Holding

A death that is not shown to be caused by an accident linked to the employment, i.e., lacking evidence of stress or strain, does not fall within the ambit of ‘arising out of and in the course of employment’ under the Workmen's Compensation Act.

Summary

The deceased, a cleaner employed in a milk‑transport truck, suffered a sudden heart attack and died while alighting from the vehicle. His mother filed a claim under the Workmen's Compensation Act, 1923, alleging the death occurred in the course of employment. The Commissioner allowed the claim without any evidence that the death was caused by work‑related stress or strain. The High Court reversed, holding there was no accident or causal link between the employment and the death. On appeal, the Supreme Court affirmed the High Court, stating that compensation under Sections 3 and 30 of the Act requires proof of an accident and a proximate nexus between the employment and the injury, which was absent. Consequently, the appeal was dismissed.

Issues considered

Whether the death of the workman arose out of and in the course of his employment under Section 3 of the Workmen's Compensation Act, 1923.
Whether the Commissioner erred in allowing the claim without evidence of a causal connection between the employment and the death, thereby raising a substantial question of law under Section 30.

Legislation cited

Minimum Wages Act
Workmen's Compensation Act, 1923s. 3, s. 30

Subjects

Workmen's Compensationaccidentcausal connectiondeath in employmentSection 3Section 30jurisdictional factcompensation claimheart attack

Judgment

SHAKUNTALA CHANDRAKANT SHRESHTI A
v.
PRABHAKAR MARUTI GARV ALI AND ANR.

NOVEMBER I 0, 2006

[S.B.SINHA AND MARKANDEY KA TJU, JJ.] B

Labour Law:

Workmen's Compensation Act, 1923: Sections 3 & 30.
c
Compensation-Arising out of accident in the course of employment-
Causal connection between injury and accident-Death ofworkman in a vehicle
due to sudden heart attack-Entitlement to compensation-The deceased was
working as a cleaner in a truck-The deceased, while getting down from the
vehicle, suffered a massive heart attack and died on the spot-But nothing had D
bee~ brought on record to show that the heart attack was caused while doing
any job-Mother of the deceased filed a claim petition alleging that the death
had occurred while the deceased was performing his duties in the course of
his employment-Petition was allowed by the Commissioner for Workmen's
Compensation-But the High Court rejected the claim petition and held that
·~
the deceased had not died as a result of an accident during and in the course E
ofhis employment-Correctness of-Held: 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-Only because a death has taken
place in course of employment will not amount to an accident-Death must
arise out of accident-Only because a person dies of heart attack, the same F
does not give rise to an automatic presumption that the same was by wcry of
accident-Jn the instant case, there was no causal connection between the
employment and the death-Hence, High Court rightly rejected the claim
petition.

Words & Phrases:
G
"Arising out of and in the course of employment"-Meaning of-Jn the
context of S. 3 of the Workmen's Compensation Aci, 1923.

939 H
940 SUPREME COTJRT REPORTS [2006] SUPP. 8 S.C.R.

A The deceased was working as a cleaner in a truck. The vehicle was
being used for bringing milk. The deceased-cleaner, while getting down
from the said vehicle, got pain and sat on the ground and immediately
the driver of the said vehicle took him to the hospital where he was
declared dead. The deceased admittedly suffered a massive heart attack.
B But nothing had been brought on record to show that the heart attack
was caused while doing any job. The driver of the vehicle and the doctor
who performed the postmortem examination were not examined. The
postmortem report stated that the death was due to sudden heart attack.

The mother of the deceased filed a claim petition under the
C Workmen's Compensation Act, 1923 alleging that the death had occurred
while the deceased was performing his duties in the course of his
employment. The Commissioner for Workmen's Compensation allowed
the petition without recording a finning that the job involved stress or
strain. In appeal, the High Court rejected the claim petition and held that
the deceased had not died as a result of an accident during and in the
D course of his employment. Hence the appeal.

Dismissing the appeal, the Court

HELD: l. In the claim petition, there was no allegation that (i) the
E deceased met with his death by reason of any strain of works; and (ii) the
appellant had no personal knowledge as regards the 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. (947-C, DJ

2. The deceased had admittedly suffered a massive heart attack.
F Nothing has been brought on record to show that the heart attack was
caused while doing any job. Even according to the employer, he at the
relevant time was merely getting down from the vehicle. 1947-E)

3. Sufferance of heart disease amongst young persons is not
unknown. A disease of heart may remain undetected. A person may suffer
G 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. [947-F, G]

H
SHAKUNTALA CHANDRAKANT SHRESHTI "·PRABHAKAR MARUTI GARVALI 94}

Saurashtra Salt Mfg. Co. v. Bai Valu Raja Raja, AIR (1958) SC 881, A
relied on.

