http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (civil)  4778 of 2006

PETITIONER: Shakuntala Chandrakant Shreshti

RESPONDENT: Prabhakar Maruti Garvali & Anr

DATE OF JUDGMENT: 10/11/2006

BENCH: S.B. SINHA & MARKANDEY KATJU

JUDGMENT: J U D G M E N T [Arising out of SLP(C) No. 19222 of 2005]

S.B. Sinha, J.

       Leave granted.

       Prakash Chandrakant Shreshti (hereinafter called ‘the deceased’) was  working as a Cleaner in Vehicle No. MH 09A 9727.  The said vehicle  belonged to Respondent No. 1.  He was travelling in the said vehicle in the  night of 27.9.2002.  He suddenly developed chest pain.  He was admitted to  Government hospital, Mangaon where the doctor declared him dead.   Indisputably, the incident had occurred while deceased was performing his  duties.         Appellant herein, the mother of deceased filed a Claim Petition under  the Workmen’s Compensation Act, 1923 (for short, ’the Act’) before the  Commissioner for Workmen’s Compensation which was registered as  WCA/SR/19/2003.  The vehicle being insured with the United India  Insurance Company, it  was also impleaded as a party.   

The fact that at the time of his death, the deceased was discharging his  duties is not disputed.  The autopsy was conducted wherein the cause of  death was opined as Cardiac arrest due to Rupture Aortic Aneurysm.  No  injury on his body was found.  The only evidence which was brought on  record was by way of  deposition of Appellant.  It was alleged :

"\005My son died while working in the vehicle of R-1 and  due to the strain of work\005"

       A copy of the Claim Petition has not been placed before us.  We,  therefore, are not sure as to whether there was any requisite pleading.   The  first Respondent, however,  in his objection stated :       

"...It is further true that the said vehicle is used for  carrying the milk and on 27.9.2002 at about 9.15 hours,  the driver of the said vehicle Parasharam Chandrakant  and the deceased\026cleaner Prakash Chandrakant  came to  the Tavarewadi Chilling Centre for bringing the milk  from Kolhapur, at that time, the deceased-Cleaner while  getting down from the said vehicle got pain in the chest  and sat on the ground and immediately the driver of the  said vehicle taken him to dispensary to Government  Hospital, Mangaon.  The Doctor of the said Hospital  stated that deceased-Cleaner died due to Cardiac arrest.   It is true that the said deceased died in the course of his  employment under this Respondent No. 1."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

       The Insurer raised a plea of collusion between the employer and   Appellant in its written statement.   It, however,  need not be adverted to.   

The Commissioner for Workmen’s Compensation raised several  issues.  The issue with which we are concerned is Issue No. 2, which is as  under :

"2.     Whether the accident occurred during the course of  employment and out of Employment?"

       The Workmen’s Compensation Commissioner did not analyze the  evidence on record.  It did not arrive at a finding that the deceased met with  an accident.  It proceeded on the basis that deceased being a workman, it  was obligatory on the part of  the first Respondent to maintain registers  under the provisions of the Minimum Wages Act.   

The Commissioner, however, dealt with the legal issue as regards  meaning of  ‘accidents and injury’, observing :  

"15.    The more usual case of an accident is an event  happening externally to a man.  The less obvious cases of  accident are strain causing rupture, bursting of aneurism,  failure of muscular action of the heart, exposure to  draught causing chill, exertion in a stokehold causing  apoplexy, shock causing neurasthenia etc.  Lord Atkin  called them as "Internal Accident".  In such cases, it is  hardly possible to distinguish in time between the  ‘accident’ and ‘injury’.  The rupture is an accident, at the  same time injury leading to death or incapacity at once or  after a lapse of time.  Thus in cases of internal accidents,  "Accidents" and "Injury" coincide.

16.     What the Act, therefore, really intends to convey is  what might be expressed as an ‘accidental injury’.  But  the common factor in all cases of accident, whether  ‘internal’ or ‘external’ is some concrete happening at a  definite point of time and incapacity resulting from  happening.

