1. One Santoline Fernandes was employed by the opponents, Mackinnon Mackerzie & Co. (Private), Ltd., on their vessel m. v. 'Pundua' on 4 May, 1960. In the course of his employment, he suffered, while removing certain articles in the store-room of the ship, injury to his eyes by chilly powder. He washed his eyes and to some extent he felt some relief. But in about four to five days' time, a film developed in the eyes. The chief officer had no medicine for the eyes. At Kobe in Japan, the master of the ship took him to a Japanese doctor. At Ure, he was taken to a hospital. From there when the ship reached Yokohama he was taken to a hospital and an operation was performed. The petitioner remained in the hospital for six days. He was then transferred to a cargo ship S. S. 'Umaria' belonging to the respondents and brought to Bombay. He then gave notice of the accident because permanent defects developed in his eyes and then he made the application for award of compensation against the respondents, claiming a sum of Rs. 5,600.
2. During the pendency of the application, the employee died and his heirs, now the two petitioners, made an application to the Commissioner for being brought on record as legal representatives. This application was resisted by the respondents. The Commissioner held that there was no provision in the Act for bringing heirs and legal representatives on record of the case, that the dependents were entitled in their own right to seek remedy under the Act and that, therefore, the application of the petitioners to be brought on record was not tenable and the claim abated.
3. The first question is whether the claim of the workman has abated.
4. The question must depend, in the first instance, upon the terms of the Act itself. Prior to the passing of the Act, a workman who suffered injury had no remedy except when he could justify the claim for damages on the ground of tort. By the Workmen's Compensation Act, he became statutorily entitled for compensation for injury and death under S. 3, if he was a workman and if 'accident arose out of and in the course his employment.' By the same section, his employer became liable to pay compensation in accordance with the provisions Chap. II of the Act, except in the excepted cases. Section 4(1) prescribes the amount of compensation which is calculated on the basis of his monthly wages as in Sch. IV : In the cases of total disablement, in cases falling within Sch. I, proportionately to the loss of earning capacity in accordance with the prescribed percentage of loss in that schedule and in other cases not specified in Sch. I, in proportion to the loss of his earning capacity.
5. Section 4A provides that the compensation under S. 4 shall be paid as soon as it falls due. This means that the payment of compensation is not dependent upon the determination of the same by the Court or on its the discretion. But it must be paid immediately it falls due. By Sub-section (2), even if the employer disputes the amount, he is bound to make provisional payment on the basis of the extent of the liability which he admits, and by Sub-section (3) it is provided that if the employer is in default in paying the amount within one month from the date it falls due, the Commissioner may direct simple interest at the rate of 6 per cent per annum together with a sum not exceeding 50 per cent by way of penalty if the Commissioner finds that there was no justification for the delay. Examination of S. 11 indicates that even where the workman has suffered injury by accident and is entitled to compensation, his right to compensation is suspended under Sub-section (2) of that section because of his refusal to submit to medical examination, and if he dies without his medical examination having been done, his dependents may be able to obtain the same. Even if an employer transfers his assets before making payment of the amount due when the liability has accrued before the date of the transfer, S. 14A creates a first charge on the transferred assets.
6. I am clear, therefore, on the provisions of this Act that the liability is created immediately on the accident occurring to the workman suffering the injury and must amount to a debt payable to the workman.
7. In this connexion, I may usefully refer to the decision in United Collieries, Ltd. v. Simpson 1909 A.C. 383 where the question arose under the English Act of 1906 in a slightly different form, the question belong whether the right of the dependent of a deceased workman who died as a result of an accident arising out of the employment passes to the executor of the sole dependent who died without having made a claim. Lord Loreburn, L.C., said (p. 389) :
'... Now, where the Act says that the employer is liable to make compensation in the event of death in case there are dependants, irrespective of their expectation of life, and they are described as the persons for whose benefit it is to be paid, that certainly looks like a debt arising on the death from employer to dependants. When I turn to the other provisions of the schedule, I think they fit this view.'
