{"id":271292,"date":"2011-04-08T00:00:00","date_gmt":"2011-04-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-managing-director-vs-smt-subbulakshmi-on-8-april-2011"},"modified":"2014-03-31T22:59:23","modified_gmt":"2014-03-31T17:29:23","slug":"the-managing-director-vs-smt-subbulakshmi-on-8-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-managing-director-vs-smt-subbulakshmi-on-8-april-2011","title":{"rendered":"The Managing Director vs Smt.Subbulakshmi on 8 April, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
The Managing Director vs Smt.Subbulakshmi on 8 April, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:08\/04\/2011\n\nCORAM\nTHE HONOURABLE MS.JUSTICE K.B.K.VASUKI\n\nC.M.A(MD)No.846 Of 2005\nand\nC.M.P.No.5270 of 2005\n\nThe Managing Director,\nHighland Parade Resort,\nM\/s. Highland Holiday Homes Pvt. Ltd.,\nNear Kurinchi Andavor Kovil,\nVilpatti Village and Post,\nKodaikanal Taluk.                  ...  Appellant\/\n\t\t\t\t\t Respondent\n\nVs.\n\n1. Smt.Subbulakshmi\n2. Rajamanikam\n3. S.Geetharani            \t    ...  Respondents\/\n\t\t\t\t\t Claimants\n\nPRAYER\n\nCivil Miscellaneous Appeal filed under Section 30<\/a> of the Workmen's\nCompensation Act<\/a>, against the award, dated 14.09.2004 made in W.C.No.53 of 2004,\non the file of the Deputy Commissioner of Labour, Dindigul.\n\n!For appellant     ... Mr.K.M.Vijayakumar\n^For 1st Respondent... Mr.C.K.M.Appaji\nFor respondents\n   2 and 3         ... No Appearance\n\n \t\t\t      * * *\n\n:JUDGMENT\n<\/pre>\n
\tThe appeal is filed by the employer against the award of compensation of
\nRs.1,53,090\/- with interest at 12%p.a. in favour of the wife, son and daughter
\nof one Shanmugam, who died on 22.01.1999 due to heart attack, while he was in
\nnight duty as Watchman at Highland Parade Holiday Resort at Kodaikanal.  The
\nclaimants 1 to 3 have filed the claim petition before the Commissioner of
\nWorkmen’s Compensation cum Deputy Commissioner of Labour, Dindigul, against the
\nManager, Highland Parade Resort, Kodaikanal, on the ground that the deceased was
\nemployed as night watchman in the respondent’s holiday resort from 1996 onwards
\nand he has been continuously on work during night hours in chill climatic
\ncondition during the month in question, as a result,  he had heart attack and
\ndied inside the resort while on duty and as death is out of and in the course of
\nemployment, the respondent\/employer is liable to pay compensation to the
\nclaimants.\n<\/p>\n
\t2. The respondent has, in para.5 of the written statement of objection
\nfiled by them, admitted that the deceased was employed in their holiday resort,
\nbut further stated that he was employed by Asian Security Services on the
\nstrength of an agreement between the respondent and the Security Services and
\nthe agreement lapsed on during December 1998 i.e. before the occurrence date and
\nthe respondent has not employed him on his own and is not answerable for the
\nclaim of the petitioners.\n<\/p>\n
\t3. The claimants and the respondent have in support of their respective
\ncontentions examined the first claimant as P.W.1 and the accountant of the
\nrespondent as RW1 respectively and the claimants have also produced Ex.P.1\/death
\ncertificate and Ex.P.2\/ration card.\n<\/p>\n
\t4.The Workmen Compensation Commissioner\/Deputy Commissioner for Labour,
\nDindigul has, on the basis of the evidence adduced before the same, found that
\nthe deceased was employed as security guard in the respondent holiday resort and
\nhe died on 22.01.1999 due to heart attack sustained out of and in the course of
\nhis employment and hence held the respondent liable to pay compensation to the
\nclaimants and awarded Rs.1,54,090\/- as compensation.  Hence, this appeal by the
\nrespondent.\n<\/p>\n
\t5. The respondent has in his memorandum of grounds raised two substantial
\nquestions of law and this appeal is admitted on the same substantial questions
\nof law which are as follows;\n<\/p>\n
\t\t“(a) Whether an employer is liable for payment of compensation under
\nthe Workmen’s Compensation Act<\/a> for death due to heart attack which is not