17.     An accident happening to a person in or about any  premises at which, he is for the time being employed for  the purpose of his employer’s trade or business shall be  deemed to arise out of and in the course of employment."

Legal propositions are not in dispute.  What is in dispute is whether  the deceased died of an accidental injury in the course of  and out of  employment.              An appeal was preferred thereagainst before the High Court by  Respondent No. 3 under Section 30 of the  Act.  The said Appeal has been  allowed by reason of the impugned judgment.  The High Court opined that  the findings of the Workmen’s Compensation were perverse and inconsistent  with the material on record as also bereft of any reason.   

       It was held:-

"There is no material evidence to show that the  deceased workman was suffering from a heart ailment.   There is also no evidence to demonstrate that the  workman was put through a sudden stressful condition in  the course of his duties, which brought on a cardiac  arrest.  In the face of these circumstances, the reasoning

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

of the Commissioner that the workman died as a result of  an accident during and in the course of his employment,  is difficult to be sustained."

       Extensive reference was made by the High Court in its judgment to  the decisions of this Court in Regional Director, ESI Corporation and  Another v. Francis De Costa and Another [(1996) 6 SCC 1] and Saurashtra  Salt Mfg. Co v. Bai Valu Raja Raja and Others  [AIR 1958  SC  881], to  opine that the death of the workmen was not during the course of his  employment.      

       Learned counsel appearing on behalf of Appellant would submit that  the High Court committed a manifest error in arriving at the said finding  insofar as it failed to take into consideration that by reason of the strain of  work, the cause of the death was accelerated.  As the Commissioner of the  Workmen’s Compensation Commission arrived at a finding of fact, it was  urged, the same could not have been interfered with by the High Court in  exercise of its jurisdiction under Section 30 of the Act  as no substantial  question of law arose for its consideration.

       Mr. Nandwani, however, supported the judgment of the High Court.   

The said Act was enacted to provide for  payment by certain classes of  employers to workmen for compensation against injury by accident.  The  term ‘accidental injury’ has not been defined under the Act.  The liability of  the employer for payment of compensation, however, would arise if a  personal injury is caused to a workman by accident arising out of and in the  course of his employment.  What is necessary for attracting the charging  provision contained in Section 3 of the Act is that (i) an injury must be  caused to a workman; (ii) such injury must have been caused by an accident;  and (iii) it arose out of or in the course of his employment.

       Before we analyze the provisions of the Act, we may notice that in the  Complaint Petition, there was no allegation that (i) the deceased met with his  death by reason of any strain of work; and (ii) Appellant had no personal  knowledge as regards quantum of or nature of  work required to be  performed by the deceased; and (iii)  as to how  service strain during his  services was caused.   

The deceased had admittedly suffered a massive heart attack.  Nothing  has been brought on record to show that the heart attack was caused while  doing any job.  Even according to employer, he at the relevant time was  merely getting down from the vehicle.  

       The driver of the vehicle who was brother of the deceased was the  best witness to state as to under what circumstances the deceased met with  his death or whether the death was occurred due to some strain.  He did not  examine himself.  The doctor who performed post mortem examination was  also not examined.   

Sufferance of heart disease amongst  young persons is not unknown .   A disease of heart may remain undetected.  A person may suffer mild heart  attack but he may not feel any pain.  There must, thus,  be some evidence  that the employment contributed to the death of the deceased. It is required  to be established that the death occurred during the course of employment.   

This Court in E.S.I. Corporation (supra) referred to with approval the  decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig,  [1940 AC 190], wherein it was held :

"Nothing could be simpler than the words ‘arising  out of and in the course of employment’.  It is clear that  there two conditions to be fulfilled.  What arises ‘in the  course of the employment is to be distinguished from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

what arises ‘out of the employment’.  The former words  relate to time conditioned by reference to the man’s  service, the latter to casualty.  Not every accident which  occurs to a man during the time when he is on his  employment - that is, directly or indirectly engaged on  what he is employed to do - gives a claim to  compensation, unless it also arises out of the  employment.  Hence the section imports a distinction  which it does not define.  The language is simple and  unqualified\005"

       We are not oblivious that an accident may cause an internal injury as  was held  in Fenton (Pauper)  v. J. Thorley & Co. Ltd., [1903  AC 443], by  the Court of Appeal :  

"\005I come, therefore, to the conclusion that the  expression "accident" is used in the popular and ordinary  sense of the word as denoting an unlooked-for mishap or  an untoward event which is not expected or designed."

