JUDGMENT
L. Mohapatra, J.
1. This appeal is directed against the Judgment dated 20th May, 2004 passed by the Learned Commissioner for Workmen’s Compensation and Assistant Labour Commissioner, Balasore in W.C. Case No. 10 of 2001 directing payment of compensation of Rs. 2,29,635/- with a further direction that in the event of failure on the part of the appellant to deposit the award within thirty days, the same will carry simple interest at the rate of 12% per annum.
2. The claimants are the legal heirs of the deceased Satyadev Pandit. Their case before the Commissioner is that the Satyadev Pandit was working as a driver in the truck belonging to respondent No. 8. On 22.1.2001 the deceased drove the truck from Ichhapur to M/s. Birla tyres in the district of Balasore fully loaded with rubber. After reaching the gate of Birla Tyres while the deceased was stepping down from the truck, he lost control over himself and fell down. He was immediately shifted to Balasore Headquarters Hospital where he was declared dead. Postmortem was conducted in the District Headquarters Hospital, Balasore Further claim of the claimants is that the deceased was aged about 37 years and was getting salary of Rs. 3,000/- per month excluding the allowance towards food at the rate of Rs. 30/- per day. The respondent No. 8 who is the owner of the truck and employer of the deceased filed written statement admitting employment of the deceased as well as the incident. The present appellant field a separate written statement denying all the allegations made in the claim petition. On the pleadings of the parties, the Learned Commissioner framed four issues. With reference to the evidence adduced before the Court, the Learned Commissioner found that the deceased was working as driver under respondent No. 8 and had been engaged to drive the truck from Ichhapur to Balasore for delivery of rubber at Birla Tyres. The Learned Commissioner also found that the death of the deceased occurred in course and out of the employment, assessing the salary at Rs. 3,000/- per month, the Learned Commissioner allowed compensation of Rs. 2,29,635/-.
3. Shri G. P. Dutta, the Learned Counsel appearing for the appellant challenges the award on the ground that the evidence adduced before the Learned Commissioner clearly proves that after arrival of the truck near the gate of the Birla Tyres while the deceased was going to attend the call of nature, he suffered from heart stroke and died due to such heart stroke. According to Shri Dutta, there is no connection with the employment and death of the deceased. The deceased having died a natural death unconnected with the work, no compensation could have been allowed in favour of the legal heirs of the deceased. The Learned Counsel for the claimant-respondents on the other hand submitted that the deceased admittedly was working as a driver under respondent No. 8 and he had driven the truck from Ichhapur to Balasore and after driving such a long distance while stepping down from the truck near the gate of Birla Tyres, he suffered heart stroke and died. In view of such nature of evidence, according to the Learned Counsel for the claimant-respondents it can only be said that the death occurred in course and out of employment and that the death has direct nexus with the nature of employment. The Learned Counsel appearing for both the sides also cited decisions in support of their submissions.
4. Before analyzing the decisions cited by the parties, it will be appropriate to refer to the evidence adduced by the parties before the Commissioner. P.W. 1 is the widow of the deceased. In her deposition she has stated that the deceased was working as a driver in the truck belonging to the respondent No. 8. Her husband had driven the truck from Ichhapur to Balasore and in front of the Birla Tyres when he was getting down from the vehicle, suddenly fell down and the local people took him to the District Headquarters Hospital, Balasore where he was declared dead. She has also deposed that the deceased was getting Rs. 3,000/- per month apart from Rs. 30/- every day towards food. Further in cross-examination she has stated that her husband died due to heart attack but nothing more has been brought out in the cross-examination. P.W. 2 is a driver who was working in the vehicle bearing registration No. OR-11A-0363. In his deposition, he has stated that on 22.1.2001 about 5 A.M. while the deceased parked the vehicle near Birla Tyres and was going to submit the challan to the gate-keeper, he fell down from the truck while getting down and was immediately taken to the hospital in the Ambulance of Birla Tyres where he was declared dead. He has also stated that he had parked the vehicle he was driving on that day for unloading thread in Birla Tyres, which he had brought from Pune. Nothing has been brought out in his cross-examination to disbelieve the statement of this witness. On behalf of the Insurance Company, the A.S.I. of Police was examined as O.P.W. 1. In his deposition, he has stated that after receiving information regarding death of the deceased an U.D. Case was registered whereafter a formal FIR was drawn up. He has also stated that during investigation he found that while the deceased was going to attend the call of nature, he fell down on the way and was brought to the hospital dead. The Learned Counsel appearing for the appellant also referred to the FIR. It is stated in the FIR that on the date of occurrence, the deceased had brought the vehicle from Ichhapur with load of rubber and near the factory of the Birla Tyres while getting down from the vehicle, he suddenly fell down and he was declared dead in the hospital. The Learned Counsel also referred to the Final Form submitted by the Police and submitted that in the Final Form it has been specifically endorsed by the Investigating Officer that while going to attend the call of nature the deceased suffered from heart stroke. Reliance is placed on the postmortem report to say that the deceased died due to heart stroke. With the above evidence available on record, let me proceed to examine the decisions cited by the Learned Counsel for the parties.