\ndirectly attributable to any specified injury by accident arising out of and in
\nthe course of employment?\n<\/p>\n
\t\t(b)Whether “heart attack” can be said to be an occupational disease
\nas contemplated under the Act?”\n<\/p>\n
\t6. Though the respondent has denied the employer and employee relationship
\nbetween the deceased and the respondent, and though the Workmen Compensation
\nCommissioner has on the basis of the available evidence arrived at a conclusion
\nthat the deceased was employed as security guard in the respondent holiday
\nresort and he died on 22.01.2009 in the place of employment, while he was on
\nduty, the correctness of such factual finding is not questioned by the
\nrespondent by raising any substantial questions of law in this appeal.   The
\nsubstantial questions of law raised in this appeal is that the cause of heart
\nattack resulting in death is not directly attributable to the nature of his
\nemployment and hence death cannot be treated as employment injury due to any
\naccident occurred out of and in the course of his employment.\n<\/p>\n
\t7.Heard both sides.\n<\/p>\n
\t8.For the purpose of understanding the claim made under challenge and the
\nobjection raised against the same, it is but relevant to refer to Section 3<\/a> of
\nthe Workmen’s Compensation Act<\/a>, 1923 (hereinafter referred to as “the Act”)
\nwhich specifies the circumstances under which the employer is liable for
\nworkmen’s compensation.  Sections 3(1)<\/a>, 3(2)<\/a> & 3(2)(a)<\/a> of the Act reads as
\nfollows;\n<\/p>\n
\t“3.Employer’s liability for compensation. – (1) If personal injury is
\ncaused to a workman by accident arising out of and in the course of his
\nemployment, his employer shall be liable to pay compensation in accordance with
\nthe provisions of this chapter: …..\n<\/p>\n
\t(2)If a workman employed in any employment specified in Part A of Schedule
\nIII contracts any disease specified therein as an occupational disease peculiar
\nto that employment, or if a workman, whilst in the service of an employer in
\nwhose service he has been employed for a continuous period of not less than six
\nmonths (which period shall not include a period of service under any other
\nemployer in the same kind of employment) in any employment specified in Part B
\nof Schedule III, contracts any disease specified therein as an occupational
\ndisease peculiar to that employment, or if a workman whilst in the service of
\none or more employers in any employment specified in Part C of Schedule III for
\nsuch continuous period as the Central Government may specify in respect of each
\nsuch employment, contracts any disease specified therein as an occupational
\ndisease peculiar to that employment, the contracting of the disease shall be
\ndeemed to be an injury by accident within the meaning of this section and,
\nunless the contrary is proved, the accident shall be deemed to have arisen out
\nof, and in the course of, the employment:\n<\/p>\n
\tProvided that if it is proved,-\n<\/p>\n
\t(a)that a workman whilst in the service of one or more employers in any
\nemployment specified in Part C of Schedule III has contracted a disease
\nspecified therein as an occupational disease peculiar to that employment during
\na continuous period which is less than the period specified under this sub-
\nsection for that employment, and”\n<\/p>\n
\t9.Our Apex Court has in the judgment reported in AIR 2007 SC 248
\n(Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali), after discussing
\nthe case laws, particularly the case in Employees’ State Insurance Corporation
\nVs. Fancis De Costa, reported in AIR 1997(I) LLJ 34 (SC) laid down the following
\nprinciples with regard to essential ingredients to attract the provision of
\nSection 3<\/a> of the Act.\n<\/p>\n
\t“The principles are:\n<\/p>\n
\t(1)There must be a casual connection between the injury and the accident
\nand the work done in the course of employment.\n<\/p>\n
\t(2)The onus is upon the applicant to show that it was the work and the
\nresulting strain which contributed to or aggravated the injury.
