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Santan Fernandes Vs. B.P. (India) Ltd., Bombay - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 94 of 1955
Judge
Reported in(1956)IILLJ21Bom
ActsWorkmen's Compensation Act
AppellantSantan Fernandes
RespondentB.P. (India) Ltd., Bombay
Excerpt:
.....applicant's son-scullion on ship arose in course of and out of employment - deceased suffered from heat stroke and died - such accident was not due to general weather conditions - weather conditions were same for everybody on ship - deceased was not suffering from any physical peculiarity or from organic infirmity - deceased made several trips forward and backward between ice room, kitchen and pantry - deceased was subjected to risk of sudden exposure to great variation in temperature - variation from very low temperature of ice room to high temperature of kitchen - held, accident occurred in course of employment so compensation be paid to applicant. - - on the record before us, we are satisfied that the deceased scullion, by reason of his having to be on the move between the ice..........from the nature of the deceased's employment that the said employment was a proximate cause of a heat stroke from which he suffered and on account of which he lost of life if an employee works under cover, if the nature of his employment does not expose him directly to the rays of the sun, if the atmospheric temperature is 101 degree but the nature of the employment as a scullion requires the employee to move suddenly from the law temperature of a cold storage room to the atmospheric temperature of 101 degree and even higher temperature of a kitchen and if, while doing that duty, he suffers from heat stroke and dies, is a legal inferences permissible that the accident arose out of his employment and was not due to the general weather conditions to which not only the employees but all.....
Judgment:

Vyas, J.

1. This is an appeal by the original applicant, and it raises point of law whether the accident which resulted in the death of the applicant's son who was a scullion on a ship arose in the course of, and out of, his employment with the opposite party. Can a legal inference be drawn from the nature of the deceased's employment that the said employment was a proximate cause of a heat stroke from which he suffered and on account of which he lost of life If an employee works under cover, if the nature of his employment does not expose him directly to the rays of the sun, if the atmospheric temperature is 101 Degree but the nature of the employment as a scullion requires the employee to move suddenly from the law temperature of a cold storage room to the atmospheric temperature of 101 Degree and even higher temperature of a kitchen and if, while doing that duty, he suffers from heat stroke and dies, is a legal inferences permissible that the accident arose out of his employment and was not due to the general weather conditions to which not only the employees but all others in the same place were subject These are questions which we have to answer in this case.

2. The facts which have given rise to this appeal may now be stated. The application has been made to recover a sum of Rs. 3,500 from the opposite party, B.P. (India), Ltd., as compensation in respect of the death of the applicant's son Joaquim Fernandes. Joaquim Fernandes was in the employment of the opposite party as a scullion on the s.s. 'British Chemist.' His duties were (1) to wash the dishes, utensils and crockery; (2) to convey food from the kitchen to the pantry; and (3) to assist in serving morning tea to the officers in their cabins. While he was performing those duties on 28 July, 1953, when the ship was near Bahrein, he suffered from a heat stroke and collapsed. He went into coma. His temperature rose to 110 Degree. He was removed to the ice room, artificial respiration was resorted to but he died. The applicant's contention is that the mishap of the heat stroke which resulted in the death of her son occurred when the deceased was in the course of the employment of the opposite party, and it arose out of the said employment and it arose out of the employment and therefore the opposite party is liable to pay compensation. In the written statement filed by the opposite party, the opposite party has denied that the accident arose out of and in the course of, the employment of the deceased. According to the opposite party, the deceased party, the deceased died of a natural cause, viz., a heat stroke. The opposite party contends that the heat stroke was merely a consequence of the severity of the weather; that the deceased was not specially affected by the severity of the weather by reason of his employment; that his work did not in any manner contribute to his death. Accordingly, the opposite party submits that it is not liable to pay compensation to the applicant.