Regional Director, ES/ Corporation v. Francis De Costa, [199616 SCC
I, referred to.

Dover Navigation Co. Ltd v. /sabella Craig, (1940) AC 190 and Fenton B
(Pauper) v. J. Thorley & Co. ltd, (1903) AC 443, referred to.

4. The principles are:

(a) There must be a causal connection between the injury and the C
accident and the work done in the course of employment.

(b) The onus is upon the applicant to show that it was the work and
the resulting strain which contributed to or aggravated the injury.
(c) If the evidence brought on tlie record establishes a greater D
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 facts of each case.
(949-A-CI
5. Injury suffered should be a physiological injur)'.. Accident,
ordinarily, would have to be understood as unforeseen or uncomprehended E
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. (949-C, DJ
6. There is a crucial link between the causal connections of
employment with death. Such a link with evidence cannot be a matter of F
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. (949-D, EJ

7. An accident may lead to death but that an accident had taken place G
must be proved. Only because a death has taken place in course of
employment will not amount to an accident. In other words, death must
arise out of accident. There is no presumption that an accident had
occurred. (949-E)

H
942 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A 8.1. In a case of this nature to prove that an accident has taken place,
factors which would have to be established, inter alia, are:

(a) stress and ·strain arising during the course of employment.

(b) nature of employment.
B
(c) injury aggravated due to stress and strain. (949-F, G}

8.2. The deceased was travelling in a vehicle. The same by itself
cannot give rise to an inference that the job was strenuous. (949-G)
c 8.3. Only because a person dies of heart attack, the same does not
giv·e rise to an 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 rel~vance providing
guidance to court in this behalf. (950-A)
D
9. Circumstances must exist to establish that death was caused by
reason of failure of heart 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. (950-B)

E Saurashtra Salt Mfg. Co. v. Bai Valu Raja Raja AIR (1958) SC &81,
General Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes, AIR (1964)
SC 193, Mackinnon, Mackenzie & Co. (P) Ltd. v. Ibrahim Mahammad Issak
AIR (1970) SC (1906) and Jyothi Ademma v. Plant Engineer, Ne/lore (2006)
7 SCALE 28, relied on.
F
Jenkins v. Elder Dempster lines Ltd. (1953) 2 All ER 1133, referred
to.

Trim Joint District School Board of Management v. Kelly (1914) AC
676, cited.
G 10. 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 for Workmen's Compensation would not have jurisdiction
to grant damages. In other words, the claimant was bound to prove
jurisdictional fact before the Commissioner. Unless such jurisdictional
H
SHAKUNTALA CHANDRAKANT SHRESHTI v. PRABHAKAR MARUTI GARVALI 943

facts are found, the Commissioner will have no jurisdiction to pass an A
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,
statutory authority is required to pose unto him the right question. B
(952-E, F, G)
11.1. Section 30 of the Workmen's Compensation Act, 1923
postulates an appeal directly to the High Court if a substantial question
of law is involved in the ap,eal. [952-G)
11.2. A jurisdictional question will involve a substantial question of C
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. (952-H, 953-A)
11.3. From the postmortem report, it is stated that the death was D
due to a sudden heart attack. When exactly the death took place is not
known. 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 E
requirements of the terms "out of employment". Indisputably, there ha:.
to be a proximate nexus between the cause of death and employment.
(953-B, C, DJ
12.1. A question of law would arise when the same is not dependent
upon examination of evidence, which may not require any fresh F
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. (953-E, F)
12.2. In the instant case, the Commissioner did not go into the
jurisdictional facts nor arrived at any finding based on any legal evidence G
in regard to the causal connection between the employment and the death.
[953-G, 954-A)
J.J.O'LeOIJI, Dy. Commnr,, Fourteenth Compensation Distt, V, Brown-
Pacific Inc, 95 L. Ed. 483: 340 US 504 (1950), referred to.
H
944 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4778 of2006.

From the Final judgment and Order dated 21. 7.2005 of the High Court
of Kamataka at Bangalore in M.F.A. No. 5091/2003 (WC).