\n\t(3)If the evidence brought on records establishes a greater probability
\nwhich satisfies reasonable man that the work contributed to the causing of the
\npersonal injury, it would be enough for the workman to succeed, but the same
\nwould depend upon the facts of each case.\n<\/p>\n
\t4)Injury suffered should be a physiological injury. Accident, ordinarily,
\nwould have to be understood as unforeseen or uncomprehended or could not be
\nforeseen or comprehended.  A finding of fact, thus, has to be arrived at, inter
\nalia, having regard to the nature of the work and the situation in which the
\ndeceased was placed.\n<\/p>\n
\t5)There must be a crucial link between the casual connections of
\nemployment with death.  Such a link with the evidence cannot be a matter of
\nsurmise or conjecture.  If a finding is arrived at without pleading or legal
\nevidence the statutory authority will commit a jurisdictional error while
\nexercising jurisdiction.\n<\/p>\n
\t6)An accident may lead to death but that an accident had taken place must
\nbe proved.  Only because a death has taken place in course of employment will
\nnot amount to accident.  In other words, death must arise out of accident.
\nThere is no presumption that an accident had occurred.\n<\/p>\n
\tIn a case of this nature to prove that accident has taken place, factors
\nwhich would have to be established, inter alia are:\n<\/p>\n
\t(a)stress and strain arising during the course of employment;\n<\/p>\n
\t(b)nature of employment; and\n<\/p>\n
\t(c)injury aggravated due to stress and strain.”\n<\/p>\n
\t10.The Division Bench of our High Court in the judgment reported in
\n2003(3) MLJ 314 (P.Kalyani Vs. The Divisional Manager, Southern Railway
\n(Personal Branch), Divisional Office, Madras) has also laid down that in order
\nto attract Section 3(1)<\/a> of the Act, three conditions are to be fulfilled. They
\nare: (i) personal injury; (ii)  accident and (iii) arising out of and in the
\ncourse of employment. The Personal injury under the Act means physiological
\ninjury and it may be external or can be internal.  The expression “accident” is
\nthough not defined under the Act has been the subject matter of number of
\ndecisions and has conferred a settled meaning and the word “accident” is used in
\nordinary and in popular sense and it means a mishap or untoward event which is
\nnot expected or designed.  It means some happening at the definite point of time
\nand the incapacity resulting from the happening. The expression “in the course
\nof employment” emphasizes the time when the accidental injury was caused and
\n“out of employment” emphasizes that there must be a causal connection between
\nthe employment and the accidental injury. Further the expression “arising out of
\nthe employment” is not confined to the mere nature of employment, but applies to
\nthe employment, as such to its nature, its conditions, its obligation and its
\nincidents as held by the Supreme Court in the judgment reported in 1969 (2) SCC
\n607 (Mackinnon Machenzie and Co. Private Limited Vs. Ibrahim Mohammed Issak).\n<\/p>\n
\t11.Only in the light of the above legal position, the claim of the
\npetitioners is to be now appreciated. As already referred to, the fact that the
\nemployee died due to heart attack during night hours inside the place of
\nemployment is not disputed.  But, that by itself will not, as rightly observed
\nby the Apex Court in the judgment reported in Shakuntala Chandrakant Shreshti
\ncase (AIR 2007 SC 248) give rise to automatic presumption that the same was by
\nway of accident. It is further held by the Apex Court in the case cited above
\nthat the burden is upon the claimants to establish the existence of the
\ncircumstances that the nature of the employment is such and involves stress and
\nstrain and the heart attack is caused due to some risk incidental from the
\nduties of the service and the nature of duties contributed to the death and
\nthere is thus crucial link between the employment and death and such a link
\ncannot be a matter of surmise or conjecture and no legal fiction can be raised
\nin this regard. The Supreme Court has in the same judgment observed that
