1. Messrs Eastern Watch Company Ltd. have a showroom on the ground floor of Commissariat building on Dadabhai Naoroji Road. The building is a five storeyed one and the ground floor houses many other showrooms. Other floors have been let out to office establishments and conveniences have been provided for the inmates of each floor. The second floor is wholly occupied by the L.I.C. Office and the L.I.C. management do not permit people from other floors to use their conveniences.
2. The deceased Anthony V. Pareira was a salesman employed by the Eastern Watch Company. He joined the company along with Miss Jessie Roberts sometime in 1955. He was performing the usual salesman duties of a showroom which included attending to customers, showing the watches, time pieces, clocks etc. Anthony Pareira was drawing Rs. 170/- as basic pay plus allowances.
3. On 4th February, 1974 Pareira reported on duty in the morning, worked as usual till 4.00 p.m. when he left the shop telling his co-worker Jessie Roberts that he would be back within five minutes. As Pareira did not come back for about half an hour Jessie became apprehensive. At that time someone from the first floor came to the shop and told Jessie that Anthony Pareira had fallen unconscious on the third floor. The partners of the firm were informed and some of the employees of the firm went upstairs to render assistance but were told that Pareira was removed to the hospital.
4. Pareira, after being admitted, died in the hospital and Dr. Sushil Raj who conducted the post-mortem examination found that Pareira died as a result of acute coronary insufficiency, that the heart of the deceased was dilated and showed areas of infraction.
5. The Second Additional Commissioner for Workmen's Compensation, Bombay, before whom the application for compensation was filed having dismissed it, the present appeal has been preferred under S. 30 of the Workmen's Compensation Act. As neither the appellant nor her constituted attorney Charles Pareira, the brother of the deceased, were represented, Mr. Rane, a senior counsel, on his own accord offered to act as amicus curiae. The Court expresses deep gratitude to him for his voluntary act of giving assistance to the Court in the best traditions of the profession.
6. Mr. Rane placed reliance on a Division Bench ruling of this Court in Bai Diva Kaluji v. Silver Cotton Mills Ltd. : (1956)ILLJ740Bom in which Chief Justice Chagla had awarded compensation to a workman who after working for eight hours on hot day in a mill died of heart failure. Mr. Rane compared the facts of Kaluji's case (supra) with those of the present one and submitted that the deceased Pareira had to climb two floors to use the urinals which climbing accelerated his death. According to Mr. Rane, the deposition of Jessie Roberts a co-worker of the deceased, shows that the deceased left the showroom for a short while indicating that he must have gone out to the third floor either to ease himself or to have a cup of tea. Though the purpose of the visit of Pareira to the third floor is not known, there is nothing on record to indicate that he went on a 'frolic of his own'.
7. It cannot be gainsaid that a workman during the course of his duty hours can and in the nature of things will have to excuse himself for a while either for a smoke or to visit the conveniences or for a cup of tea. So long as the workman does not go out for his personal work or on a frolic of his own, he would be deemed to be on the premises of the employer, by the notional extension of the term premises'. Consequently, there is no doubt that the accident occurred during the course of employment.
8. However, the pivotal question on which the decision of this case turns is not whether the injury occurred during the course of employment but whether there is a casual connection between the injury and the employment. As observed by Chief Justice Chagla in Laxmibai v. Port Trust, Bombay 1954-I L.L.J. 614, the words 'out of employment' under S. 3 of the Workmen's Compensation Act emphasise that there was some casual connection between the employment and accidental injury and proceeded to say : (at Para 5 on pp. 616) :
'The authorities again are clear 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. The authorities have also gone to this length that if a workman is suffering from a particular disease and as a result of wear and tear of his employment he dies of that disease, no liability would be fixed upon the employer.'
9. In the facts of the case under appeal the worker cannot say that his work as a salesman on the ground floor of the showroom could be called 'a strenuous one'. Even Dr. Sushil Raj who conducted the post-mortem deposed that the work of a salesman is such that man would not die provided his heart is in a good condition. As regards the fact of climbing three storeys Dr. Sushil Raj says that if a person with this state of health climbs up three storeys it may accelerate his death, but that such a person may die in any circumstances. Dr. Raj admitted that he cannot say, had the deceased not climbed three storeys, he would not have died of heart failure.
10. The matter can be viewed from another angle. Can the employer respondent be faulted on the ground that he did not provide 'a safe place of work' The level of managerial responsibility has risen significantly over the years. The employer is under a duty of care ensure that the premises where his men are required to work are reasonably safe. A servant's position is today in several respects more favourable than that of an invitee; for neither is the employer's duty limited to unusual dangers nor is it necessarily discharged by giving warning of the hazard. But however high, the duty is not one of insurance; it demands no more than provisions and maintenance of work premises in as safe a condition as reasonable as reasonable care by a prudent employer can make them.
11. It appears that Commissariat Building does have a lift and on that particular day, for some unknown reasons, the lift was not working. Dr. Raj has deposed that he would not vouchsafe that Pareira would not have died had he not climbed three floors. The argument has been that Pareira's climbing three flights of stairs accelerated his death. Such an argument based on the obligation to provide a 'safe place for work' would not be warranted either by authority or principle, more so when even the Corporation authorities or town planners permit construction of buildings upto four storeys without a lift. There is nothing on record to suggest that the employer knew about the peculiar ailment from which Pareira was suffering. In these circumstances, the employer was not liable to pay compensation as the injury had not arisen out of the employment nor can he be faulted for not providing a safe place of work.
12. In the result, the appeal fails and is dismissed. However, there will be no orders as to costs.