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