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Sarangpur Cotton Manufacturing Company Ltd., No. 1 and anr. Vs. Dev Karsan (Srimathi) and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberFirst Appeal Nos. 645 of 1961 and 57 of 1963
Judge
Reported in1967ACJ252; [1967(14)FLR235]; (1967)0GLR81; (1967)ILLJ186Guj
ActsWorkmen's Compensation Act, 1897 - Sections 3
AppellantSarangpur Cotton Manufacturing Company Ltd., No. 1 and anr.
RespondentDev Karsan (Srimathi) and anr.
Cases ReferredBai Ghisabai Gomsing v. Rustom Jehangir Mills Company
Excerpt:
labour and industrial - compensation - section 3 of workmen's compensation act, 1923 - deceased-workman died suffering from disease likely to cause death if complete rest not taken in course of employment - compensation granted to his legal heirs by trial court - appeal against such order - dependent need not establish that workman was actually working at time of death on work which involved exceptional strain - casual connection established between work of deceased workman and his death - reference by high court not required - evidence proved nature of work which deceased was doing was such as would involve physical exertion - award of compensation rightly given. - - questions such as these when the workman had a pre-existing decease such as heart diseases, pulmonary tuberculosis.....1. these two appeals arise out of a claim for compensation by the legal representatives of a deceased workman who, according to the claimants, died as a result of injury caused by an accident arising out of and in the course of his employment. in the two matters which are the subject-matter of these two appeals, the deceased was suffering from a pre-existing disease and died during the period of working hours and therefore, the question arose as to whether compensation was claimable under s. 3 of the workmen's compensation act and under what circumstances such compensation could be claimed. the question, in other words was, whether the death could be said to have been caused on account of personal injury caused by an accident arising out of and in the course of employment. questions such.....
Judgment:

1. These two appeals arise out of a claim for compensation by the legal representatives of a deceased workman who, according to the claimants, died as a result of injury caused by an accident arising out of and in the course of his employment. In the two matters which are the subject-matter of these two appeals, the deceased was suffering from a pre-existing disease and died during the period of working hours and therefore, the question arose as to whether compensation was claimable under S. 3 of the Workmen's Compensation Act and under what circumstances such compensation could be claimed. The question, in other words was, whether the death could be said to have been caused on account of personal injury caused by an accident arising out of and in the course of employment. Questions such as these when the workman had a pre-existing decease such as heart diseases, pulmonary tuberculosis and died while doing some work during the hours of his duties, have often arisen in the past and have raised points of law as well as of fact on which there have been several pronouncements both by the Courts in England and India. Since both the appeals involve questions relating to the proper construction and effect of S. 3 of the Workmen's Compensation Act, that question being common to both the appeals, can conveniently be disposed of in one judgment and as the facts are different in the two cases, after dealing with the legal points. I shall deal with each appeal separately in this judgment. In order to understand how the question about the construction and effect of S. 3 of the Workmen's Compensation Act has arisen in these two matters, it would be necessary to refer shortly to the facts of each case which have given rise to the present controversy between the parties. First Appeal No. 645 of 1961 is against the order of the Commissioner for Workmen's Compensation, Ahmedabad, in Application No. 69 of 1958 by the widow of Krishan Vashram who was in the employment of the Sarangpur Cotton ., and who was working as a head jobber in the throstle department in the second shift on 25 February, 1958 when he suddenly developed pain in the chest and vomitted blood at about 9-30 p.m. and died in the early morning of the next day. On post mortem examination the cause of death was found to be bilateral pulmonary tuberculosis. First Appeal No. 57 of 1953 is against the order of the Commissioner for Workmen's Compensation, Ahmedabad, in Application No. 74 of 1959 which was made by the widow of one Babaji Becharji who was an employee of New Commercial Mills Company, Ltd., Ahmedabad, and who was working as an oilman in the engineering department of 27 March, 1959 when at about 8-30 a.m. in the second morning shift, he vomitted blood and died. On post mortem examination, it was found that he had died of acute coronary insufficiency and that the duration of the disease was about five to ten years. In both the cases, therefore, the facts disclosed that the cause of death of the workmen was a pre-existing disease and in both the cases, the attack which resulted in the death of the workmen was a pre-existing disease and received during the period when the workmen were on duty. The question that arose in the two cases was whether the occurrence was an accident which arose out of and in the course of the workmen's employment. The arguments of the learned advocates appearing on behalf of the two employers in the two matters were that when death of the workmen occurs during the period of his employment and when the workman was suffering from a pre-existing disease which by itself could have resulted in his death, the employer could not be made liable to pay compensation under the Workmen's Compensation Act unless it was proved that the cause of death of the workman was the strain which the workman had undergone while performing his duties that were assigned to him by the employer. It was urged that unless and until this fact was positively proved, no order for awarding compensation could be made under the Workmen's Compensation Act. It was further urged that when the deceased workman was suffering from a pre-existing disease which would have resulted in his death, it could not be said that the duties that were assigned to the workman had caused strain and that therefore, the workman had died as a result of that strain. It was contended that the fact of a serious pre-existing disease introduced a possibility of death having occurred as a natural consequence of the disease and that so long as such a possibility existed and was not completely ruled out, the employer could not be held to be liable for compensation. It was urged that the Workmen's Compensation Act does not contemplate disease as an accident and no compensation would be payable for death which could be made directly attributable to a disease. It was further urged that in cases when death was due to a disease and normal strain or ordinary work, it could be said that death was due to a disease but not on account of an injury by accident arising out of employment. According to the arguments advanced on behalf of the employers in order to establish a causal connexion between accident and employment, the peril which the employee has to face and by reason of which the accident is caused must not be personal to him and a disease which leads to death on the usual strain or a slight strain must be considered as a peril personal to the employee and not incidental to his employment. Such factors as pre-existing diseases affecting vital organs which must result in death without strain or such factors as old age which bring in diseases with advance in years cannot constitute a causal connexion between accident and employment and it was further contended that even if it was held that a pre-existing disease could not be considered to rule out a case under S. 3 for compensation, there must be positive evidence to show that death was not caused by disease but by strain or in any event, it must be clearly proved that death was accelerated by strain. The learned advocates of the employers also laid stress on the argument that the burden of proof in all such cases was heavily on the claimants to prove that death was not due to disease and that it was accelerated by such strain as would necessarily result in death. These are in brief the points that were advanced on behalf of the employers on the question as to how claims under S. 3 for compensation should be approached and decided and it is in the light of these points raised in the course of the arguments that the authorities that were cited at the hearing will be discussed.