8. Lord Macnaghten expressed the view that as under the Act in the absence of an agreement, the amount of compensation in the case of death was to be paid into Court and that there being no provision for any refund, would indicate that in the case of death when the liability once accrued and the right of the dependent came into existence, it fell upon the employer to satisfy the liability and that he had no further concern in the matter. Lord Dunfermline said :
'in view of the provisions of the statute, it seems to me impossible to contend successfully that the liability of the employer was not of the nature of a debt.'
9. Similar observations have been made in the earlier case in Darlington v. Roscoe & Sons (1907) 1 K.B. 219. In a similar case under the present Workmen's Compensation Act, following the decision in Darlington v. Roscoe & Sons (vide supra), the Andhra Pradesh High Court, in Radhakrishna Rice Mill v. G. Appalacharyulu 1958 I L.L.J. 746 held that the right of the dependent to get the compensation passed on to the heir of the dependent.
10. In America, it seems the question has largely been decided by reference to the provisions of the statutes under which compensation becomes payable. In American Jurisprudence, Vol. 58, in Para. 577, it is said :
'The survival of the right to compensation is dependent, in most jurisdictions, upon whether such compensation had become due and payable at the time of the death of the beneficiary.'
and in Para. 578 it is said :
'It is generally held that instalments of workmen's compensation which were due, but unpaid, at the time of the death of the beneficiary, constitute assets of his estate, in the absence of any provision to the contrary.'
11. Similarly, in Corpus Juris Secundum, Vol. 100, Para. 417, it is said :
'Unless the Compensation Act provides otherwise, the general rules governing the abatement of actions apply in actions for compensation,'
and under the heading, 'Death of employee,' it is said :
'Under some statutes it has been held that a proceeding for compensation does not abate on the death of the employee before an award, and the death of the employee does not deprive the commission or board of jurisdiction to proceed further.'
12. Since under the Act the liability accrues on the accident or the death occurring, it cannot abate unless there is in law some provision by reason of which it ceases. It is argued by Sri Mehta that S. 306 of the Indian Succession Act is such a provision which reads as follows :
'All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.'
13. It is argued that the words used in the exception are large enough to exclude all personal injuries which do not cause the death of the party and the present must be regarded as such injury. The question is whether this contention is sound.
14. This section is based on the ancient common law rule actio personalis moritur cum persona as to which Sadasiva Ayyar, J., in Rustomji Dorabji v. Nurse I.L.R. 1920 Mad. 357 said (p. 369) :
'... I may add that it seems to me to be based upon no principle of justice, equity or good conscience, and that the technical common law rules as to forms of action and the distinction between real and personal actions might have had much to do with its survival in modern days ...'
15. I agree, with respect, with the said observation. This maxim was considered in the case of United Collieries, Ltd. 1909 A.C. 388 (vide supra) (referred to earlier) by the House of Lords. Lord Macnaghten (p. 391) observed that the application of the maxim is limited to actions in which remedy is sought for a tort or for something which involves, at any rate, the notion of wrong doing, and this is generally the opinion expressed in decided cases, to which I have already referred.
16. The language of S. 306 of the Succession Act may no doubt appear to be general, but it is not always that a word of general import must necessarily receive a general and wide meaning. The words 'other personal injuries not causing the death of the party' are proceeded by the words 'defamation, assault, as defined in the Penal Code.' These words, 'other personal injuries ...' therefore, must receive colour from the earlier words and ought to be construed ejusdem generis with the words preceding as held in Krishna Behari Sen v. Corporation of Calcutta I.L.R. 1904 31 Cal. 993. The other High Courts also agreed that the words 'other personal injuries not causing death of the party' should be construed ejusdem generis as has been done by the Calcutta High Court, but differ from it in holding that they include injury caused by malicious prosecution. See Rustomji v. Nurse I.L.R. 1920 Mad. 35 ; Punjab Singh v. Ramautar Singh (1919) 4 Pat. 676 ; Motilal v. Harnarayan I.L.R. 1923 47 Bom. 716 and Mahtab Singh v. Hub Lal I.L.R. 1926 48 All 630. The preponderance of the view, therefore, of the Courts in India is that the words 'other injuries' must be confined to the injuries the nature referred to earlier.