       Lord Lindley opined  :

       "The word "accident" is not a technical legal term  with a clearly defined meaning.  Speaking generally, but  with reference to legal liabilities, an accident means any  unintended and unexpected occurrence which produces  hurt or loss.  But it is often used to denote any unintended  and unexpected loss or hurt apart from its cause; and if  the cause is not known the loss or hurt itself would  certainly be called an accident.  The word "accident" is  also often used to denote both the  cause and the effect,  no attempt being made to discriminate between them.   The great majority of what are called accidents are  occasioned by carelessness; but for legal purposes it is  often important to distinguish careless from other  unintended and unexpected events."  

       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.   

The principles  are :  

(1)     There must be a causal 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.  

       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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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.  

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   

The deceased was traveling in a vehicle.  The same by itself can not give  rise to an inference that the job was strenuous.

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  this behalf.  

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.   

       In Saurashtra Salt Manufacturing Co. (supra), this Court held :

"\005It is well settled that when a workman is on a public  road or a public place or on a public transport he is there  as any other member of the public and is not there in the  course of his employment unless the very nature of his  employment makes it necessary for him to be there.  A  workman is not in the course of his employment from the  moment he leaves his home and is on his way to his  work.  He certainly is in the course of his employment if  he reaches the place of work or a point or an area which  comes within the theory of national extension, outside of  which the employer is not liable to pay compensation for  any accident happening to him.  In the present case, even  if it be assumed that the theory of notional extension  extends upto point D, the theory cannot be extended  beyond it.  The moment a workman left point B in a boat  or left point A but had not yet reached point B, he could  not be said to be in the course of his employment and any  accident happening to him on the journey between these  two points could not be said to have arisen out of and in  the course of his employment.  Both the Commissioner  for Workmen’s Compensation and the High Court were  in error in supposing that the deceased workmen in this  case were still in the course of their employment when  they were crossing the creek between points A and B.   The accident which took place when the boat was almost  at point A resulting in the death of so many workmen  was unfortunate, but for that accident the appellant  cannot be made liable."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

In General Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes  [AIR 1964 SC 193], referring to the decision of Court of Appeal in Jenkins   v. Elder Dempster Lines Ltd. [(1953) 2 All ER 1133], this Court opined  therein that a wider test, namely, that there should be a nexus between  accident and employment was laid down.  It also followed the decision of  this Court in Saurashtra Salt Manufacturing Co. (supra).

       This Court in ESI Corporation (supra) was dealing with a case where  the Respondent met with an accident while he was on his way to his  employment.  The accident occurred at a place which was about 1 K.M.  away from the factory.

       In Mackinnon.  Mackenzie & Co. (P). Ltd.  v.  Ibrahim Mahammad.   Issak  [AIR 1970 SC 1906], this Court held : "5\005To 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 the 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 that 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 a causal  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  compensation must succeed, unless of course the  workman has exposed himself to an added peril by his  own imprudent act\005"  

       The question recently has been considered by a Bench of this Court in  Jyothi Ademma v. Plant Engineer, Nellore, [2006 (7) SCALE 28] wherein it  was opined :

"The expression "accident" means an untoward  mishap which is not expected or designed.  "Injury"  means physiological injury.  In Fenton v. Thorley & Co.  Ltd. (1903) AC 448, it was observed that the expression  "accident" is used in the popular and ordinary sense of  the word as denoting an unlooked for mishap or an  untoward event which is not expected or designed.  The  above view of Lord Macnaghten was qualified by the  speech of Lord Haldane A.C. in Trim Joint District,  School Board of Management v. Kelly (1914) A.C. 676  as follows:

"I think that the context shows that in using the  word "designed" Lord Macnaghten was referring  to designed by the sufferer". "              

       Learned counsel appearing on behalf of Appellant seeks to distinguish  this decision stating that therein the job of the workman was merely to  ’switch on and switch off’ and thus there has been no scope of stress and  strain in his duties and that the workman had been suffering from a heart

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

disease.  But in this case also job of a cleaner was not strenuous and in any  event far less that of driver of the vehicle.