Section 3 of the Workmen's Compensation Act is as under :

'(1) 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 :

Provided that the employer shall not be so liable -

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding seven days;

(b) in respect of any injury, not resulting in death, caused by an accident which is directly attributable to -

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given or to a rule expressly framed, for the purpose of securing the safety of workmen, or

(iii) the wilful removal or dis-regard by the workman of any safety-guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.

(2) If a workman employed in any employment specified in Part A of Sch. III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of less than six months in any employment specified in Part B of Sch. III, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the employer proves the contrary, the accident shall be deemed to have arisen out of and in the course of the employment.

Explanation. - For the purposes of this sub-section a period of service shall be deemed to be continuous which has not included a period of service under any other employer in the same kind of employment.

(3) The State Government, after giving, by notification in the official gazette not less than three months' notice of its intention so to do, may by a like notification, add any description of employment to the employments specified in Sch. III, and shall specify in the case of the employments so added the diseases which within the State shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and the provisions of Sub-section (2) shall thereupon apply within the State as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.

(4) Save as provided by Sub-secs. (2) and (3) no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.

(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury -

(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or

(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.'

2. This section has in parallel in S. 1 of the English Workmen's Compensation Act, 1925, which has been repealed. It would be necessary to set out the provisions of the section of the English Act because many of the authorities that were referred to have been pronounced on the construction and effect of this section. The section reads as under :

'Liability of employers to workmen for injuries -

(1) If in any employment personal injury by accident arising and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the provisions hereinafter contained :

Provided that -

(a) the employer shall not be liable under this Act in respect of any injury which does not disable the workman for a period of at least three days from earning full wages at the work at which he was employed;

(b) if it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed.

(2) For the purposes of this Act, an accident resulting in the death or serious and permanent disablement of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any order given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the workman for the purposes of and in connexion with his employer's trade or business.

(3) This Act shall apply, notwithstanding any contract to the contrary, whether made before or after the commencement of this Act, except that where under this Act the provisions of a scheme are substituted for the provisions of this Act, the employer shall be liable only in accordance with the scheme.'

3. It would be seen that the Workmen's Compensation Act creates a special type of liability as it makes an employer liable to pay compensation at a fixed rate to his employee who is rendered incapable of work by an accident arising out of and in the course of employment. The purpose of the Act does not appear to give solatium to the relative of an employee who has been fatally injured, but something to replace the actual loss which the relative has suffered not does it appear that the section was intended to award damages for negligence on the part of the employer. As the words of the section indicate, the liability of the employer for compensation is created if a personal injury is caused to a workman by accident arising out of and in the course of his employment. What S. 3 of the Act requires is :

(1) that a personal injury must be caused to the workman;

(2) that injury must have been caused by accident; and

(3) that accident must have arisen out of and in the course of employment.

