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Mackinnon Mackenzie and Co. (Private) Ltd., Bombay Vs. Habiba Eusoof Karbelkar - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 361 of 1965
Judge
Reported in[1967(15)FLR327]; (1967)IILLJ84Bom
ActsWorkmen's Compensation Act - Sections 3, 3(1), 3(2), 3(2A), 3(3) and 3(4)
AppellantMackinnon Mackenzie and Co. (Private) Ltd., Bombay
RespondentHabiba Eusoof Karbelkar
Excerpt:
.....because of the strain caused upon the workman by his being on his legs or moving about during the time that he was on duty. 43 of the english act embodies something like an inherent right vested in a workman to recover compensation in respect of a disease to which the section in terms does not apply......court and also other high courts in india in which compensation has been awarded on account of death by disease due to an injury arising out of and in the course of the employment, no high court has taken notice of the peculiar wording of sub-section (4) of s. 3 of our act, nor has any one of them drawn a distinction between the provisions of sub-section (4) of s. 3 of our act and sub-section (4) of s. 43 of the english act. 9. the leading case decided by this court on this point is smt. laxmibai atmaram v. bombay port trust : (1954)illj614bom . the facts of that case were simple : one atmaram was employed as a watchman (opponent) by the port trust at its pumping station at carnac bunder, bombay, and his hours of duty were 7 p.m. to 7 a.m. on august 21, 1951, when he was on duty as.....
Judgment:

1. This appeal arises out of proceedings started by the widow of a deceased seacunny for compensation on account of death caused to her husband in the course of his employment with the opposite party, namely, Mackinnon Mackenzie & Co. (Private), Ltd., who hereafter will be referred to as the company.

2. The material facts lie within a narrow compass, any may be stated briefly as follows. The deceased, Eusoof Karbelkar, was employed as a seacunny on the ship S. S. Arbistan. Full course of the voyage of the ship is not on record. We, however, know that the ship had anchored at Antwerp and, later on, at London. Eusoof was on service on the said ship as a seacunny. The duties of a seacunny have been mentioned by witness. Harman Govind, who was examined for the applicants. According to him, one seacunny has to steer the wheel and the other seacunny has to attend as a stand-by. Each has to work 4 hours alternately. The total work is of 12 hours for each. The man who has to stand-by has to do polishing, scrapping, painting, stitching of tarpaulin, service to duty officer and preparing hot water for tea. When the ship is at the shore he has to clean the gangway, look after the ropes and tighten them up if they are loose. The seacunny does watch duty of the gangway also. Two persons alternately work continuously for 4 hours. After 4 hours, they get 4 hours' rest. For the 4 hours of duty, they have to stand. In this way, they work after every 4 hours and work 12 hours a day. On January 6, 1962, Eusoof complained of pain in the left shoulder when the ship was lying anchored at Antwerp. He was kept off duty for that day. On January 7, 1962, he worked for some time. He then complained of shortness of breath. He was, therefore, again placed off duty for that day. The ship reached the shore of London on January 10, 1962, and on that day he was taken to the shore hospital for observation. He was paid off on that day. After he was admitted to the hospital, he complained of breathlessness. An electro-cardiogram plate was taken which showed the presence of a posterior infaract. His condition remained the same till March 19, 1962 when he was discharged for being repatriated. He was being repatriated to India by ship S. S. Tangistan. While on board the ship, he breathed his last on the night between March 25, and March 26, 1962. The post mortem examination revealed that the left ventricle was hypertrophied, the coronary arteries showed irregular thickening, and the cause of death was described as coronary thrombosis. It is the case, therefore, for the applicant who is the widow of the deceased that her husband died of injury due to an accident arising out of and in the course of his employment. She has claimed a sum of Rs. 4,500 by way of compensation.

3. The company contended that there was no causal connexion between the employment of the deceased and the injury as a result of which he died. The Commissioner negatived the plea put forward on behalf of the company and ordered them to pay a compensation of Rs. 4,500 plus a sum of Rs. 150 by way of costs. It is against that judgment that the company has come in appeal.