       Only because the cause of death was due to heart attack, the same by  itself may not be a ground to arrive at a conclusion that an accident had  occurred resulting in injury.

       The nature of duty of the deceased was that of a helper.  Per se that  the duties would not be such which could cause stress or strain.  If an  additional duty were required to be performed by him, the same was  required to be clearly stated.

       Unless evidence is brought on record to elaborate that the death by  way of cardiac arrest  has occurred because of stress or strain, the  Commissioner would not have jurisdiction to grant damages.  In other  words, the claimant was bound to prove jurisdictional fact before the  Commissioner. Unless such jurisdictional facts are found, the Commissioner  will have no jurisdiction to pass an order.  It is now well-settled that for  arriving at  a finding of a jurisdictional fact,  reference to any precedent  would not be helpful as  a little deviation from the fact of a decided case or  an additional fact may make a lot of difference by arriving at a correct  conclusion.  For the said purpose, the statutory authority is required to pose  unto himself the right question.

       Section 30 of the said Act postulates an appeal directly to High Court  if a substantial question of law is involved in the appeal.

       A jurisdictional question will involve a substantial question of law.  A  finding of fact arrived at without there being any evidence would also give  rise to a substantial question of law.  From the order passed by the  Commissioner, it appears, he has not arrived at a finding that the job  involved any stress or strain.  It was merely stated that he was working as a  Khalasi in a truck which was going to Tavarewadi Village from Kolhapur to  get the milk.  The autopsy was conducted at Chandgad District Hospital.   The driver Prashant Chandrakant Shreshti admittedly brought him to  hospital.  He was his brother.  The post mortem examination commenced  from 6.30 a.m. on 28.9.2002 and ended at 7.30 a.m. on the same day.  From  the post mortem report, it appears that in the accompanying report, it is  stated that the death was due to sudden heart attack.  When exactly the death  took place is not known.  It will bear repetition to state that under what  circumstances the death took place is also not known.  There was also no  pleading in this behalf.   The Commissioner came to the conclusion that the  death took place during the course of the employment but then no evidence  has been brought on record to show that it had a causal connection between  accident and serious injury so as to fulfill the requirements of the terms  "out  of employment".  Indisputably, there has to be an proximate nexus between  cause of death and employment.  A stray statement made by  Appellant that  the deceased had died while working in the vehicle and stress or strain of the  work did not appear to have any foundation.  Admittedly she was not present  at the spot.  She had also no  personal knowledge.  All these facts she had  admitted in cross-examination.

       This vital aspect of the matter was required to be considered by the  High Court so as to arrive at a finding as to how the said accident has arose  or not.

       A question of law would arise when the same is not dependent upon  examination of evidence, which may not require any fresh investigation of  fact.  A question of law would, however, arise when the finding is perverse  in the sense that no legal evidence was brought on record or jurisdictional  facts were not brought on record.

       We are not oblivious of the proposition of law as was stated by  Frankfurter, J. in J.J.O’ Leary,  Dy. Commnr., Fourteenth Compensation  Distt. v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

the court will not disturb a finding of an Administrative Tribunal when two  views are possible and only because the appellate court can take a contrary  view.  But in the instant case, the Commissioner did not go into the  jurisdictional facts not arrived at any finding based on any legal evidence in  regard to the causal connection between the employment and the death.     We, therefore, are of the opinion that ultimate conclusion of the High  Court may be correct.  We although would not, thus, interfere with the  impugned judgment, but would direct that in event any amount has been  paid to Appellant the same need not be refunded.          The Appeal is dismissed subject to the observations made  hereinbefore