4. The word 'accident' occurring in the Workmen's Compensation Act has been the subject-matter of judicial discussion in Fenton v. Thorley & Co., Ltd. [1903 A.C. 443] in which it was held that in the Workmen's Compensation Act, 1897, the word 'accident' was used in the popular and ordinary sense, and meant a mishap or untoward event not expected or designed. At p. 453, Lord Lindley has observed that :

'The word 'accident' is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unitended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word 'accident' is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events.'

At p. 454, Lord Lindley has made some observations on the meaning of 'personal injury by accident' in the following words :

'What is meant by 'personal injury by accident' Mr. Powell, in his very able argument contended that there must be, first, a personal injury; second, that there must be an accident causing it; third, that such accident must be the proximate cause of the injury, and that nothing more remote than the proximate cause can be properly taken into account. My Lords, I cannot accede to this contention.

Assuming that there must be something unintended and unexpected besides the personal injury sustained, or, in other words, assuming that there must be a personal injury and an accident causing it, I cannot agree with Mr. Powell that this statute ought to be construed as if it were a policy of insurance against accidents.

In an action on a policy the causa proxima is alone considered in ascertaining the cause of loss; but in cases of other contracts and in questions of tort the causa causans is by no means disregarded. This was pointed out by Willes, J., in Grill v. General Iron Screw Colliery Company and is strikingly illustrated by Siordet v. Hall and numerous other cases of a similar kind. Siordet v. Hall was an action against a steamship owner for injury to cargo caused by water escaping from a pipe which had been burst by a sharp frost. The defence was that the accident was an act of God for which the defendant was not responsible. The Judge, however, told the jury that if water had been unnecessarily placed in the boiler, or, considering the season of the year, improperly left there without heat to prevent the action of the frost upon the pipe, the mischief was not occasioned by the act of God, but by gross negligence. The jury found for the plaintiff. A new trial was applied for on the ground of misdirection. The court held that the loss was attributable to negligence and was not caused by the act of God so as to exonerate the defendant from liability. In other words, attention was paid to the circumstances under which the proximate cause produced the damage complained of.

The rule that in contracts of insurance the proximate cause of loss can alone be regarded is carried so far that if it were rigidly applied to this Act of Parliament, its evident object would in many cases be clearly defeated. No doubt the rupture in this case was the result of an effort voluntarily and strenuously made, and it may be that a policy of insurance against accidents might be so worded as not to cover an injury so caused. But if we look further and inquire what called forth this unusual effort, we find it was an unexpected difficulty in moving the wheel of the machine, and that this difficulty arose from an unobserved leakage which caused the material in the machine to choke the mechanism. The machine was accidentally put out of order. It had worked properly until it was stopped by an accident. It is not straining language but using it in its ordinary sense to describe the personal injury as caused by an accident. The personal injury was the rupture; the cause of it was the unintended and unexpected resistance of the wheel to the force applied to it. Such a case appears to me to fall within the Act.'

5. The next case of importance to which reference may be made is Wicks v. Dowell & Co., Ltd. [(1905) 2 K.B. 225]. In that case, the applicant was employed in unloading coal by means of a hydraulic crane from a ship lying at the wharf. His duty was to stand on a wooden stage close to the edge of a hatchway, the stage being so constructed as to enable him to look down into the hold, and while standing on the stage he had to regulate the descent of the bucket into, and its ascent out of, the hold by means of a long pole, and also to give the necessary signals to the man who was working the crane. While thus engaged, he was seized with an epileptic fit and fell through the hatchway into the hold, and sustained very serious injuries. He had had epileptic fits on previous occasions. The county Court Judge, on these facts, held that the accident was due to the epileptic fit and did not arise out of and in the course of the employment and he consequently refused to make an award in favour of the applicants. While allowing the appeal of the applicant, the Court of Appeal held that in such cases, regard must be had to the proximate cause of the accident resulting in the injury, which was to be found in the necessary proximity of the workmen to the hatchway and that the accident, therefore, arose out of as well as in the course of his employment. In that appeal it was contended on behalf of the employers that the original cause of the applicant's fall was the epileptic fit with which he was seized and that the cause was one which the man himself carried about with him and that the damages which he sustained did not arise out of and in the course of his employment, but arose out of the idiopathic condition of the workman at the time. It was observed by Collins that the Court was precluded by authority from giving effect to such an argument. It was suggested in the arguments in the appeal that if the occurrence was analyzed, it would be seen that the accident was caused by the idiopathic disease from which the man was suffering and that therefore, the accident did not arise out of his employment and it was observed that :

'at that point that authorities come in, to the effect that, although the cause of the fall was a fit, the cause of the injuries was the fall itself, and they are direct authorities that the injury in the present case was caused by an accident.'