4. Sri Atul Setalvad on behalf of the company has raised an interesting question of law. He pointed out that S. 3 of the Workmen's Compensation Act falls into three parts. Sub-section (1) deals with a case of personal injury caused to a workmen by accident arising out of and in the course of his employment. The sub-section provides that, in such a case, the employer will be liable to pay compensation in accordance with the provisions of the chapter. Sub-section (2) relates to what have been called 'occupational diseases' and which are known in the English statutes as 'industrial diseases.' Occupational diseases have been described in parts A, B and C of Sch. III of the Act. Sub-sections (2)(a) and (2A) relate to occupational diseases peculiar to the employment. What is significant to note about these two sub-sections is that contracting of such a disease.

'shall be deemed to be an injury by accident within the meaning of this section.'

5. Sub-section (3) empowers the State Government to add to the list of occupational diseases specified in parts A and B of Sch. III, and it empowers the Central Government to add to the list of occupational diseases specified in part C of the said schedule. Sub section (4) is important, and it is on the wording of this sub-section that the superstructure of Sri Setalvad's argument has been built. Sub-section (4) runs as follows :

'Save as provided by Sub-secs. (2), (2A) and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of an in the course of his employment.'

6. Sri Setalvad contended that Sub-section (4) provides an exception to the general rules laid down in Sub-secs. (1), (2) and (2)(a). Ordinarily no compensation would be payable to a workman in respect of a natural disease which leads to death in the normal course. Sub-section (4), therefore, lays down that compensation would be payable in respect of a disease, provided certain conditions are fulfilled, namely -

(1) the disease is directly attributable to a specific injury by accident, and

(2) it has arisen out of and in the course of his employment.

7. In this connexion, Sri Setalvad referred to the provisions of the English Workmen's Compensation Acts, 1906 and 1925. The provisions of Sub-section (1) of S. 1 of the English Act of 1925 are more or less similar to the provisions of Sub-section (1) of S. 3 of our Workmen's Compensation Act. The provision of S. 43 of the English Act are on the same lines as the provisions of Sub-secs. (2), (2)(a) and (3) of S. 3 of our Act. Sub-section (4) of S. 43 of the English Act is important and it provides :

'Nothing in this section shall affect the rights of a workman to recover compensation in respect of a disease to which this section does not apply, if the disease is a personal injury by accident within the meaning of this Act.'

8. Sri Setalvad has contrasted the wording of Sub-section (4) of S. 43 of the English Act with the wording of Sub-Section (4) of S. 3 of our Act. He argues that whereas Sub-section (4) of S. 3 of our Act embodied a saving clause, Sub-section (4) of S. 43 of the English Act keeps the right of a workman to claim compensation as a result of injury due to a disease unaffected, provided it is provided that the disease is a personal injury by accident within the meaning of the Act. Sri Setalvad's main argument was that although there have been numerous decisions of this High Court and also other High Courts in India in which compensation has been awarded on account of death by disease due to an injury arising out of and in the course of the employment, no High Court has taken notice of the peculiar wording of Sub-section (4) of S. 3 of our Act, nor has any one of them drawn a distinction between the provisions of Sub-section (4) of S. 3 of our Act and Sub-section (4) of S. 43 of the English Act.

9. The leading case decided by this Court on this point is Smt. Laxmibai Atmaram v. Bombay Port Trust : (1954)ILLJ614Bom . The facts of that case were simple : One Atmaram was employed as a watchman (opponent) by the port trust at its pumping station at Carnac Bunder, Bombay, and his hours of duty were 7 p.m. to 7 a.m. On August 21, 1951, when he was on duty as usual, at about 1 a.m. he complained of pain in his heart, and he was made to lie down. His condition got worse, and he died at about 6 a.m. The medical evidence showed that the deceased was suffering from heart disease and that the death was brought about by the strain caused by the deceased being on his legs for a certain period of time. Laxmibai, the widow of the deceased, applied to the Commissioner for Workmen's Compensation, claiming Rs. 3,000 as compensation in respect of the death of her husband. The Commissioner dismissed the petition and the applicant went in appeal to the High Court. Sri M. C. Chagla, the learned Chief Justice, who delivered the judgment of the Court, extensively referred to the decisions of the English Courts, and on a review of the provisions of S. 3 as also the English cases, held :

(1) that the deceased died of an injury by accident arising out of and in the course of the employment,

(2) that, under S. 3 of the Workmen's Compensation Act, it is not necessary that it should be established that the workman died as a result of an exceptional strain or some exceptional work that he did on the day in question, and

(3) that if the workman died as a natural result of the disease from which he was suffering then it could not be said that his death was caused out of his employment.