3. The learned Commissioner for Workmen's Compensation observed in the course of his order that no evidence was led on behalf of the applicant to show that the work of the deceased exposed him to special risk of heat stroke. The learned Commissioner said that the deceased scullion has to work and under cover, that he was not exposed to the rays of the sun or the heat of the engine room or the heat of the kitchen and that the character of his employment 'was not such as to create or intensify the risks that arise from extraordinary natural causes.' The learned Commissioner came to the conclusion that the employment of the deceased did not expose him 'to some peculiar or extraordinary danger' and therefore it could not be said that he died of an injury by accident. In this view, 'the death of the deceased was not due to injury by accident arising out of and in the course of his employment.' Accordingly he dismissed the application. From that order, the applicant has appealed.

4. Mr. Beynon for the opposite party opposes the appeal and contends that the atmospheric temperature on that day was 101 Degree which could not be called on a high temperature, that the duties of the deceased involved only occasional visits to the kitchen, that during those visits he did not have to stay long in the kitchen and that in these circumstances it could not be said that the deceased was exposed to any peril in the course of his employment as a result of which he suffered from heat stroke and died. According to Mr. Beynon, the heat stroke from which the deceased to suffered might have been the result of the general weather conditions to which everybody on the ship was subject alike.

5. Mr. Beynon forgets that though the atmospheric temperature of 101 Degree may not normally be called a high temperature, it would still be a high temperature as contrasted with the temperature of the cold storage room or the ice room where the temperature would be very low. Mr. Beynon overlooks the fact that in the course of his employment and as a matter of his duty the deceased had to move from the atmospheric temperature of 101 Degree to the low temperature of the ice room and thence again to the temperature 101 Degree and was accordingly subjected to the peril of sudden exposure to high temperature, notwithstanding the fact that he moved under cover and did not have to expose himself directly to the rays of the sun. In our opinion, Mr. Beynon has not sufficiently assessed the importance of the fact that, although the weather conditions were the same for everybody on the ship and although there was nothing to show that the deceased suffered from any physical peculiarity or disability or from any organic infirmity, he alone suffered from heat stroke, a circumstance prima facie suggestive of the probability that unless the deceased was exposed to some special peril arising out of his employment, he would not have suffered from a heat stroke.

6. On that day, there were 9 officers and 47 crew on the ship. Thus, 56 persons were having their meals on the ship and the food for them would normally consist of articles cold and hot. The cold things, such as meat, fish, eggs, butter etc., would be kept in the ice room and would be conveyed from that room to the kitchen or the pantry by a scullion. The deceased was the only scullion on the ship on that day (28 July, 1953). Mr. Brown, the shipping assistant, who has given evidence in this case, has stated that a scullion has to go to the ice room 'to take a meat, etc., from the ice room to the kitchen.' The hot food would be in the kitchen and had to be taken from the kitchen to the pantry some fifteen minutes before the meal time. This was also the work of the deceased. It is futile to suggest that while fetching the food from the kitchen to the pantry, the scullion would be in the kitchen for a few seconds only and that he would hop into and out of the kitchen, carrying the food with him. Such a suggestion is impossible and impracticable. We must understand the realities of the situation. After the scullion goes into the kitchen, the cook would naturally take some time to keep the various articles of food in plates and dishes and then only the scullion would collect the plates and dishes and carry them to the pantry. All this cannot be done in a few seconds by hopping in and out between the kitchen and the pantry. Looking to the number of people (they were 56) who were to have their meal and considering the quantity of food which would have to be the conveyed from the ice room to the kitchen or the pantry, and from the kitchen to the pantry, it is only reasonable to assume that more visits than one were necessary to be paid by the deceased to the ice room, the kitchen and the pantry for conveying, the food to the pantry. In our opinion, as the deceased was the only scullion on the ship food and as there were as many as 56 people for whom food had to be brought to the pantry the deceased must have made several trips forward and backward, between the ice room, the kitchen and the pantry and was thus subjected to the risk of sudden exposure to great variation in the temperature including a variation from a vary low temperature of the ice room to a high temperature of the kitchen. Even after the meal was finished, the food which was to be preserved for use at a subsequent meal had to be kept in the cold storage and for that purpose also the deceased must have repeated his trips between the kitchen, the pantry and the ice room, again exposing himself to the risk of suddenly moving into a high temperature area from a law temperature area.

