594 of 2003()


1. JANCY W/O. JOSEPH, MULLAMKUZHIYIL HOUSE,
                      ...  Petitioner
2. NEENU (MINOR) D/O. JOSEPH REPRESENTED
3. MANU D/O. JOSEPH (MINIR) REPRESENTED

                        Vs



1. EMMANUEL THOMAS, PUTHUPARAMBIL HOUSE,
                       ...       Respondent

2. THE NEW INDIA ASSURANCE COMPANY LTD.,

                For Petitioner  :SRI.RAJEEV V.KURUP

                For Respondent  :SRI.V.PHILIP MATHEW

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :24/09/2008

 O R D E R
                      C.N.RAMACHANDRAN NAIR &
                             HARUN-UL-RASHID, JJ.
                 ....................................................................
                               M.F.A. No.594 of 2003
                 ....................................................................
                Dated this the 24th day of September, 2008.

                                        JUDGMENT

Ramachandran Nair, J.

Heard counsel for the appellants, Standing Counsel for the second

respondent-Insurance Company and counsel for the first respondent. Appeal

is filed challenging the order of the Workmen’s Compensation

Commissioner whereunder he declined to grant any compensation to the

appellants. The first appellant is the wife and the remaining are minor

children of a person who while driving a mini lorry died of heart attack.

Even though the vehicle was covered by a policy of insurance which

includes coverage for employees like driver, cleaner etc., the Workmen’s

Compensation Commissioner declined to grant benefit for the reason that

there is no evidence to prove that heart attack was caused on account of

strain in the employment as driver. Counsel for the appellants has relied

on decision of this court in MANAGER, THENGACKAL ESTATE V.

REETHAMMAL & ANR. (1996(1) KLJ 623) and that of the Supreme

Court in SHAKUNTALA CHANDRAKANT SHRRESHTI V.

PRABHAKAR MARUTI GARVALI (AIR 2007 SC 248). Counsel for the

2

Insurance Company has also relied on the same decision of the Supreme

Court referred above. A Division Bench of this court in the first decision

abovereferred held that if the death is accelerated on account of the stress in

the employment, then the claimants are entitled to compensation. In the

second decision relied on by both the parties even though the Supreme

Court declined to grant compensation, they have held that if the evidence on

record establishes a greater possibility which satisfies a reasonable man that

the work contributed to the causing of personal injury, it would be enough

for the workman to succeed, but the same would depend on facts of each

case. The objection of the Insurance Company based on this decision is not

tenable because in the decision of the Supreme Court, the person who died

of heart decease was a cleaner who was not engaged in work at the time he

developed the heart problem while traveling in the vehicle. However, in this

case the facts show that the deceased was driving the goods vehicle from

11′ O clock in the morning and he got the heart decease at around 2.30 in

the afternoon. The Postmortem certificate shows that the death is on

account of coronary heart decease leading to heart failure. The claimants

have not examined the Doctor to prove that the heart decease could be

accelerated on account of the stress in driving a goods vehicle. The

appellants’ case is that the deceased was not a heart patient and respondents

also have not adduced any evidence to show that the deceased suffered any

3

heart problem prior to the date on which he died while driving the vehicle.

Since the Doctor was not examined, medical opinion is also not available as

to whether the strain in the employment of driving a goods vehicle would

have accelerated the disease and was the immediate cause of the heart

failure. However, we are not in a position to rule out the chances of strain

in the employment i.e. driving a goods vehicle, as the immediate cause of

acceleration of the heart decease that led to the death of the driver. Since

the vehicle was covered by an Insurance policy and since there was a

possibility of strain in the employment accelerating the hear decease, we

feel a reasonable compensation can be granted to the appellants.

Accordingly, we allow the claim in part by directing the Insurance Company

to give a compensation of rupees one lakh to the appellants with statutory

rate of interest from date of application till date of deposit. The appeal

stands allowed to the above extent.

C.N.RAMACHANDRAN NAIR
Judge

HARUN-UL-RASHID
Judge
pms