JUDGMENT Ajit J. Gunjal, J.
1. This appeal is by the Insurance Company. The appellant is aggrieved by the judgment and award dated 31st July, 2001 passed by the Commissioner for Workmen's Compensation, Chickmagalur in No. WCA.CR. 9 of 1997. The appellant has framed the following substantial question of law for consideration:
"Whether the Commissioner for Workmen's Compensation was justified in assuming jurisdiction in respect of death of workman outside the course and outside the employment?"
2. Brief facts for the disposal of this appeal can be stated as under:
The husband of claimant 1 and father of claimants 2 to 5 was employed by the first respondent (before the Commissioner) as non-staff Watchman. It is the case of the claimants that after completing the duty on 6-6-1994 when he was returning home he died due to sudden cardiac arrest and the said incident has arisen while he was on duty and during the course of his employment under the first respondent. It is their case that the deceased was earning Rs. 1,250/- per month and he was aged about 43 years. It is their case that due to untimely death of the main earning member of the family the claimants have become destitutes and are unable to maintain themselves and earn their livelihood. Under these circumstances, the claimants sought compensation under the Act by making an application under Section 23 of the Workmen's Compensation Act and Rule 20 of the Workmen's Compensation Rules, 1923.
3. The said claim of the claimants was resisted by the employer the first respondent, inter alia, contending that the deceased Chandru having died due to cardiac arrest on 6-6-1994 while returning to his house from duty is totally false and incorrect. Tt was further submitted that all the employees of the company would normally report for duty at 8 a.m. and thereafter the work will be assigned to each of the employee to take up the work on that particular day. However, they admitted that deceased Chandru was employed as non-staff Watchman and entrusted with the work of watch and ward in the premises of the first respondent. They further denied that he was engaged as a Watchman on 5-6-1994 and after his working hours while he was returning to his house he died due to cardiac arrest is emphatically denied as false and malicious. It is their case that deceased Chandru had completed his work of watch and ward on 5-6-1994 and he appeared for muster-roll on 6-6-1994 at 8 a.m. and reported to Assistant Manager and requested for compensatory holiday. The Assistant Manager had granted the same and employee was asked to avail the compensatory holiday. It is further submitted that in view of the fact that since deceased Chandru had availed the compensatory holiday and went back to his house to take fuel from the forest on 6-6-1994 which, according to them, clearly establishes that deceased Chandru did not die during the course of the employment at the time of the incident. It was their last contention that in the event that the Commissioner were to hold that the death had occurred during the course of the employment, since the estate was insured with the second respondent it was liable to satisfy the award passed, if any.
4. The Insurance Company which was arrayed as second respondent in the proceedings before the Commissioner filed their statement of objections contending that the risk and liability of a non-staff Watchman is not covered under the Workmen's Compensation policy and as such they were not liable to satisfy the award. The main contention of the second respondent, as could be gathered from the statement of objections, appears to be that the deceased Chandru died as a result of cardiac arrest and his death is in no way connected with the employment and as such they were not liable to pay any compensation. They generally denied the allegation made in the claim petition including the wages paid to the deceased Chandru.
5. In support of their claim the claimants examined the first claimant the widow; the second claimant the daughter and the third claimant one of the sons. Their evidence would disclose that the deceased Chandru was working as a non-staff Watchman in the first respondent establishment. On 6-6-1994 after completing his duty when he was returning home he died due to cardiac arrest. The respondent examined the Senior Clerk of their establishment to reiterate what has been stated in the statement of objection. However none was examined on behalf of respondent 2 the Insurance Company. Except for getting the policy marked, they did not lead any oral evidence. The Commissioner for Workmen's Compensation framed the following issues:
The Commissioner recorded a finding that the husband of the first claimant and father of claimants 2 to 5 died during the course of employment and that there was causal connection between the work and the cause of death. He also determined the monthly salary at Rs. 1,000/- and awarded compensation of Rs. 70,216/- and directed that the said amount be deposited in a stipulated time. He also further awarded interest at the rate of 6% from the date of petition till the date of deposit. The said judgment and award is under challenge in this appeal.