7. In the case of Simpson v. Sinclair 1917 A.C. 127 Lord Shaw observed (p. 142) :

'.... my view of the statute is that the expression 'arising out of the employment' is not confined to the mere 'nature of the employment.' The expression, in my opinion, applies to the employment as such, to its nature, its condition, its obligations, and its incidents. If by means of any of these the workman is brought within the zone of the special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply. If the peril which he encountered was not added peril produced by the workmen himself, as in the case of Plumba v. Golden Flour Mills Company, Ltd. 1914 A.C. 62, and Barnes v. Nunnery Colliery Company, Ltd., 1912 A.C. 44, in this House, then a case for compensation under the statute appears to arise.'

8. In the present case, it was an incident of the employment of the deceased and it was one of the obligations of that employment that, in the discharge of his duties as scullion, he had to keep on visiting the ice room, the kitchen and the pantry for taking the cold stuff from the cold storage to the kitchen or the pantry and the hot things from the kitchen to the pantry. At the conclusion of the meal, he had again to alternate his visits between the kitchen and the cold room for keeping in the cold storage the food which had been left over and had to be preserved for a subsequent meal. In our view, by reason of these obligations and conditions of his employment to which the deceased was subject to in the course of the discharging his duties, he was brought within the zone of a special danger, viz., exposure to sudden heat after having been in a law temperature area in the ice room. There is nothing to show that to the above mentioned peril, which the deceased had to encounter in the course of and as arising out of his employment, he had added any peril by his own conduct. That being so, in the light of the observations of Lord Shaw in the abovementioned case, this would be an eminently fit case where compensation should be paid to the applicant by the opposite party.

9. In Bhagubai v. Central Railway 1954 II L.L.J. 403 which was a case decided by a Division Bench of this Court consisting of the learned Chief Justice and my learned brother, it was held that there must be a causal connexion between the accident and the employment of the deceased in order that the Court could say that the accident arose out of the said employment. It was pointed out by the Court that, if the employee, in the course of his employment, had to be in a particular place and had to, face a peril by reason of his being in that place then a causal connexion was established between the accident and the employment, and the mere fact that the employee shared that peril with other members of the public was an irrelevant consideration. On the record before us, we are satisfied that the deceased scullion, by reason of his having to be on the move between the ice room, the kitchen and the pantry had to face a peril, viz., an exposure to a sudden and great variation from low temperature to high temperature, and accordingly a causal connexion was established between the heat stroke from which he suffered and the incidents and obligations of the employment to which he was subject. Thus, this case is fully governed by the principles laid down by this Court in Bhagubai v. Central Railway.

10. In Halsbury's Laws of England, 2nd edn. Vol. XXXIV, p. 837, Para. 1170, the learned author has said that where the injury is directly due to a locality risk, the fact that the risk itself arose from the operation of a natural force is immaterial and it is not necessary to prove special exposure to such risks. These observations of the learned author would aptly apply to the facts of the present case. The risk which the scullion had to encounter in the course of his employment, viz., the risk of exposure to a sudden variation in temperature from a law temperature to a high temperature by reason of his having to move from a low temperature area to a high temperature area, could be appropriately termed 'a locality risk' and the fact that the risk itself might to a certain extent have arisen from the operation of a natural force, viz., the atmospheric temperature of 101 Degree on that date, would be immaterial. It would also be unnecessary to prove special exposure to such risks.

11. In Bombay Port Trust v. Yamunabai : (1952)ILLJ1Bom a decision to which my learned brother was a party, a workman who was employed as a carpenter in a workshop along with other workmen was killed as a result of injuries sustained by him as a explosion of a bomb which was placed by an unknown person near the place where the workman was doing his work. In a claim for compensation under the Workmen's Compensation Act, a question arose whether the personal injuries which were caused to the workman were caused by an accident arising out of his employment. It was held that the workman had received personal injuries as a result of an accident arising out of his employment. My learned brother who delivered the judgment of the Court in that case, observed (at p. 5) :

'.... If a claim to compensation can be sustained upon the basis of the fall of roof, which was the result of the fall of a neighbour's wall, I do not see why, in principle, a claim to compensation cannot be sustained in a case, where a workmen was admittedly working at a time and place, when as a result of an explosion of a bomb, which was near the table and was assigned to him, the workman received injuries, as a result of which he died.'