10. It was also held that, if the workman was suffering from a particular disease and as a result of wear and tear of his employment he died of that disease, no liability would be fixed upon the employer, but that, if the employment is a contributory cause or if the employment has accelerated the death or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable, and it could be said that the death arose out of the employment of the deceased. Sri Setalvad's grievance is that no reference has been made to Sub-section (4) of S. 3 of our Act. Sri. Setalvad went so far as to say that not only is there no express reference to Sub-section (4) of S. 3 but there is no reference even by implication to that sub-section. It is difficult to accept the second line of reasoning. The learned Chief Justice was considering the case of death as a result of heart disease. There was no physiological injury to the deceased in the ordinary meaning of that word. If at all, the case would fall within the purview of Sub-section (4), because, as was conceded by Sri Setalvad, in case of death by disease, the only sub-section applicable is Sub-section (4). Sub-section (1) obviously, even according to Sri Setalvad's argument, does not apply to the case of death by disease. Although, therefore, no specific reference has been made to Sub-section (4), it is implicit that the judgment was based on the provisions of Sub-section (4). The discussion shows to what extent the disease could be said to be attributable to the injury by accident arising out of and in the course of the employment. It was an admitted fact in that case that the deceased was suffering from heart trouble. The evidence disclosed that the condition of the heart disease was aggravated by reason of the work which he was carrying on and by reason of the strain to which he was put on account of the said work. Obviously, therefore, the learned Chief Justice was considering the question as to whether the disease could be said to be attributable to an injury by accident arising out of and in the course of the employment. The cases that were cited before the learned Chief Justice also related to death having been due to heart trouble. In McFarlane v. Hutton Bros. (Stevedores), Ltd. (1926) 20 B.W.C.C. 22, the man suffered from a chronic disease of the heart. He was working as a stevedore, and on the day in question he was employed in unloading a ship and he had to fill a tub with iron ore, and while he was pulling the tub he suddenly said 'Oh' and ceased to work for a moment, but recovering put some iron ore into the tub, when he again fell ill and stopped. He lay down and within half an hour he was dead. The County Court Judge held that the death was due to disease and that it had not been shown that he had been subjected to any sudden strain, but that the work was proceeding in the ordinary way, and, therefore, there had been no accident such as would entitle the dependent to compensation. In appeal, Lord Hansworth, Master of the Rolls, enunciated the law on accident as follows :

'If there is an unexpected personal injury arising from some physiological condition set up in the course of the work, that may be described as an accident even though there is at the moment nothing unusual or particular which sets it up.'

11. The other case referred to was Moore v. Tredegar Iron and Coal Company, Ltd. (1938) 31 B.W.C.C. 359. This was the case of a collier who was also suffering from a disease of the heart. The question raised by the County Court was whether the work which the workman had been doing at any time on that night caused or contributed to his death or in any way accelerated it. The County Court was unable to find any particular strain which actually caused the death and, therefore, it was constrained to hold that there was nothing unusual to contribute to his death. The Court of appeal held that, on evidence, the workman's death had been accelerated by his normal work on the night in question and, therefore, there must be an award in favour of the dependent. It is not necessary to refer to all the other cases considered by the learned Chief Justice. It will however, be interesting to refer to one case which was cited before the learned Chief Justice on behalf of the opposite party, Ormond v. C. D. Holmes & Co. Ltd. (1937) 2 All E.R. 795. According to Sri Petigara's argument advanced in Laxmibai case : (1954)ILLJ614Bom (vide supra), the decision clearly points out that unless the death is caused by some specific event or some specific act, and not by an incident which is part of the ordinary duties of the workman, the employer is not liable. Reliance was placed on certain observations of Lord Justice Slesser which were to the following effect :

'Of later authorities, all of which, I think, lead to the same conclusion that the workman must prove, to succeed, an accident, though, not necessarily punctuated, yet identifiable in time and circumstance :'

12. The learned Chief Justice pointed out that on the facts of the case which he was considering, the accident was clearly identifiable in time and circumstance because of the strain caused upon the workman by his being on his legs or moving about during the time that he was on duty. The following observations of Justice Romer in the same case were also cited :

'The difficulty in treating an industrial disease as an injury by accident in fact is manifest. It is the result, not of any particular untoward event, or unlooked for mishap, but one gradually brought about in the course of time. It is not, therefore, accidental.