\nalthough the onus of proving that the injury by accident arose out of and in the
\ncourse of employment rests upon the claimant, these essentials may be inferred
\nwhen the facts proved justified such inference and the inference is hence
\nlegitimate and the nature of evidence to be adduced need not be beyond
\nreasonable doubt, but must be such as would induces a reasonable man to draw
\nsuch inference.\n<\/p>\n
    \t12.Our High Court has also in the judgment reported in 2009 (I) MLJ 495
\n(National Insurance Company Limited Vs. A.Saroja and others) expressed the view
\nthat even an ordinary strain in the given circumstances of the case would be
\nenough to cause injury or death and the same has to be held in the course of and
\nout of employment and the claimant is entitled for compensation.  The further
\nstand taken is that the  claimant is expected in law to show that the workman
\nsuffered injury or death due to strain or stress drawn from work which in
\nparticular circumstances were sufficient to cause injury or death. It is not
\nnecessary to prove that the injury or death are caused by the stress and strain
\nbeyond any doubt as in a criminal case but it is enough to show the
\npreponderance of probabilities which would form a premise that the claimant’s
\nversion is probable.\n<\/p>\n
\t13.According to the claimants, the deceased sustained heart attack due to
\nstress and strain drawn on account of nature and pressure of his work as night
\nduty watchman in such chill climatic condition in hill resort, that too
\ncontinuously for days together during the particular month in question.  Such
\ncontention raised in the claim petition is not resisted by the respondent either
\nin the counter or in the course of cross examination of PW1.  The same is also
\nnot denied in the course of chief examination of RW1. But, the same is so
\nseriously disputed before this Court and it is contended on the side of the
\nrespondent that the death was only due to heart attack having no connection with
\nthe employment and also not due to any injury sustained in any accident occurred
\nin the course of employment and the claimants are hence not entitled to claim
\nany compensation from the respondent\/employer.   However, in view of the ratio
\nlaid down by the Supreme Court in the judgment reported in AIR 1999 SC 1441
\n(Vidhyadhar Vs. Mankikrao) to the effect that where a party to the suit does not
\nappear in the witness box and state his own case on oath and does not offer
\nhimself to be cross-examined by the other side, the presumption would arise that
\nthe case set up by him is not correct, as such the failure of the respondent to
\nseriously dispute it in the counter and in the witness box and to raise any
\npositive stand and to adduce any contrary evidence, presumption that could be
\ndrawn is that the    objection raised by the appellant herein could not be
\nsustained.\n<\/p>\n
\t 14.Further, the majority of Full Bench of Assam High Court in the
\njudgment reported in AIR 1963 Assam 127 Full Bench (Assam Railways and Trading
\nCo. Ltd., Vs Saraswati Devi) has held that when the death was due to heart
\nfailure that itself can be described as accidental personal injury that was an
\nevent which happened suddenly and in a true sense it is a mishap and is caused
\nto the deceased by an accident. In the other case decided by the our High Court
\nin the judgment reported in 2008 (2) CTC 407 (The Oriental Insurance Company
\nLtd., Chennai Vs. Nagaraj and others), the death due to heart attack of an
\nemployee in a tea estate while carrying head load upon climbing hilly terrain is
\nheld to be death arising out of and in the course of employment.  It is held
\nthat the nature of work itself involved stress and strain and it is contributed
\nto heart attack resulting in death of the employee.  Such finding rendered by
\nthe Deputy Commissioner on the basis of the evidence of the husband of the
\ndeceased in the case referred to above is confirmed by the learned single Judge
\nof our High Court as legitimate inference drawn from the proved facts.\n<\/p>\n
\t15.The Division Bench of our High Court has also in the judgment reported
\nin 2003(1) MLJ 314 (P.Kalyani  Vs. The Divisional Manager, Southern Railway