5. The Learned Commissioner having found that the death was in course and out of employment, the Learned Counsel appearing for the claimant-respondents raised a preliminary objection stating that the finding of the Learned Commissioner being a finding of fact and no substantial question of law being involved in it, the appeal on the above ground under Section 30 of the Workmen’s Compensation Act is not entertainable. In this connection some decisions were cited by the Learned Counsel appearing for both the parties. In the Case of Divisional Forest Corporation, Kendu Leaves, Athamallick v. Chaitanya sahu and Anr. this Court held that the finding to the effect that the deceased was a workman under the appellant and had succumbed to the injuries in an accident arising out and in course of employment is essentially a finding of fact and is not available to be challenged in appeal. The Learned Counsel for the claimant-respondents placed much reliance on the aforesaid decision. This Court in the Case of Divisional Railway Manager v. Smt. P. Vijayatnam reported in 89 (2000) CLT 57 (SC) held that whether the accident took place in course and out of employment is basically a finding of fact and the finding with regard to the same is not available to be challenged in an appeal under Section 30 of the Workmen’s Compensation Act, if such finding does not suffer form any infirmity. In the Case of Divisional Manager, The United India Insurance Co. Ltd. v. Latula alias Tulla Dubey and Ors. his Court held that the phrase “substantial question of law” as used in the proviso to Section 30, Sub-section (1) of the Workmen’s Compensation Act must be given a wider construction than what is to be attributed to it in Section 100 of the Code of Civil Procedure and that the phrase is to be construed to cover a case such as the present one, in which the Commissioner has clearly misdirected himself by committing an error in calculating the age of the deceased. The Patna High Court in the case of Smt. Sumitra Devi v. Executive Engineer, Udar Asthan Irrigation Division, Jahanabad, Gaya reported in 1996 (1) TAC 447 (Pat.) held that the Appellate Court under Section 30 of the W.C. Act cannot interfere with the finding of fact only the ground that two views are possible or on appreciation of evidence a different view than the view taken by the Commissioner can be taken. Section 30 of the Act has to be given a liberal meaning. If the question of law is of arguable nature, then that will be a good ground of appeal under Section 30 of the Act.
6. On analysis of the aforesaid decisions, it is clear that the restriction imposed under Section 30, Sub-section (1) of the Act has be given a wider meaning and on the basis of the evidence, if the Appellate Court is of the view that the finding of fact arrived at by the Commissioner is perverse or no reasonable person can arrive at such finding, the Court can always interfere with such finding of fact in appeal. While exercising the appellate power under Section 30 of the Act, the Court should be conscious that even if two views are possible on the evidence available on record, it would not be justified to interfere with the finding arrived at by the Commissioner. Only when the Court is satisfied that the finding of the Commissioner is perverse and no reasonable person can arrive at such finding on the basis of evidence available on record, it will be open for the Appellate Court to interfere.
7. In the light of the above decisions, the evidence adduced before the Learned Commissioner in the present case should be examined. The case of the claimant-respondents is that the deceased was working as a driver in the truck on 22nd January, 2001. He had driven the truck from Ichhapur to Balasore and after reaching the gate of M/s. Birla Tyres while he was getting down from the vehicle, he lost control over himself and fell down. In the hospital, he was declared dead. P.W. 2 who was present at the spot in his deposition has stated that the deceased while getting down from the vehicle to produce the challan to the gate-keeper, fell down from the truck and was shifted to the hospital where he was declared dead. Much reliance was placed by the Learned Counsel appearing for the appellant on the final report as well as the postmortem report to say that while the deceased after parking the vehicle was going to attend call nature he suffered from heart stroke and died. In the FIR which has been exhibited before the Learned Commissioner, it is clearly stated that the deceased while getting down from the truck near the gate of M/s. Birla Tyres fell down and was taken to hospital where he was declared dead. On the face of such allegation made in the FIR the Investigating Officer submitted a final report stating that while the deceased was going to attend call of nature, he suffered from heart stroke. The Investigating Officer was examined on behalf of the Insurance Company to prove such endorsement in the final report. P.W. 2 is an eye witness to the occurrence and he has stated that while getting down from the vehicle, the deceased fell down and he was shifted to the hospital immediately where he was declared dead. Evidence of this witness to the incident is supported by the allegations made in the FIR lodged by one Amies Singh. In view of the above, I accept the finding of the Learned Commissioner that while getting down from the vehicle, the deceased fell down whereafter he was immediately shifted to the hospital and in the hospital he was declared dead. Admittedly, the deceased suffered from heart stroke and that was the cause of his death. The question that arises for consideration is as to whether the ailment from which the deceased died has any nexus with the nature of job he was discharging. It would be worthwhile to refer some decisions in this regard. In the case of Director (T and M) D.N.K. Project, Ambaguda v. Smt. D. Buchitalli reported in 1987 (I) OLR 158 the Court held that where the employer died of heart failure due to serve stress and strain of the work the same can be brought within the expression “in course and out of employment”. The Workmen’s Compensation Act being beneficial statute, it should be given liberal construction to sub serve the objects of the statute.’ In the aforesaid case, the deceased while coming out of the factory premises after attending to his duty in the morning hours fell down at the main gate and was immediately removed to the hospital where he was declared dead. Evidence was led before the Learned Commissioner to the effect that the deceased was working in the Central Workshop and on the date of incident he had worked for four hours inside the factory premises. He had a heart ailment earlier and on the date of incident the deceased while coming from the factory premises after attending to his duty for four hours he profusedly sweated and fell down near the gate. Considering such evidence, the Court held that stress and strain of the four hours of work the deceased had, must be taken to be an accelerating factor in giving the final blow on account of which deceased died. In the Case of Hindustan Steel Construction Limited v. Nuraisha Khatton reported in 1993 ACJ 501 (Pat) the deceased was a driver of vehicle. While he was fixing/changing tire of his vehicle, he developed severe chest pain and was taken to the hospital where he was declared dead. The doctor opined that death was due to sudden cerebral hemorrhage and shock. Under these circumstance, the Court held that the death was out of and in course of employment. In the Case of State of Rajasthan v. Ramprasada and Anr. reported in 2001 (1) TAC 442 (SC) the deceased died due to lightning. The Apex Court held that though the death due to lightning has no connection with the employment, the claimant can recover compensation by showing that such employment exposed the employee to such injury. If the deceased was working on the site and she would not have been exposed to such hazard of lightning striking her had she not been working so and under the facts and circumstances of the Case the Appex Court upheld the order granting compensation. In the case of Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak reported in 1969 ACJ 422 (SC) the Apex Court explained the law regarding unexplained death. The Court observed as follows:
Where the evidence establishes that the workman was, in the course of his employment, at a place to which some risk particular there to attaches and an accident happens which is capable of explanation solely by reference to that risk, it is legitimate to attribute the accident to that risk, notwithstanding the fact that there is no direct evidence about the immediate circumstances of the accident.
8. So far as present case is concerned, the claimant who has examined herself as P.W. 1 has stated in her deposition that her husband, the deceased, had driven the truck from Ichhapur to Birla Tyres and after reaching the gate of M/s. Birla Tyres while he was getting down from the vehicle, he suddenly fell down. He was immediately shifted to the hospital where he was declared dead. The postmortem report indicated that the deceased died due to heart stroke. P.W. 2 who is an eye witness to incident has stated that on the date of incident the deceased arrived near the gate of M/s. Birla Tyres at about 5 A.M. and after parking the vehicle while he was going to submit the challan to the gate-keeper, he fell down while getting down from the vehicle and was taken to the hospital where he was declared dead. The evidence of P.W. 1 coupled with the evidence of P.W. 2 give a picture that the deceased had driven the vehicle from Ichhapur to M/s. Birla Tyres covering a long distance and the very fact that he arrived in the morning at 5 A.M. near the gate of M/s. Birla Tyres also indicates that he had driven the vehicle at night. Under these circumstances, it can safely be held that due to the driving of the vehicle for such a long distance specially in the night the deceased must have suffered from severe stress and strain. From the postmortem report, it appears that the deceased was aged about 37 years. I am, therefore of the view that though there is no direct evidence to prove that the deceased suffered from heart stroke only due to the stress and strain, the evidence available on record clearly proves that the deceased had driven the truck from Ichhapur to Balasore covering a long distance and appears to have driven the truck in the night also. Under these circumstances, in absence of any direct evidence also it can be held that due to such stress and strain, the deceased died of heart stroke. The Learned Commissioner in this regard having given cogent reason to arrive at such finding, merely because the Investigating Officer in the final report endorsed that the deceased suffered from heart stroke while going to attend call of nature, a different view is not possible. A finding of fact based on reasons cannot be disturbed. I, therefore decline to interfere with the finding of the Learned Commissioner that the death occurred in course and out of employment.
9. Shri Dutta, the Learned Counsel appearing for the appellant also challenges the award on the question of quantum of compensation as well as interest imposed by the Learned Commissioner. On examination of the evidence available on record and the findings, it appears that the wages of the deceased has been assessed at Rs. 3,000/- per month. Since admittedly the deceased was working as a driver of the truck, in my view, assessment of wages of the deceased at Rs. 3,000- per month is not at all high and, therefore, I am not inclined to interfere with the quantum of compensation granted by the Learned Commissioner. The Learned Commissioner in the impugned order has directed that in the event of failure to deposit the award amount within thirty days from the date of order, the appellant shall be liable to pay simple interest at the rate of 12% per annum. This Court as well as the Apex Court have held that while passing award, the Commissioner has no jurisdiction to impose interest and /or direct for payments of interest. The Learned Counsel for the claimant-respondents concedes to such position of law. In view of the above, the direction of the Learned Commissioner for payment of simple interest at the rate of 12% per annum is set aside.
The appeal is allowed to the above extent only.