13. The learned Chief Justice interpreted the above observations to mean that where we have a case in which the death is due solely to a disease from which the workman suffered and his employment has not been in any way a contributory cause, and the death is brought about by what might be called mere wear and tear, then it may be said that the death did not arise out of employment of the workman. On a review of Laxmibai case : (1954)ILLJ614Bom (vide supra), it is difficult to hold that the provisions of Sub-section (4) of S. 3 of the Workmen's Compensation Act were not present to the mind of the learned Chief Justice who decided the case.

14. I have already referred to the distinction which Sri Setalvad sought to make between the provisions of Sub-section (4) of S. 43 of the English Act and Sub-section (4) of S. 3 of our Act. Although Sub-section (4) of S. 3 of our Act seems to be laying down an exception to the general rule, namely, that it is only in the case of a personal injury by accident as distinguished from a disease that compensation is payable, still in substance, all that Sub-section (4) lays down is that compensation would be payable if the disease can be directly attributable to a specific injury by accident arising out of and in the course of the employment. Sub-section (4) of S. 43 of the English Act, in my opinion, is not materially different from Sub-section (4) of s. 3 of our Act. The logical corollary of Sri Setalvad's argument is that Sub-section (4) of S. 43 of the English Act embodies something like an inherent right vested in a workman to recover compensation in respect of a disease to which the section in terms does not apply. It was not shown that any such right exists, either at common law or otherwise. The right to recover compensation as a result of an injury by accident arises out of the statute and is a creature of the Workmen's Compensation Act. Nor do I think that the expression 'if the disease is a personal injury by accident within the meaning of this Act' appearing in the relevant section of the English Act, introduces a substantial difference in principle from the one laid down in Sub-section (4) of S. 3 of our Act. The expression 'the disease is a personal injury by accident' means that the disease must amount to a personal injury by accident. In other words, the disease and personal injury must be connected in some way as cause and effect. That is exactly the effect of the wording of Sub-section (4) of S. 3 which speaks of the disease that is directly attributable to a specific injury by accident. It is true that the words 'specific injury' have not been used in Sub-section (4) of S. 43 of the English Act. In my opinion, the expression 'specific injury' has been used by our legislature with a view to distinguish a case where death has been caused in the natural course of a disease. What is required to be proved under Sub-section (4) is that the disease must, in some sense, be attributable to the work that the workman was doing in the course of his employment.

15. Sri Setalvad contended that, under Sub-section (4), the causal connexion that must be established is of a special character, namely, that it must be proved that the injury has preceded the disease. In other words, the commencement of the disease must be due to the injury arising out of and in the course of the employment. According to him, it is not enough that the injury has contributed to or accelerated or aggravated the disease. I am unable to accept this line of reasoning for the simple reason that the commencement of the disease has not been highlighted by the words used in Sub-section (4). The words used are 'directly attributable to a specific injury.' The word 'attributable' is elastic enough, and it may embrace a contributory aspect of the injury arising out of and in the course of employment. Once it is established that the disease is directly attributable to a specific injury by accident and the accident has arisen out of and in the course of the employment, the compensation of a workman who has suffered death on account of a disease is assimilated to that of a workman who has suffered a personal injury under Sub-section (1) of S. 3.

16. In the view that I have taken about the effect of the decision of this Court in Smt. Laxmibai Atmaram v. Bombay Port Trust : (1954)ILLJ614Bom (vide supra) it is not necessary to consider the various questions of fact which were raised by Sri Kalal in the course of his argument. Sri Kalal contended that the seacunny in the present case has not been shown to have any pre-existing heart trouble when he was appointed in the service. According to him, the deceased must have contracted the disease while he was in service. He pointed out that a seacunny is exposed to the severity of differing climates and extremes of heat and cold. The post mortem examination notes seem to suggest that the heart trouble from which the seacunny was suffering was of a chronic character. It is not, however necessary to consider these questions of fact, because, according to me, the question whether the injury which has arisen out of and in the course of the employment caused the commencement of the disease is immaterial.

17. The result is the appeal fails and is dismissed with costs.


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