On the question whether the accident could be said to have arisen out of the applicant's employment, it was observed that :

'when we get rid of the confusion caused by the fact that the fall was originally caused by the fit and the confusion involved in not dissociating the injury and its actual physical cause from the more remote cause, that is to say, from the fit, the difficulty arising from the words 'out of the employment' is removed.'

6. It was observed that an accident did not cease to be such because its remote cause was idiopathic condition of the injured man and that we must dissociate that idiopathic condition from the other facts and remember that the employee was obliged to run the risk by the very nature of his employment and that the dangerous fall was brought about by the conditions of that employment. Such factors as disease and old age suggested to be the cause of the injury have been referred to in the observations of Cozen-Hardy, L.J., at p. 331 as under :

'If I could adopt the view that has been pressed upon us, that the employer is not liable for the remote consequences of a disability which the workman brings with him to his work, I should come to a different conclusion; but I think the truer view is that a man always brings some disability with him; it may be a disability arising from age; it may be of some other nature. A workman who is put in a dangerous position in order to do his work is more liable to an accident by reason of the disability which he brings with him than he would otherwise be. Again, an old man is inherently more likely to meet with an accident than a young one, but an employer could not excuse himself on the ground of the man's age. The same consideration applies to a tendency to illness or to a fit, and if a man with such a tendency is told to go to work in a dangerous position and there meets with an accident, the accident nonetheless arises out of his employment because its remote cause is to be found in his own physical condition.'

7. It may be mentioned that in the case of Lander v. British United Shoe Machinery Company, Ltd. [(1933) 102 L.J.K.B. 768], the workman, a known epileptic, had a fit while crossing a hard floor to the lavatory and fractured his skull on the hard floor. The floor was held to be not in itself dangerous to normal people. On these facts, the Court of Appeal reversed the county Court Judge holding that the workman could not recover, distinguishing Wicks v. Dowell & Co., Ltd. [(1905) 2 K.B. 225] (vide supra), on the ground that the workman in that case, also an epileptic, was required to stand at a place which was dangerous in itself, namely, an open hatchway down which he fell as a result of a fit. It may be mentioned here that the case of Lander v. British United Shoe Machinery Company, Ltd. (vide supra) was not followed subsequently by the Court of Appeal in Wilson v. Chatterton [(1946) 1 All E.L.R. 431], to which reference will be made later.

8. Reference may now be made to the case of Clover, Clavton & Co., Ltd. v. Hughes [(1910) 2 A.C. 242]. This decision has been referred to in subsequent cases and therefore, requires to be referred to in some detail.

9. In New Rajpur Mills Company, Ltd., Ahmedabad v. Shantaben Thakore (Appeal No. 1079 of 1960), Raju, J., has referred to some of the observations of the minority view expressed in this case, i.e., Clover, Clavton & Co., Ltd. v. Hughes (vide supra) by Lord Shaw. The facts of that case were that a workman suffering from aneurism in so advanced a state of disease that it might have burst at any time, was tightening a nut with a spanner, when the strain, quite ordinary in the ordinary work, ruptured the aneurism and died. The county Court judge found upon conflicting evidence that 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. This decision was affirmed by the Court of Appeal which was confirmed by the House of Lords. It was held by the House of Lords that there was evidence to support the finding and that is was a case of personal injury by accident arising out of and in the course of the employment within the Workmen's Compensation Act. While speaking on what was an 'accident,' Lord Loreburn, L.C., stated that the word 'accident' had been defined by the House of Lords as 'an unlooked for mishap or an untoward event, which is not expected or designed,' and the all the Lords who took part in the decision of Fenton v. Thorley & Co., Ltd. [(1903) A.C. 443] agreed in substance with this definition in Lord Macnaghten's speech. As regards the requirement that the accident must be one arising out of the employment, it was stated that there must be some relation of cause and effect between the employment and the accident, as well as between the accident and the injury and what was stated by Lord Lindley in Fenton v. Thorley & Co., Ltd. (vide supra) was relied upon. At p. 245 it was observed that :

'My Lords, I think some of our difficulties in applying the Act are due to this. Courts of law have frequently been obliged to consider, especially in actions on policies of insurance, what is to be regarded as the cause of some particular event. In one sense every event is preceded by many causes. There are the causa proxima, the causa causans and the causa sine qua non. I will not pursue scholastic theories of causation. The causa proxima is alone considered in actions on a policy, as a general rule for cases under the section now under discussion, for the reason explained by Lord Lindley in Fenton v. Thorley & Co., Ltd. (vide supra). It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened, and if the accident is one of contributing causes without which the injury which actually followed would not have followed.'