\n(Personal Branch), Divisional Office, Madras) held that the death of the railway
\nemployee as due to massive heart attack in the railway platform forming part of
\nhis work spot is nothing but an accident arising out of an employment.  Similar
\nview is also expressed in the cases decided by the learned Singe Judges of our
\nHigh Court in the judgment reported in (a) 2006 (3) MLJ 982 (Chief General
\nManager, Thermal Power Station, NLC Ltd. Vs. G.Dhanam and others) and (b)
\n2009(1) MLJ 495 (National Insurance Company Ltd., Bhavani Vs. A.Saroja and
\nother).  Thus in all the cases cited above, the dictum laid down by the Apex
\nCourt, our High Court and other High Courts is that the death due to heart
\nattack caused by stress and strain drawn due to the nature of work in the
\nparticular circumstances is death due to injury by accident in the course of and
\nout of employment.  Further the learned Single Judge of our High Court in the
\njudgment<\/p>\n
above referred to in Nagaraj case reported in 2008 (4) CTC 407 further observed
\nthat the finding of the Deputy Commissioner that the deceased died of heart
\nattack and death arose out of and in the course of employment is based on
\nappreciation of evidence and finding of facts and the same cannot be questioned
\nby invoking the power under Section 30<\/a> of the Act as no substantial question of
\nlaw arises from such finding.\n<\/p>\n
\t 16.Applying the above dictum to the facts of the present case, this court
\nhas no difficulty and hesitation in agreeing with the finding rendered by the
\nDeputy Commissioner of Labour that here is the case wherein the employee died of
\nin the course of and out of the employment and the respondent is liable to pay
\ncompensation and the finding warrants no interference from this Court and the
\nfirst substantial question of law is accordingly answered in favour of the
\nclaimants.  As heart attack leading to death of the employee is held to be
\ncaused due to strenuous nature of work and is hence construed to be employment
\ninjury occurred in the accident arising out of and in the course of employment.
\nThe provisions of Sections 3(2)<\/a> and 3(2)(a)<\/a> of the Act relating to occupational
\ndisease are not applicable to the instant case, the second substantial question
\nof law need not be gone into.\n<\/p>\n
  \t17.As there is no serious dispute with regard to the quantum of
\ncompensation fixed by the Commissioner, the award under challenge is to be
\nnecessarily confirmed, except with regard to the date from which the interest
\nbecomes payable.  As per the judgment of the Division Bench of Madras High Court
\nreported in 2003(1)LLJ 536 (Oriental Insurance Company Limited, Pondicherry V.
\nKaliya Pillai and another<\/a>),  the interest becomes payable after 30 days from the
\ndate of accident. To that extent the award stands modified.\n<\/p>\n
\t18.In the result, the award dated 14.09.2004 made in W.C.No.53 of 2004, on
\nthe file of the Deputy Commissioner of Labour, Dindigul stands modified by
\nawarding interest for the compensation amount from 30 days after the date of the
\naccident and the award is confirmed in other respects.  Accordingly, this Civil
\nMiscellaneous Appeal is disposed of. Consequently, connected Miscellaneous
\nPetition is closed. No costs.\n<\/p>\n
ssl\/gcg<\/p>\n
To
\nThe Deputy Commissioner of Labour,
\nDindigul.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Managing Director vs Smt.Subbulakshmi on 8 April, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:08\/04\/2011 CORAM THE HONOURABLE MS.JUSTICE K.B.K.VASUKI C.M.A(MD)No.846 Of 2005 and C.M.P.No.5270 of 2005 The Managing Director, Highland Parade Resort, M\/s. Highland Holiday Homes Pvt. Ltd., Near Kurinchi Andavor Kovil, Vilpatti Village and Post, Kodaikanal Taluk. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-271292","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Managing Director vs Smt.Subbulakshmi on 8 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-managing-director-vs-smt-subbulakshmi-on-8-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Managing Director vs Smt.Subbulakshmi on 8 April, 2011 - 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