17. Under the Act, the compensation becomes payable, not because of a tort, or wrong doing by the employer :
'Liability under the Workmen's Compensation Act has no connexion with any wrong doing on the part of the employer. It does not result from any neglect or any default on his part. Indeed, in the case of death, or 'serious and permanent disablement,' the event may be the consequence of 'serious and wilful misconduct' on the part of the workman while the employer is wholly free from blame, and yet compensation may be recoverable all the same.' [United Collieries case 1909 A.C. 383 .]
18. Under the present Act, the liability is negatived under S. 3(1)(b) only if the workman has been at the time of the accident under the influence of drink or drug or has disobeyed wilfully an express order or an express rule for the purpose of securing safety of workmen or has wilfully removed or disregarded any safety-guard or other device which he knew to have been provided for the purpose of safety of workmen. Except in these limited cases, in all other cases of accident, the workman is entitled to compensation. Section 306 of the Succession Act, therefore, has no application in the present case.
19. My attention has been invited to Halsbury's Laws of England, 2nd Edn., Vol. 34, p. 896, Para. 1232, where it is said :
'The right to recover is not transmitted by the injured workman to the dependents ...'
and the cases referred to in footnote (h) in particular, the decisions in Manton v. Cantwell 1920 A.C 781 and Cleverly v. Gas Light and Company I.L.R (1907) 24 93. These cases have in my view absolutely no application to the facts of the present case. The question in each of the cases was whether by reason of an agreement made by the employer with the employee who had sustained an accident, the employer was estopped from contending that the accident did not arise out of and in the course of employment or that the workman was not an employee in an application made by the dependent of the employee for the award of compensation and the Court there held that since the right of the dependents to obtain in case of death of the employee by the accident was independent of the employee, there could be no estoppel by reason of the agreement.
20. The further question then is whether the application abates, and the petitioners must file a second application for the purpose. This is not a case where the death has occurred by reason of the accident taking place in the course of the employment. By reason of the accident personal injury was caused to the workman. The petitioners would have been entitled to present an application if death had occurred as a result of the accident. In the present case, however, they would not be able to make an independent application in their own right, since the death has occurred by reasons extraneous to the accident. The right of the workman himself having survived, is it necessary that they should be driven to any other proceeding either under the Act or under the general law I think, not.
21. Under S. 32 of the Act, the State Government is entitled to frame rules to carry out the purposes of the Act and under Sub-section (8) it is entitled to make rules for prescribing the procedure to be followed by the Commissioner in the disposal of the cases under the Act. Under the powers vested in it, the State Government by rule 41 has applied some of the provisions of Sch. I of the Civil Procedure Code to a proceeding under this Act. It is true that the provisions of order XXII, rules 3 and 4, are not applied under the Act. Nonetheless, as the right given by the Act is transmitted to the petitioners, the application cannot be dismissed, since there is no provision for the dismissal of an application on the ground of death. It has to be prosecuted and conducted to its legitimate end. There is no prohibition in the Act and the rules framed under S. 32, that the heirs cannot be brought on record. In law all procedure is permissible as is not specifically prohibited - Abdul Gani Sumar v. Reception Committee, Indian National Congress (1935) 38 Bom. L.R. 380 and Narsingh Das v. Mangal Dubey I.L.R. 882 5 All. 163. If so, in my view, the petitioners are entitled to be brought on record of the proceeding.
22. I accordingly set aside the order made by the learned Commissioner and direct that the petitioners be brought on record of the case, and the case proceeded with from the stage from which it was left.
23. There will be no order as to costs.