6. Sri B.S. Seetharama Rao, learned Counsel appearing for the appellant strenuously submitted that there was no pleading to the effect that deceased Chandru died during the course of the employment. He stressed on the fact that there is no causal connection, it was not an employment injury as the deceased died due to cardiac arrest which is a natural cause. He further invited my attention to the pleadings that the case made out by the claimants themselves would indicate that he died due to cardiac arrest and there was no evidence forthcoming to show that the cardiac arrest was due to stress and strain. He also drew my attention to Ex. R. 1 the Attendance Register, which according to him would disclose that deceased Chandru was not working on 6-6-1994. In the absence of any pleadings that the death was due to cardiac arrest and was due to stress and strain of the job, the Commissioner could not have entertained the claim petition and granted the compensation as awarded by him.
7. Learned Counsel appearing for the claimants submitted that as on the date of the death the deceased was on duty. He also took me through the evidence of the Office Clerk who was examined on behalf of the first respondent to show that employee had to sign the attendance register after completing his job and duty hours. He further submitted that since the duty register was with the Security Officer, he had to wait till his arrival to sign the attendance register. He submitted that the death of deceased Chandru was during the course of the employment as after the work he was returning home. He further submitted that notional extension of the course of the employment will have to be extended till the workman reached his residence. He relied on a judgment of the Hon'ble Supreme Court in the case of General Manager, B.E.S.T. Undertaking, Bombay v. Mrs, Agnes and Anr., judgment of this Court in National Insurance Company Limited, Bangalore v. Smt. Balawwa and Others, to buttress his arguments.
8. I have given my anxious consideration to the rival submissions made on either side.
9. The point for determination would be: Whether the deceased Chandru died during the course of employment?
10. The expression "arising out of and in the course of the employment" fell for consideration in several judicial pronouncements. In Mrs. Agnes's case, supra, the Hon'ble Supreme Court was pleased to interpret the scope of Section 3(1) of the Workmen's Compensation Act and came to the conclusion that:
"The Court of appeal in Jenkins v. Elder Dempster Lines Limited, (1953)2 All ER 1133 once again construed the expression "arising out of and in the course of employment". There, the ship in which the deceased was employed moored against the harbour mole of Las Palmas. At the landward end of the mole was a gateway where police were stationed for the purpose, ostensibly, of keeping unauthorised persons off the mole, but all kinds of people were allowed there and entry to it was practically unrestricted. Shortly after the ship moored, the deceased and other members of the crew went ashore for a short while. When they were returning to the ship, the policemen at the gate of the mole asked them which was their ship and allowed them to enter the mole. In the darkness, the deceased tell over the side of the mole and was drowned. In a claim by the widow against the employers for compensation under the Workmen's Compensation Act, her claim was not allowed. Sir Raymond Evershed M.R., posed the question thus: Was the workman at the relevant time acting in the scope of his employment?" and answered:
"........ the explanation, it is true, which the cases have added will entitle him to say that he was if his presence at the point where he met with the accident is so related to his employment as to lead to the conclusion that he was acting within its scope".
This decision lays down a wider test, namely, that there should be a nexus between the accident and the employment. This Court has considered the scope of the section in Saurashtra Salt Manufacturing Company v. Bai Valu Raja, and accepted the doctrine of "notional extension" of the employer's premises in the context of an accident to an employee. Imam, J., delivering the judgment of the Court laid down the law thus:
"As a rule the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. It is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may he some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman keeping in view at all times this theory of notional extension" ".
(emphasis supplied) It is also seen that a Division Bench of this Court in the case of Smt. Balawwa, supra, at para 10, has held thus:
"With regard to the first point, it is no doubt true that a claim for compensation for the death of an employee could be made under Section 3 read with Section 4 of the Workmen's Compensation Act only if the death of that employee has occurred due to an injury sustained by accident out of and in the course of his employment. By a series of judicial pronouncements it is now well-settled that the word 'accident' should be taken to mean a mishap or untoward event, not expected or designed; that if a person suffers heart attack and dies, it necessarily means that there has been an injury to the heart and that, that event being a mishap not expected or designed, is an accident and that, if a workman suffers heart attack out of and in the course of his employment, then the employer is liable to pay compensation under Section 3 read with Section 4 of the Workmen's Compensation Act".
Keeping these principles in mind the case of the appellant will have to be examined.
