S.C. Manchanda, J.
1. This is a first appeal from the order of the Workmen's Compensation Commissioner, Meerut, rejecting the appellant's claim that he had lost his eye sight in the right eye permanently as a result of the accident which took place on the 4th April 1958.
2. The appellant was an employee in the Modi Lantern Works and was working as a pinion fixing man in the factory. On 4th April 1958 apinion burst and a particle entered the right eye of the appellant and injured the same. He was taken to Dr. Dixit (D.W. 1) who took out the particle from his eye and certified him fit for work under certificate (Ext. D. 2) dated the 16th April 1958. The appellant lost the eye sight of his right eye completely and claimed compensation of Rs. 882/- on the basis of his monthly wages at the rate of Rs. 62.75. nP.
3. The opposite party admits that the appellant is a workman and also that he received the injury in an accident which arose during the course of his employment. It however alleges that the injury was a minor one and the loss of eye sight was due to a disease from which the appellant was already suffering. Further, that the wages of the appellant were only Rs. 55/- per mensem and not Rs. 62.75 nP. and that he was entitled to Rs. 5/- only for the period of temporary disablement of ten days.
4. Three issues were struck and they are:
'(1) Whether the monthly wages of the applicant were Rs. 55/,- or Rs. 62/12/-?
(2) Whether the defect in the right eye of the applicant existed from before the accident?
(3) To what relief, if any, is the applicant entitled?'
Issue No. 1 was decided against the appellant and it was held that his wages were Rs. 55 and not Rs. 62.75 nP. This is a pure finding of fact and cannot be disturbed in this appeal.
5. In respect of issue No. 2 the appellant examined Dr. Bir Chand, Medical Officer and Eye Specialist of P. L. Sharma Hospital, Meerut, whereas the opposite party examined Dr. J. B. Dixit (D. W. 1) and Dr. K. G. Mathur (D. W. 4). Dr. Mathur only examined the appellant on the 14th April 1958 that is, more than ten days after the accident, and his evidence therefore cannot carry much weight. It was he who for the first time gave his opinion that the appellant was suffering from some disease, which he described as 'Irrida cyclit' and that it was this disease which according to him had led to blindness in the right eye and not the injury.
6. It is manifest that it was never the appellant's case that he was suffering from any disease and therefore the burden of proving the existence of any such disease cannot possibly have been placed on him. As it was the opposite party's case that the appellant was suffering from some disease it was for it to establish, (1) that the appellant was suffering from some such disease as alleged and (2) that the accident did not in any way accelerate the blindness. This burden the opposite party has failed to discharge.
7. It is difficult to believe that the Supervisor or the Manager would not have known of the serious disease from which the appellant is said to have been suffering. No evidence has been led to that on or about the date of the accident that is the 4th April 1958, the appellant who was engaged on the work of fitting pinions was on the verge of blindness in his right eye. If there had been any such evidence then it may have been possible for the opposite party to contend that the accident on the 4th April 1958 had nothing to do with the total loss of eye sight in the right eye,and that it was due entirely to the disease from which the appellant was said to be suffering. Dr. J. B. Dixit would have been the best witness on this point, but he has failed to state that on the day when he examined the appellant, that is, on the very day of the accident, he had found the vision in the right eye was almost nil. He does not say anything of the sort.
It is only after the report is received from Dr. Mathur on 14-4-1958 that he begins to form the opinion that the accident had nothing to do with the loss of sight. In the absence of any evidence by the opposite party to contradict the appellant that his vision was normal and was able to see perfectly before the accident it is not unreasonable to conclude that his complete loss of vision in the right eye after the accident was a result thereof, or alteast the injury hastened that disease. That is precisely what the Workmen's Compensation Commissioner has found:
'..... To me it appears that there wassome defect in the eye and perhaps this injury hastened that disease and caused total loss of the vision.'
In these circumstances the only question that can possibly arise in a case of this nature is whether looking at the facts broadly the said finding of the Commissioner can be said to be based on no evidence at all. From what has been stated above it is manifest that the finding given by the Commissioner is not unreasonable and the injury must be deemed to have contributed to or accelerated the ultimate result of blindness in the right eye.
8. The Commissioner, however, fell into an error in posing the question, which according to him had to be answered, in these words:
'The accident is admitted by the parties and it is also admitted that a small particle fell in the eye of the applicant and there was some injury and that Dr. Dixit took out the small particle from the eye of the applicant. These are the admitted facts. The whole thing thus depends on whether the vision of the eye was lost due to this injury or whether it was lost because of some previous disease. This is the only point to be determined.'