12. In the abovementioned case, a bomb was not expected to have any connexion with the ordinary course of the employee's under employment. Some unknown person had placed it and the deceased employee was not responsible for it in any manner. He was working in the neighbourhood of that place when the bomb suddenly exploded. It was a result of that explosion, which was entirely unforeseen, that the employee sustained injuries and died. If even in those circumstances the accident could be held to have arisen in the course of and out of the workman's employment, it is difficult to understand why in the present case, where the deceased scullion was working at the time and he place when and where he suffered from an accident of a heat stroke, it could not be said that the accident occurred in the course of, and arose out of, his employment.

13. The learned Commissioner seems to have relied considerably on the fact that the deceased was not exposed directly to the rays of the sun or to heat of the kitchen. It is, however, to be remembered that in such cases a direct exposure to the rays of the sun is not necessary. Glaister in his Medical Jurisprudence and Toxicology, 9th edn., at p. 233, has observed :

'Morton has suggested that there is no hard and fast line between the severe heat exhaustion and heat stroke ... these conditions will be described under one heading .... it is advisable to adopt only one term, heat hyperpyrexia. This condition is prone to develop in those who have work in abnormally high temperatures, for example, stokers and engineers and, contrary to past belief, neither is exposure to sunlight nor the presence of humidity in the atmosphere necessary.'

14. According to the learned author, therefore, in order that person may suffer from heat exhaustion or heat stroke, it is not necessary that he must have been subjected to an exposure to sunlight. Modi also in his Medical Jurisprudence and Toxicology, 11th edn., at p. 181, while dealing with heat exhaustion, heat hyperpyrexia (heat stroke or sun stroke) and heat cramps, has observed that exposure to the direct rays of the sun is not necessary and that an individual may be affected while working in a closed, hot, and badly ventilated room or factory. In this particular case, it is to be remembered that under the conditions under which the deceased scullion was working, he was exposed to the risk of the subjecting himself to a high temperature, for the kitchen temperature was undoubtedly a high temperature as contrasted with the temperature of the ice room. Even the atmospheric temperature of 101 Degree would be a high temperature as compared to the low temperature of the cold storage room; and if a person has to move frequently between the ice room, the kitchen and the pantry, he would run the risk of an exposure to a high temperature. In this connexion, it may be pertinent to turn one again to Glaister's Medical Jurisprudence and Toxicology, where on p. 234, the learned author has referred to 109 cases having suffered from the effects of heat stroke. The learned author has pointed out that in none of those 109 cases was the history of excessive exposure to sun elicited. The point is that it is not necessary in a case of this kind to prove that the individual concerned was subjected to an excessive exposure to sun.

15. Mr. Beynon as contended that, since the ice treatment was resorted to for reducing the temperature of the deceased (his body was placed upon a slab of ice), the visits which the deceased had to pay to the ice room and thence to the kitchen and the pantry could not have contributed to a heat stroke. This is an extraordinary and patently unsound contention. If a person, who has suffered from a heat stroke by reason of an exposure to high temperature, is put upon a slab of ice for reducing his temperature, it could not be said that the stroke had not resulted from a high temperature.

16. In the result, we are unable to confirm the order passed by the learned Commissioner for Workmen's Compensation. This is a case in which the applicant has made out her contention that the accident, from which her son suffered, occurred in the course of his employment and arose out of his employment with the opposite party. So far as the quantum of compensation is concerned, there is no dispute about it. Accordingly the appeal is allowed; the order passed by the Commissioner for Workmen's Compensation is reversed; and we direct that the opposite party, B.P. (India), Ltd., shall pay to the applicant a sum of Rs. 3,500 by way of compensation. The opposite party will bear its own costs as also the applicant's costs in both the Courts.


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