11. It is to be noted that the case of the claimants is that deceased was working as Watchman and was entrusted to do the said work on 5-6-1994 by the first respondent. It is seen that the duty of the Watchman commences at 6.30 p.m. on the previous day and ends on the next day. In these circumstances, the deceased Chandru left his residence on 5-6-1994 at 6 p.m. and the moment he left his house he was engaged in his duty throughout the night and after finishing his employment while he was returning to roll-call in the morning he complained of chest pain and immediately he was taken to the hospital where he was declared dead. It has also come on record that R.W. I admits in his cross-examination that the night duty work commences from 6.30 p.m. on the previous day and ends by 6.30 a.m. by the next day. He further admitted that the night duty comes to an end only after the workman appears in a muster-roll on the next day. In view of this working hours, when the Watchman commences at 6.30 p.m. on the previous day and ends at 6.30 a.m. on the next day and continues to work till he returns to the muster-roll it has to be inferred till the time he signs the muster-roll and leaves the premises he continues to be in the employment of his employer. It has also come in evidence that the workman was subjected to lot of stress and strain in view of the duty during night. In view of this it has got to be reasoned that there is causal connection between the incident and the employment. It is necessary to note that the concept of 'during the course of employment' can be extended from the time the workman leaves home and returns after completion of his duty. In this connection one will have to view whether an occurrence is an accident or not has to be determined from the point of view of the workman who suffers the accident. If the occurrence is unexpected and without any design on his part it may be said to be an accident, even if it had been caused by someone intentionally or wilfully. It is not the case of the appellant that the deceased was having any disease. No medical evidence is produced to substantiate that the cardiac arrest was not the result of stress and strain, the appellant, in the circumstances, ought to have adduced evidence in support of their contention by examining the doctor; that has not been done. The contention of the learned Counsel appearing for the appellant that in the absence of any evidence to the contrary, it has got to be held that the death was due to cardiac arrest simpliciter cannot be accepted. The legal position in this respect is very clear. Any heart injury when brought about by a strain due to the work in the employment "and not by natural wear and tear is compensable though pre-existing condition may have been the contributory element and this is irrespective of the percentage of the part played by either of them viz., the work and the condition". It is to be noticed that the Insurance Company, in the circumstances, ought to have led evidence; the Insurance Company has been tactful but not fair. It owed a duty to produce material to show the extent the deceased had not undergone any stress and strain. A mere assumption in this regard that there is no stress and strain cannot be accepted. It is to be noted that the expression found in Section 3(1) of the Act has to be understood as meaning a mishap or untoward event, not expected or designed. In other words, the basic and indispensable ingredient of the accident is the unexpectation. In the instant case when the deceased was subjected to overexertion there was a sudden deterioration of his health which proved fatal. But for this overexertion, death would not have occurred. The oral evidence is clinching in this regard and would indicates that there is causal connection between the employment and the death of deceased Chandru. The object behind the legislation is protection to the weaker section with a view to do social justice, the provisions of the Act have to be interpreted liberally so that other things being equal, the leaning of the Court has to be towards the person for whose benefit the legislation is made. It is to be seen that once the theory of notional extension is properly applied to the factual situation pertaining to the case on hand it has got to be held that the accident had occurred within the area falling within the notional extension theory; the deceased was on his way home after completion of his work.
12. Learned Counsel appearing for the appellant relied on a judgment of this Court in Senior Divisional Controller, North West Karnataka Road Transport Corporation v. Smt. Shoba and Ors., ILR 2001 Kar. 4496 wherein this Court has ruled that any death due to cardiac arrest and the deceased did not die during the course of the employment. However, it is to be noted that this Court has followed the opinion given by minority Bench. Consequently, this judgment is of no help to the appellant. The appellant also relied on a judgment of the Hon'ble Supreme Court in Employees' State Insurance Corporation v. Francis De Costa., 1996 ACJ 128 (SC) So far as this decision is concerned, it arose under the provisions of Employees' State Insurance Act, 1948 and the Hon'ble Supreme Court has interpreted Section 2(8) regarding employment injury and in that respect the Supreme Court was pleased to hold that notional extension arising out of and in the course of employment cannot go beyond the place of employment where he was hit by a lorry and sustained certain injuries. But, the facts are different in the present case. There is sufficient evidence adduced by the claimants to show that as on the date of the incident the deceased Chandru was on duty. There is also sufficient evidence to show that the death had occurred due to stress and strain resulting in cardiac arrest. In the circumstances, in my considered view, the Commissioner was justified in holding that the death had occurred during the course of the employment,
13. Insofar as the compensation awarded by the Commissioner is concerned, he has taken into consideration the salary which was drawn by the deceased and has applied the proper factor and has awarded Rs. 70,216/- with interest at 6% per annum.
14. In my view the substantial question of law which is sought to be agitated by the appellant in this appeal will have to be answered against them. In view of what is stated above, the appeal is liable to be dismissed and is accordingly dismissed. No costs.