10. One of the arguments that was advanced in that case was that there might have been an injury by accident caused to the workmen but that would not establish that the accident was one arising out of the employment. The question that arose was that when the workman's condition was such that he might have died in his sleep and the mere tightening the rut with no more strain than ordinary in such work caused the accident, could it be said that the accident was one 'arising out of' the employment. Lord Loreburn at p. 246 observed that he did not think that any importance should be attached to the fact that there was no strain or exertion out of the ordinary and in this connexion, he observed that :

'I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the county Court Judge that the strain in fact caused the rupture, meaning, no doubt, that if it had not been for the strain the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade. Nor do I think was should attach any importance to the fact that this man's health was as described. If the state of his health had to be considered, there must be some standard of health, varying I suppose, with men of different ages. An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health.

It was urged that in such an event, if the Act admits of a claim, every one whose disease kills him while he is at work would be entitled to compensation. But the reply that, was given was that in each case, the arbitrator would consider whether in substance, as far as he could judges on such a matter, the accident came from the disease alone, so that whatever the man had been doing lit would probably have come all the same, or whether the employment contributed to it. In the words of Lord Loreburn, the question would be : Did the workmen die from the disease alone or from the disease and employment taken together, looking at it broadly and free from over-nice conjectures It appears that on the real question whether the accident arose out of the employment of the workman, the evidence before the county Court Judge in that case was conflicting. But the learned Judge held that 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 and on such a finding, Lord Macnaghten observed at p. 249 that the fact that the man's condition predisposed him to such an accident was immaterial. Lord Collins in his observations was of the view that the case was concluded by the authority of Fenton v. Thorley & Co., Ltd. [1903 A. C. 443] (vide supra) in which case one of the cases that were overruled, I was commented upon by Lord Macnaghten, i.e., Hansey v. While [(1900) 1 Q.B. 481] Lord Collins observed at p. 255 that :

'One of those specially commented upon by Lord Macnaghten Hansey v. While, was, in essentials, identical with this case. The workmen, who was in an unsound physical condition, ruptured himself in attempting to turn a wheel, which proved too stiff for his physical powers. A post mortem examination disclosed the fact that he had been suffering from chronic inflammation and congestion of the intestines, and to this, as the antecedent cause, one of the medical witnesses attributed the fatal result of the strain. The county Court Judge had found as a fact that the death was the result of chronic disease, and held :

'that something beyond the mere fact that a long-standing disease had suddenly assumed a fatal form, in consequence of the deceased doing his ordinary hard work in the usual way, was necessary in order to constitute an accident within the meaning of the Act.' The Court of Appeal had affirmed this view.

Lord Macnaghten, in overruling this and a group of other cases decided on the same lines by the Court of Appeal, says :

'If a man, in lifting a weight or trying to moves something not easily moved, were to strain a muscle, or rick his back, or rupture himself, the mishap, in ordinary parlance, would be described as an accident. Anybody would say that the man had met with an accident in lifting a weight or trying to move something too heavy for him.' He then goes on to express his entire agreement with the case of Stewart v. Wilsons and Clyde Coal Company, Ltd., and singles out for special approval a passage in the judgment of Lord McLaren :

'If a workman in the reasonable performance of his duties, sustains a physiological injury as a result of the work he is engaged in ... this is accidental injury in the sense of the statute.' Lord Lindley likewise expresses his approval on the same decision.'

11. The observations of Lord Collins thus supports the view that if a workman, in the reasonable performance of his duties, sustained a physiological injury as the result of the work he was engaged in, this would be accidental injury in the sense of the Workmen's Compensation Act.

