SHAH Vs. RAJANKUTTY

JUDGEMENT

(1.) Appellant employer challenges the order of the Commissioner for Workmen's Compensation on four grounds. A loading and unloading worker during the course of employment, while carrying a head load, collapsed, fell down and died due to heart attack. According to the appellant, in his written statement, the worker fell down while he was carrying the load due to his carelessness. Tribunal ordered compensation holding that the accident occurred during the course of employment and death is arising out of employment. Mere negligence or even gross negligence does not disentitle a workman for compensation. As held by the Madras High Court in Sundaresa Mudaliar v. Muthummal (1956 (2) LLJ 52), doctrine of contributory negligence has no place in workmen's compensation claim. Proviso (b) to Section 3(1) of the Workmen's Compensation Act, 1923 (in short 'the Act') clearly provides as follows:

(2.) Next ground is that the workman died due to heart attack and, therefore, it is a natural death and it is not due to an accident arising out of his employment. Accident is not defined in the Workmen's Compensation Act, 1923. Therefore, the word "accident' should be understood in the popular and ordinary sense as denoting 'an unlocked for mishap or an untoward event which is not expected or designed'. While explaining the word "accident" contained in the Workmen's Compensation Act in England, Lord Atkinson had observed as follows in Clover, Clayton & Co. Ltd. v. Hughes (1910 AC 242):

(3.) It is true that even if the "death" is an accident on claimant's point of view, to get compensation, it must be in the course of employment and arising out of employment. Here, there is no dispute that the death was during the course of employment. Question is whether it is arising out of employment. The accident which resulted in the injury or death, must be connected with the employment and must arise out of it; there must be casual connection or association between the employment and the accidental injury. Only a casual connection or nexus is necessary. In Clover Clayton & Co. Ltd. v. Hughes (1910 AC 242), the workman died due to rupture of an aneurism while doing his ordinary work in the ordinary way without any unusual exertion or strain. The aneurism was in such an advanced condition that it might have burst while the man was asleep, and a very slight exertion, or strain, would have been sufficient to bring about a rupture. Even so, the House of Lords held that this accident arose out of his employment as the strain of the work in which he was engaged, howsoever ordinary it may have been, was in fact one of the contributing causes. In Executive Engineer v. Janaki (1978 KLT 897) it was held that even if the workman has early symptoms of the disease, if day's work accelerated the disease, accident is arising out of employment. Normally, it is for the claimant to prove that the death has got a connection, at least connection with the employment. Acceleration of disease during work establishes a casual connection. If death due to heart attack occur suddenly during the course of employment, it is for the employer to prove that the employment has no connection with the heart attack. Theory of res ipsa loquitur is applicable in this case. Here, there is no evidence that the workman was having heart disease earlier. Apex Court in Mackinnon Mackenzie & Co. v. Rita Fernandez (1969 (2) LLJ 812) observed that even if pre-existing disease is aggravated due to employment resulting in death, it is an accident arising out of employment. It is an admitted case that while carrying cashew bags, he fell down and, consequently, he died, even though ultimately his heart failed. Falling down while carrying cashew bags is an accident and that is the immediate cause which has accelerated the death of the workman. Therefore, he died due to personal injuries caused in an accident arising out of and in the course of employment.