Girish Ananthamurthy and P.P. Singh for the Appellant.
B
Kiran Suri, K.L. Nandwani, S.K. Mishra and Debasis Misra for the
Respondents.

The Judgment of the Court was delivered by

C 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. I. He was travelling in the said vehicle in the night of
27.9.2002. He suddenly developed chest pain. He was admitted to Government
D 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 uoder
the Workmen's Compensation Act, 1923 (for short, 'the Act') before the
Commissioner for Workmen's Compensation which was registered as WCA/
E 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 c:ause of death
F 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 o.f Appellant. It was alleged :

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

G 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
H
SHAKUNTALA CHANDRAKANT SHRESHTI v. PRABHAKAR MARUTI GARVALI [S.B. SINHA. J.] 945

Parasharam Chandrakant and the deceased-cleaner Prakash A
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. B
It is true that the said deceased died in the course of his employment
under this Respondent No. I."

The Insurer raised a plea of collusion between the employer and
Appellant in its written statement. It, however, need not be adverted to. C
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 Emplvyment?"
D
The Workmen's Compensation Commissioner did not analyze the
evidence on record. It did not a1rive 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. E
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 F
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 G
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 a\\
H
946 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A 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
B employer's trade or business shall be deemed to arise out of and in
the course of employ~ent."

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.

c
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
D 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. Thei e is also no evidence to
demonstrate that the workman was put through a sudden stressful
E 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 cifficult to be sustained."

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

G 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
H
SHAKUNTALA CHANDRAKANT SHRESHTI v. PRABHAKAR MARUTI GARV ALI [S.B. SINHA. J.] 94 7

exercise of its jurisdiction under Section 30 of the Act as no substantial A
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 B
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 C
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 D
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 suffer~d a massive heart attack. Nothing E
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 F
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 G
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.1 Corporation (supra) referred to with approval the H
decision of Lord Wright in Dover Navigation Co. Ltd. v. Isabella Craig,
948 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A (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
B 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
c 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. Thorley & Co. Ltd, (1903) AC 443, by the
Court of Appeal :
D
" .. .I 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."

E 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
F 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
G 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 ES! Corporation (supra), in regard to
H essential ingredients for such finding and the tests attracting the provisions
of Section 3 of the Act.
SHAKUNTALA CHANDRAKANT SHRESHTI v. PRABHAKAR MARUTI GARV ALI (S.B. SINHA,!.] 949

The principles are : A
(I) 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 B
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 C
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 D
the deceased was placed.

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 c')mmit a jurisdictional error while exercising E
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. F
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 G
3. injury aggravated due to stress and strain

The deceased was travelling in a vehicle. The same by itself cannot
give rise to an inference that the job was strenuous.
H
950 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A 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.

B 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
C 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 :

" ... It 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
D 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
E 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
F 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
G 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."

H
SHAKUNTALA CHANDRAKANT SHRESHTI "· PRABHAKAR MARUTI GARV ALI [S.B. SINHA. l.) 95}

In General Manager, B.E.S. T. Undertaking, Bombay v. Mrs. Agnes A
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).
B
This Court in ES! 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 Mohammad lssak C
AIR (1970) SC 1906, 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 D
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
employm.ent, 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 E
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 inci~ents. If by reason of
any of those factors the workman is brought within the zone of special F
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.. ... "
G
The question recently has been considered by a Bench of this Court in
Jyothi Ademma v. Plant Engineer, Ne/lore, (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. H
952 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A Thorley & Co. Ltd. (l 903) 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
B 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
C '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
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
D 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
E duty were required to be performed by him, the same was required to be
clearly stated.

Unless evidence is brought on record to elal:>0rate 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
F 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
G 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
H
SHAKUNTALA CHANDRAKANT SHRESHTI v. PRABHAKAR MARUTJ GARV ALI [S.B. SINHA. J.) 953

finding of fact arrived at without there being any evidence would also give A
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 B
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 C
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 fulfil the requirements of the terms "out of employment". Indisputably,
there has to be an proximate nexus between cause of death and employment. D
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.
E
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 p
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' Leary1, Dy. Commnr., Fourteenth Compensation Distt. G
v. Brown-Pacific-Maxon Inc. [95 L. Ed 483 : 340 US 504 (1950)] that 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 H
954 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A 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.
B
The Appeal is dismissed subject to the observations made hereinbefore

v.s.s. Appeal dismissed.