12. Another case in which death could not be made attributable to any sudden and unusual strain having been put on the workman is the case of McFarlane v. Hutton Brothers [1926 All E.L. R. 246]. The deceased workman was employed as a stevedore and his was working in the after-hold of a ship, when iron ore was being unloaded by being lifted out of the hold in a big tub which was lowered into the hold. The tub was carried on a chain and had to be deflected from the perpendicular in order to avoid the top of the tunnel which covered the shaft of the propellers, and to be lowered right down to the iron ore in the hold. The deceased was working with some colleagues in doing this, and the work was begun at an early hour in the morning and in the ordinary course. The deceased never ailed and he worked sometimes three shifts and sometimes five, and he never complained of his work, but from subsequent events it was found that he was suffering from disease of the coronary arteries of the heart which sooner or later would cause death. The deceased while he was engaged in pushing or pulling the tub into the right position, suddenly felt ill, ceased work for a moment and tried to resume the work when again he felt ill and stopped. He went up a ladder to the top of the tunnel and there he sat obviously in distress and soon thereafter he died. Proceedings were brought by his widow as a dependant claiming compensation on the ground that he died from an accident arising out of and in the course of his employment. The learned county Court Judge came to the conclusion, applying the principles in Clover, Clavton & Co., Ltd. v. Hughes [(1910) 2 A.C. 212] (vide supra) and relying on the medical evidence, that the workman died from the disease alone. There was no sudden strain and the county Court Judge said that the workman might have died of the disease at any moment. On appeal it was held that the death could be due to an accident, even though it was not attributable to any sudden, unusual strain having been put on the workman and that therefore, the widow was entitled to an award of compensation. In his judgment, Lord Hanworth observed that the county Court Judge had been looking for some evidence which vis-a-vis a sudden strain would justify his finding that there was an accident and that the country Court Judge thought that in the absence of a sudden strain which connotes an accident, there was no accident within the meaning of the Workmen's Compensation Act. It was observed that in such an approach, the county court Judge had misdirected himself. Reference was made to the speech of Lord Macnaghten in Fenton v. Thorley (vide supra) as an authority which had always been held to be a leading authority in such class of cases. It was said that the case of Fenton v. Thorley (vide supra) decided that when one talked of an accident within the meaning of the Workman's Compensation Act, one was not speaking of something that was fortuitous or that had arisen from exterior and external causes and the words of Lord McLaren referred to in the observations of Lord Collins in Clover, Clavton & Co., Ltd. v. Hughes already referred to above, that :

'If a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in . . . 'this is accidental injury in the sense of the statute'.'

13. were again referred to by Lord Hanworth and it was observed that it would be wrong as the learned county Court Judge appeared to have done, to look for an accident in the form of a sudden strain exercised on the workman, something which was more than ordinarily borne by him, or an application of pressure made at a moment to overcome some particular resistance. It was further observed that the true fact appeared to be that if there was an unexpected personal injury arising from some physiological condition set up in the course of the work, that might be described as an accident even although there was at the moment nothing unusual or particular which sets it up. It also appears that Lord Hanworth referred to with the following quotations made in Clover, Clavton & Co., Ltd. v. Hughes (vide supra) :

'A workman, an suffering from an advanced aneurism of the aorta was doing his work in the ordinary way by tightening a nut with a spanner. This ordinary strain caused a rupture of the aneurism, resulting in death.

* * * In other words (we may ask ourselves this question) did he die from the disease alone, or from the disease and employment taken together, looking at it broadly Looking at it broadly, I say, and free from over-nice conjectures : Was it the disease that did it or did the work he was doing help in any material degree ?'

14. These observations of Lord Loreburn were explained by stating that :

'That seems to indicate that one has to ask oneself two questions : Did the man die from the disease alone or did the work which he was doing help in a material degree in the sense that it brought on the mishap which, it may be, would not have happened if he had not had the diseased condition, but owing to the diseased condition and the work that he was doing it was set in motion

Another case to which reference was made in McFarlane v. Hutton Brothers (vide supra) was the case of M' Ardle v. Swansea Harbour Trust [(1915) 85 L.J.K.B. 733]. That was a case where a workman, fifty years of age died from an advanced aneurism of the aorta while working and exercising an ordinary strain at work. Lord Cozens-Hardy said, as it appears from the quotation at p. 248 in the case of McFarlane v. Hutton Brothers (vide supra) : 'I never saw a case in which death was so clearly arising out of the employment in the sense of being physically connected with it, because he died in the very act of doing the work which he was employed to do.'