That is precisely the point at which he fell into an error. Although he had come to the right conclusion that the accident had accelerated or contributed to the blindness in the right eye, yet as the appellant was suffering from some disease prior to the accident he wrongly took the view that the blindness was not attributable to the accident and, therefore, not entitled to any damages under the Workmen's Compensation Act.
9. The relevant portion of Section 3 of the Workmen's Compensation Act runs:
'(i) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter .....'
Section 4(1)(c) reads:
'Subject to the provisions of this Act the amount of compensation shall be as follows, namely:--
(c) Where a permanent partial disablement results from the injury .....'
There cannot be any doubt and it has been so found by the learned Commissioner, that an accident did take place, that it arose out of and in the course of the employment of the appellant and therefore the only question to be considered was whether it could be said that the permanent partial disablement resulted from the injury. Even if the right eye was diseased, if it is once found that the injury caused by the accident had accelerated or contributed to the permanent partial disablement of the right eye, then such disablement could be deemed to have resulted from the accident. In a case like this, the facts have to be looked at broadly and the necessary inferences drawn on the basis of cause and effect. On the finding arrived at by the learned Commissioner that the accident had contributed to the blindness there was no alternative but to hold that the permanent partial disablement was a result of the accidental injury.
10. The view that I have taken finds support from the decisions of Indian and English Courts. In the case of Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust, AIR 1954 Bom 180.
'where a watchman was employed by the Port Trust and he was already suffering from heart disease but had died of a heart attack while on duty it w-as held that as the deceased had died because of the strain caused by his being on his legs for a certain period of time the employment had accelerated his death and therefore the employer would be liable, as the death had arisen out of the employment of the deceased.'
In the case of Mangalchand v. Mumtaz Begum, AIR 1952 Nag 20 the question that fell for consideration was whether the injury to the chest of a workman by accident had contributed to or accelerated the contraction of tuberculosis and as it was not capable of answer on the material on the record the case was remanded for bringing on record the necessary evidence. The proposition of law, however, was stated in these words: -
'When death or incapacity of a workman is caused by acceleration of disease, already existing due to an accident, the death or incapacity will be deemed to have resulted from accident.....When a workman is suffering from a disease which would prove fatal in a few years and meets an accident, whereby he is injured and dies from the acceleration of the disease by the shock of the accident, death will be considered as the result of the injury caused by the accident.'
Therefore even where a disease is such that it is bound to prove fatal in the course of time, yet if the death is accelerated by the accident, the death is deemed to be attributable to the accident and not to the disease as such.
11. In Clover, Clayton and Co v. Hughes, 1910 AC 242 (244) Lord Loreburn, L. C., in dealing with the case of a workman suffering from serious aneurism who when employed in tightening a nut by a spanner had suddenly fallen down dead from the rupture of the aneurism observed, after referring to the relevant provision of theWorkmen's Compensation Act in England, which is in pari materia with Section 3 of the Indian Act: -
'The injury must be caused by an accident, and the accident must arise out of the employment. We are not concerned here with the course of employment. What then is an 'accident' It has been defined in this House as 'an unlooked for mishap or an untoward event which is not expected or designed.....
The accident must be one 'arising out of the employment. There must be some relation of cause and effect between the employment and the accident, as well as between the accident and the injury.....
This man died from the rupture of aneurism, and 'the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal.'
Again, : 'the aneurism was in such an advanced condition that it might have burst while the man was asleep and, from slight exertion, or strain, would have been sufficient to bring about a rupture.' These are the findings and they bind us.'
On these findings which were that the strain had contributed to the death the order of the Court of Appeal was affirmed.
The House of Lords in Partridge Jones and John Paton, Ltd. v. James (No. 2), 1933 AC 501 again re-affirmed the legal position that the question to be determined in a case under the Workmen's Compensation Act was whether the accident came from the disease alone or whether the employment contributed to it.
12. In the present case the finding of the learned Commissioner, as already observed, is that the accident during the course of the employment accelerated the partial permanent disability in the right eye. On that finding the only conclusion possible was that the disablement was due to the accident and not to the disease alone.
13. For the reasons stated above the order of the Commissioner is set aside and it is held that the appellant is entitled to compensation under the Act from the opposite party to be computed in accordance with the Act on the basis that the wage of the appellant was Rs. 55/- per mensem.
14. The appeal is accordingly allowed withcosts.