TMI Blog2006 (11) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... e vehicle being insured with the United India Insurance Company, it was also impleaded as a party. 3. 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: ...My son died while working in the vehicle of R-1 and due to the strain of work.... 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-cleaner Prakash Chandrakant came to the Tavarewadi Chilling center 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out of employment. 5. An appeal was preferred there against 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 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 Anr. v. Francis De Costa and Anr. (1997)ILLJ34SC and Saurashtra Salt Mfg. Co v. Bai Valu Raja Raja and Ors. (1958)IILLJ249SC , to opine that the death of the workmen was not during the course of his employment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in. 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. 8. 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 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.... We are not oblivious that an accident may cause an internal injury as was held in Fenton (Pauper) v. J. Thor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 11. 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. 12. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 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. 15. In Mackinnon. Mackenzie Co. (P). Ltd. v. Ibrahim Mahammad. Issak (1970)ILLJ16SC , this Court held: 5. 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 18. 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 mor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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