15. Pickford, L.J., while referring to the finding of the county Court Judge that the death was the result of long-standing heart disease, which reached its natural and ordinary fatal result while he was doing his ordinary day's work, without the death having been hastened by the light work the deceased was engaged on at the time, deceased was engaged on at the time, observed, as it appears from the quotation occurring at p. 249 in the case of McFarlane v. Hutton Brothers (vide supra) that the county Court Judge was wrong in his impression that in order to constitute an accident, in such circumstances, the work must be something exceptional, and of the harder kind of his work and that if it were only the ordinary kind of work, and the lightest part of his work, then that was not an accident. On a review of the authorities, Lord Hanworth in McFarlane v. Hutton Brothers (vide supra) at p. 249 observed that :

'Supplementing the speech of Lord Macnaghten in Fenton v. Thorley & Co., Ltd., by the illustrations given in Clover, Clavton & Co., Ltd. v. Hughes and M'Ardle v. Swansea Harbour Trust, it appears to me quite plain that a man may suffer an accident and be entitled to recover in respect of the injury caused by the accident within the meaning of the Workmen's Compensation Act, although the strain which sets up and puts in motion the cause of his death may arise in the ordinary exercise of his work which he is em played to do and is not of a special or monetary character.'

16. Another case in this context is the case of Patridge Jones and John Paton, Ltd. v. Jamas [1933 All E.L.R. 316]. That was a case in which at the time of his death, and for some time before, the workman was and has been suffering from disease of the coronary arteries brought on by an attack of syphilis, and his state was such that, although he might die at any time without engaging in any act requiring exertion, every sort of physical labour was dangerous and likely to leas to heart failure. On the day of his death he was engaged in the galvanizing department of the employers and while working suffered from an attack and died. The county Court Judge held that the physical exertion which the workman went through while doing work had accelerated his death. The argument that was advanced before the House of Lords was that in order to establish that a workman was entitled to the benefit of the Workmen's Compensation Act, it was necessary to show that he had suffered an injury as a result of some definite thing that he had done in the course of his work. It seems to have been urged that if in the normal course of his work, owing to the imperfect condition of his arteries, or whatever other internal organ may have been diseased, the workmen breaks down and dies, that would not be sufficient although the work contributed to the death unless a specific injury resulting from a specific act could be pointed out. But the reply that was given to this argument was that whatever may have been said about the merit of that argument some years ago, it was impossible for it to be effectively advanced in view of the decision in Clover, Clavton & Co., Ltd. v. Hughes (vide supra).

17. While dealing with cases of this nature, it is possible to come across cases in which the evidence would be equally balanced either for or against accident and the question would then arise whether to come to a conclusion in favour of the workman would not merely be the result of a conjecture or a guess. This aspect of the case also would require to be examined because lit would be argued that the evidence as to the cause of death was equally consistent with an accident and with no accident and that the onus of proving that it was due to an accident rested on the applicants and that the onus had not been discharged by them. Such a case arose in the case of Barnabes v. Bersham Colliery Company [(1910) 3 B.W.C.C. 216]. The facts of that case which have been referred to in the case of Whittle v. Ebbw Vale Steel, Iron and Coal Company [(1936) 2 All E.L.R. 1221.] were that a collier died of apoplexy during working hours in a mine. The majority of the doctors said that his arteries were in a very diseased condition, and that apoplexy might have come upon him when asleep in bed, or when walking about, or when over-exerting himself. The collier's work on that day was to build a 'pack,' but there was no evidence that apoplexy came upon him when he was incurring a strain. On these facts, it was held that as the evidence as to the cause of death, was equally consistent with an accident and with no accident, and the onus of proving that it was due to accident rested on the applicants and such onus had not been discharged the applicants could not recover. The case of Barnabes v. Bersham Colliery Company (vide supra) seems to have been followed in some of the subsequent cases which have been discussed in detail in the judgment of Slesser, L.J. in Whittle v. Ebbw Vale, etc., Company [(1936) 2 All E.L.R. 1221] (vide supra). In this case, a difficulty was felt in reconciling the case of Barnabes v. Bersham Colliery Company (vide supra) with the later cases in the House of Lords and as indicated in the opinion of Coddard, J., those cases which follow the case to Barnabes v. Bersham Colliery Company (vide supra) must be deemed to have been materially modified in the light of the decision in Patridge Jones v. Jamas [1933 All E.L.R. 316] (vide supra).

