JUDGMENT
R. Banumathi, J.
1. Challenge in this appeal is to the order of Deputy Commissioner of Labour, Coimbatore, awarding Rs. 1,47,200/- for the death of Periyasami while he was working in Tea Estate.
2. Relevant facts which are necessary for disposal of this appeal is as follows: Periyasami husband of the first Respondent/claimant was a permanent worker in the second respondent’s Estate. He was grazing cattle for the Estate. On 29.07.2000, due to sickness, Periyasami did not attend work. On 30.07.2000, he had taken the cattle for grazing. At about 4 p.m., he had developed chest pain and he was admitted in Estate Hospital. Again on the next day, i.e. 31.07.2000, Periyasami developed chest pain and heart attack and he was taken in Ambulance to Karumalai Group Hospital. Periyasami died of heart attack on the early hours on 01.08.2000. Alleging that the death arose out of and in the course of employment, the first respondent claimant filed Petition under Section 10 of the Workmen’s Compensation Act, claiming compensation of Rs. 1,56,599/-.
3. Opposing the claim, Insurance Company filed counter stating that the worker Periyasami died due to TB and some heart ailment on 01.08.2000, which was a holiday. The deceased Periyasami did not come for work on 01.08.2000. The worker had taken treatment for his TB ailment at Perundurai Hospital and only because of his pre-existing ailment, the worker died. Since the accident did not arise out of and in the course of employment, the Insurance Company is not liable to pay compensation.
4. Before the Deputy Commissioner, the first Respondent claimant examined herself as PW-1. One Sagayam was examined as PW-2. On the side of respondent, representative of estate was examined as RW-1. Exs. P-1 and P-2 were marked on the side of the claimant. One witness was examined on the side of respondent and Ex. R-1 was marked. Upon consideration of oral and documentary evidence, the Deputy Commissioner held that inspite of sickness, on 29.07.2000, the worker Periyasami attended work on 30.07.2000 and he suffered heart attack due to stress and strain in the work. On those findings, the Deputy Commissioner held that the death arose out of and in the course of employment and held that the employer and insurer are liable to pay compensation and ordered compensation of Rs. 1,47,200/-.
5. Challenging the impugned Order, the learned Counsel for the Appellant has submitted that by mere heart attack, it cannot be said that death arose out of and in the course of employment for milking the Insurance Company to pay the compensation. It was further submitted that there was nothing on record to show that the death was consequence of stress and strain in the employment nor was there any nexus between the employment/cattle grazing and the heart attack and the Deputy Commissioner erred in awarding compensation. In support of his contention, the learned Counsel for the Appellant placed reliance upon Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali.
6. Countering the arguments, the learned Counsel for the first respondent/claimant has submitted that the evidence of PW-1 would show that though the work assigned to the deceased was grazing cattle, it involved stress and strain and the death was due to such stress and strain in the work. It was further submitted that when the Deputy Commissioner has recorded a factual finding that the death arose out of and in the course of employment, such factual finding cannot be interfered with by the High Court.
7. For making out a claim under the Workmen’s Compensation Act, it is necessary for the claimant to establish definite casual connection between the work and the accident/sickness leading to the death. Compensation can be awarded only if the accident arose out of and in the course of employment and as a result of stress and strain in the work.
8. There is no denying that the deceased Periyasami was a permanent employee under the second respondent and he was assigned work of grazing the cattle. Admittedly, the deceased attended work on 28.07.2000. On 29.07.2000, he did not work due to sickness. Inspite of his sickness, the deceased workman attended the work on 30.07.2000 and he developed chest pain at 4 p.m. He was admitted in the Estate Hospital. PW-1 has stated that her husband was given medicine and after check up, he came back to the house. Again at about 9 p.m. on the same day, deceased developed chest pain and he was taken to Karumalai Group Hospital where he died of heart attack on the early hours of 01.08.2000. PW-1 has stated that her husband was grazing cattle in the hilly terrain for about 25 years. Grazing in hilly terrain normally involves trekking up and down, which naturally involves stress and strain. Nothing was suggested to PW-1 that the work does not involve any stress and strain. PW-2 has also corroborated the evidence of PW-1.
9. Contending that circumstances must exist to establish that death was caused because of stress and strain of work, the learned Counsel for the Appellant-Management has placed reliance upon the case Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali, wherein, the deceased workman/cleaner, while travelling in the vehicle suffered massive heart attack. Observing that the death by the same itself cannot give raise to an inference that the job was strenuous, referring to various case laws the Supreme Court has enumerated the principles as under:
23. There are a large number of English and American decisions, some of which have been taken note of in ESI Corporation (supra), in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act.
24. The principles are:
(1) There must be a casual connection between the injury and the accident and the accident and the work done in the course of employment.
(2) The onus is upon the Applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.
(3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case.
25. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed.
26. There is a crucial link between the causal connections of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction.
27. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred.
