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Rajiyabi Cosman Sayi and anr. Vs. Mackinon Machinazie and Co. Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberAppeal No. 9 of 1967
Judge
Reported inAIR1970Bom278; (1970)72BOMLR358
ActsWorkmen's Compensation Act, 1923 - Sections 3, 3(5), 4, 4A(1), 10, 19, 19(1), 19(2), 20, 21(1), 22(1), 22(2), 22A, 23, 24, 25, 26, 27, 29, 30, 30(2), 31, 32 and 32(2); Code of Civil Procedure (CPC), 1908 - Sections 115 - Order 5, Rules 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 - Order IX - Order XIII, Rules 3, 4, 5, 6, 7, 8, 9 and 10 - Order 26, Rules 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 - Order XVII - Order 23, Rules 1 and 2; Bihar and Orissa Co-operative Societies Act, 1935; Contempt of Courts Act, 1952; Bombay Municipal Corporation Act, 1888 - Sections 527; Motor Vehicles Act, 1939
AppellantRajiyabi Cosman Sayi and anr.
RespondentMackinon Machinazie and Co. Pvt. Ltd.
Appellant AdvocateS.K. Kalal and ;A.R. Panjawani, Advs.
Respondent AdvocateJ.I. Mehta and ;R. Norohna, Advs., i/b., Crawford Bayley and Co. Attorneys
Excerpt:
.....patent--commissioner under act whether court and his decision a judgment.;an order passed in appeal by the high court under section 30 of the workmen's compensation act, 1923, is a 'judgment' within the meaning of clause 15 of the letters patent. ;the commissioner under the workmen's compensation act is a court and his adjudication under the act is a judgment and not an award. ;secy, of state for india in council v. mst. geeta alias mariam [1939] nag. 124, dissented from. ;mohanlal v. fine knitting mills (1959)62 bom. l.r. 195, agreed with. khairunnissa v. municipal corp., bombay (1965) 67 bom. l.r. 903, not followed. ;raipur manufacturing co. v. shrimati chhoti gantoli (1952) letters patent appeal no. 2 of 1952, decided by bavdekar and dixit jj., on september 3, 1952 (unrep.),..........arising out of and in the course of his said employment on s. s. caltex london.4. before the learned commissioner the parties led evidence to show the nature of work done by the deceased as a seacunny on the said ship. from the evidence of two witnesses, namely, abbas gulam hussain and martin pinto, it was shown that the deceased had to work for 12 hours as seacunny, that he had to work for four hours at an interval of four hours during night and day, that during his work the deceased had to stand throughout, that in the wheel room where the deceased worked there used to be smell of oil and at the time of loading of oil the fumes of smell became suffocating. the appellant's case was that the duties of the deceased as seacunny were hard, particularly as he had to stand during day.....
Judgment:

Nathwani, J.

1. This is a Letters Patent Appeal by original applicants against the order of Mr. Justice Chitale dated 28th February, 1966, setting aside the order of the Commissioner awarding Rs. 4,000 as compensation under the Workmen's Compensation Act, 1923 hereinafter referred to as 'the Act'.

2. The facts of the case are as follows:--The original applicant No. 1 is the widow of one Oosman Baba, who was employed as a seacunny on a ship named S. S. 'Caltex London' belonging to M/s. British Industries Navigation Company Ltd. of which the original opponents are the Agents. On December 15, 1960, Oosman Baba signed the articles and boarded the said ship 'Caltex London'. While working on the said ship as a seacunny Oosman Baba fell ill on January 20, 1961, when the said ship was at Bahrain and was immediately taken to Awali Hospital, Bahrin. On admission he complained of chest pain for the previous week with cough and expectoration. He was treated for his illness in the hospital. On or about 31st January, 1961, he showed signs of tuberculoses bronchopneumonia with suggestion of pericardial effusion. Subsequently his condition slowly deteriorated and, ultimately, on 28th February, 1961 he died in the said hospital. The deceased left him surviving as his heirs his widow and a minor son being respectively the original first and second applicants.

3. On May 24, 1961, the applicants filed application No. 336/B-42 of 1961 in the Court of the 2nd Additional Commissioner at Bombay claiming Rs. 4,500 as compensation in respect of the injury caused to the deceased by accident arising out of and in the course of his said employment on S. S. Caltex London.

4. Before the learned Commissioner the parties led evidence to show the nature of work done by the deceased as a seacunny on the said ship. From the evidence of two witnesses, namely, Abbas Gulam Hussain and Martin Pinto, it was shown that the deceased had to work for 12 hours as seacunny, that he had to work for four hours at an interval of four hours during night and day, that during his work the deceased had to stand throughout, that in the wheel room where the deceased worked there used to be smell of oil and at the time of loading of oil the fumes of smell became suffocating. The appellant's case was that the duties of the deceased as seacunny were hard, particularly as he had to stand during day and night for 12 hours in the course of his duties.

5. On the material placed before him the learned Commissioner made his finding that the deceased died of injuries due to accident arising out of and in the course of his employment with the opposite party and observed as follows :--

'.....In the facts of this particular case, it is more than plain that the deceased workman who was suffering from the two ailments namely, pulmonary tuberculosis and heart trouble had a sudden attack while on duty and as such the employment can reasonably be said to be contributory cause or that it accelerated his death. There is no evidence at all to show that on 20th January 1961, while he had an attack he was not on duty and in any case, therefore, it can also easily be said that the death of the deceased was not only due to the disease but the disease coupled with the employment.' xx xx x The Commissioner, in making the above finding, followed the ratio of the decision of this Court in the leading case of Laxmibai v. Bombay Port Trust, : (1954)ILLJ614Bom .

6. Being aggrieved by the said order of the learned Commissioner the opposite party filed an appeal to this Court. The said appeal came up for hearing before Mr. Justice Chitale on 28th February 1964 when the Counsel on behalf of the applicants was absent and the learned Judge decided the appeal ex parte against the applicants. However, later at the instance of applicant's Counsel and with the consent of the Counsel for the Opposite party, the learned Judge reheard the appeal on 2nd March, 1966. The learned Judge held that the remark in the medical report which indicated that the deceased had pain in the chest with cough for one week before 20th January, 1961 would not be enough to establish a causal connection between the course of employment and the illness which ultimately resulted into the death of the deceased, as pain in the chest may be due to several reasons. In the result the learned Judge allowed the appeal, set aside the order of the learned Commissioner and dismissed applicants' claim for compensation.

7. The present Letters Patent Appeal is filed against the said order passed by Mr. Justice Chitale.

8. At the outset Mr. Noronha, the learned Advocate on behalf of the Opposite party-respondents raised a preliminary objection. He contends that there is no appeal to the High Court under the Act against an order of the Commissioner except under Section 30 of the Act, that the order passed by Mr, justice Chitale under the said Section 30 is not a judgment within the meaning of Clause 15 of the Letters Patent, and therefore the present appeal is not maintainable. He developed his point by arguing that the proceedings before a Commissioner under the Act are in the nature of an arbitration and his decision an award; that he is not a Court; that the proceedings in appeal before the High Court under Section 30 of the Act are a mere continuation of the original proceedings before the Commissioner and do not change their original nature and therefore the order passed by the learned Judge does not amount to a judgment. In support of his contention he relied upon decisions in Secretary of State for India v. Geeta, ILR (1939) Nag 124 =


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