In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:
1. stress and strain arising during the course of employment;
2. nature of employment;
3. injury aggravated due to stress and strain.
28. The deceased was travelling in a vehicle. The same by itself cannot give rise to an inference that the job was strenuous.
29. 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 his behalf.
30. 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 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.
10. For making out a Claim under the Act, it is necessary to establish definite casual connection between his work and the accident leading to the death. Observing that the mere fact that death had taken place while the deceased was on job is not enough and that onus of proof lies upon the Claimant in the decision Mackinnon Machenzie and Co. (P) Ltd. v. Ibrahim Mahmmed Issak, the Supreme Court has held as follows:
To come within the Act the injury by accident must arise both out of and in the course of employment. The words “in the course of employment” mean in the course of the work which the workman is employed to do and which is incidental to it. The words “arising out of employment” are understood to mean “during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which unless, engaged in the duty owing to the Master, it is reasonable to believe the workman would not otherwise have suffered”. In other words, there must be casual relationship between the accident and the employment. The expression “arising out of employment” is again not confined to the mere nature of the employment. The expression applies to employment as such” to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises out of employment. To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for consideration must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.
11. In the Sakuntala Chandrakanth case, the cleaner of the vehicle died due to massive heart attack. In the said case before the Supreme Court, nothing has been brought on record to show that heart attack was caused while doing any job. Even according to the employer, the deceased at the relevant point of time was merely getting down from the vehicle. The driver of the vehicle, who was brother of the deceased was the best evidence to speak as to under what circumstances death was caused or death occurred. Driver of the vehicle did not examine himself. Doctor who performed the postmortem was also not examined. Under such circumstances, the Supreme Court has observed that there must be some evidence that the employment contributed to the death of the deceased and it is required to be establish that the death occurred during the course of employment. In the said case, since evidence was found to be lacking and best witness was not examined, Supreme Court has held as follows:
26. There is a crucial link between the causal connections of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction.
12. As observed by the Supreme Court, circumstances must exist to establish that the death was caused by reason of failure of heart and it was because of strain of work. Stress and strain resulting in sudden heart failure is not a matter of presumption. Each case is therefore to be considered on its own facts and no hard and fast rule could be laid down therefor.
13. As held by the Hon’ble Supreme Court in Sakuntala Chandrakanth case, each case is to be considered on its own facts and circumstances. Onus of proving that death arose out of in the course of employment is upon the claimants. Claimant/first respondent has stated that her husband was grazing cattle in the estate for about 25 years. As stated earlier, grazing cattle in a hilly terrain involves climbing up and down, which normally involves stress and physical strain. The deceased workman was already aged 50 years. Climbing hilly terrain would involve stress and strain. There is no prior complaint of chest pain. Though the deceased worker was not doing well on 29.07.2000, still he had chosen to attend work on 30.07.2000. Clearly, attending work on 30.07.2000, has precipitated the ailment. Upon analysis of facts and evidence, the learned Deputy Commissioner has rightly held that the death was due to stress and strain, which arose out of and in the course of employment.
14. The finding of the Deputy Commissioner that death arose out of and in the course of employment is a finding of fact and it cannot be said to be based on surmises and conjectures or a mere guess work. Inference of the Deputy Commissioner of Labour that the deceased workman had stress and strain while grazing the cattle appears to be a legitimate inference. In my considered view, the evidence of P.W.s 1 and 2 and the nature of work, coupled with ailment on 29.07.2000 would induce any reasonable mind to draw such inference of stress and strain involved in the work.
15. As held by the Supreme Court in Mackinnon Machenzie and Co. (P) Ltd. v. Ibrahim Mahmmed Issak, “Although the onus of proving that the injury by accident arose out of and in the course of employment rests upon the applicant, these essentials may be inferred when the facts proved justify the inference. On the one hand, the Commissioner may not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it”.
16. In [Kerala], it was laid down that the finding recorded by the Commissioner on taking a particular view of the evidence, cannot be questioned however erroneous, as no question of law can be said to have arisen in such cases. The Commissioner while handling cases under the Act has to deal with the evidence tendered by the claimants and on evaluation of entire evidence, findings have to be entered and such findings cannot be called in question invoking the power under Section 30 of the Act unless a substantial question of law is arising from such findings. It is axiomatic that when there is no question of law, there cannot be any question of general public importance or any question directly and substantially affecting the rights of parties.
17. No specific ground is made out for interfering with the factual finding of the Deputy Commissioner of Labour that the death arose out of and in the course of employment. No substantial question of law is shown to be involved in this appeal. The appeal is devoid of merits and is bound to fail.
18. In the result, the award dated 30.11.2001 passed in WC No. 11/2001 on the file of the Commissioner for Workmen’s Compensation (Deputy Commissioner of Labour), Coimbatore, is confirmed and this C.M.A. is dismissed. No costs. Claimant is entitled to withdraw the compensation amount along with the accrued interest.