18. The case of Wilson v. Chatterton [1946 All E.L.R. 431] which has been referred to earlier while discussing the case of Wicks v. Dowell & Co. [(1905) 2 K.B. 225] (vide supra) was a case of a workman, a known epileptic, while working in his employer's field, fell face downwards, in a fit, at a place where there was a rut half filled with water and was drowned. Death was due to asphyxia and the place at which he was working was dangerous to him, though there would have been no danger to a normally healthy person. The country Court Judge made his award under the Workmen's Compensation Act, 1925, in favour of the employer, holding that on the facts as found by him the case was covered by Lander v. British United Shoe Machinery Company, Ltd. [(1933) 102 L.J.K.B. 768] (vide supra). The Court of Appeal held :

(1) that Lander case was inconsistent with the general principles laid down by the House of Lords and with other decisions of the Court of Appeals;

(2) that unless a weakness or illness was the sole cause of an accidental injury to, or death of, a workman, the employer was liable, and

(3) that the employer cannot escape liability by showing that some factor such as disease was a pre-disposing or even contributing cause of the injury and that he must show that it was the sole cause as had been said frequently in decided cases.

19. Thus, the case of Lander v. British United Shoe Machinery Company, Ltd., (vide supra) was not followed.

20. This is the State of law as found from the authorities that have been referred to at the hearing and the main principles that emerge from the recent decisions have been substantially followed by our Courts. Fortunately, there are decisions of the Bombay High Court on such cases from which it would be possible to deduce principles which should be followed in deciding such claim for compensation. In Appeal No. 141 of 1950, General Manager, New Kaiser-i-Hind Spinning and Weaving Company, Ltd., Bombay v. Bai Sahabai (unreported) the facts were that the deceased workman was employed by the appellant in doing the work of bringing an empty box to the counter which was high up to the shoulder and to carry back the box when filled with bobbins. The deceased had to cover a distance in the room of about 40 to 50 yards with the box every time he took the empty box to the counter and brought the box filled with bobbins. The deceased was in the night shift on 25 November 1948 and while he was lifting the boxes in the weaving department, he accidently collapsed due to exhaustion of work and died on the very spot. There was medical evidence on the record of the case which showed that in the doctor's opinion the cause of death was coronary thrombosis. The doctor, however, stated that there was an old disease relating to the blood vessel of the heart and this disease must be old at least six months prior to the accident. The doctor was cross-examined and in the cross-examination, he stated that if the deceased had an attack of pain in the heart region, this lifting of box containing bobbins was a strain which would hasten his death. Besides the medical evidence, there was no other evidence on the record of the case and it was urged on behalf of the employer that this evidence showed that death was equally consistent with disease as with accident and therefore, the claim for compensation could not be allowed. In this context it was observed that :

'The difficulty, however, in the way of the appellant is that it is not as if the cause of death may by either disease or accident. The doctor goes to say that if the deceased had an attack of pain in the heart region, the lifting of the box containing bobbins would be a strain which would hasten his death. It, therefore follows that the disease was not the only cause of death, but the death was accelerated or hastened by the strain which was undergone by the deceased in the course of his employment with the appellant. In the footnote under the caption 'Pre-existing condition' at p. 866 of Halsbury's Laws of England, Hailsham Edn., Vol. 34, it is stated that if the medical evidence accepted by the Court establishes that the work which the workman was doing was likely to bring about or accelerate the manifestation of the disease, the claim will succeed. This is really the position as it obtained in this case having regard to the evidence of the doctor. The pre-existing condition of coronary thrombosis was there, but the medical evidence which has been accepted by the Court establishes that the work which the deceased workman was doing was likely to bring about or accelerate the manifestation of the disease and lead to his death. This being the position, we do not find anything on the record of the case which would justify us in interfering with the decision of the learned Commissioner for Workmen's Compensation.'

21. This case thus decides that compensation could be given in cases where though there was a pre-existing disease, the disease was not the only cause of death and that where the pre-existing condition was there, but the evidence established that the work which the deceased workman was doing was likely to bring about or accelerate the manifestation of the disease and lead to his death, the claim for compensation would succeed. This judgment is by a Division Bench of the High Court of Bombay consisting of Bhagwati and Dixit, JJ. The second case is Raipur . v. Srimathi Chotti Chantali - Appeal No. 2 of 1952 decided by Bavdekar and Dixit, JJ. (unreported). In that case the facts were that the deceased workman was suffering from coronary thrombosis and widespread degeneration of the tissues of the heart, called by the doctor in his evidence 'altheroma'. On 8 September, 1950 he went to work as usual, did some work and then went to answer a call of nature to the latrine which happened to be on a higher level than the surrounding area. While he was coming down from the steps of the latrine, he appeared to have had a heart attack and he fell down. He was removed to the mill hospital where he die and the post-mortem examination revealed that death was due to coronary occlusion. The question that fell to be considered was whether the work which the deceased workman was doing on the morning contributed to his death. What exactly he did on that morning was not clear from the evidence, but it was clear that his work was that of a sweeper and the work was not very heavy, but at the same time one could not say that it was light either. In these circumstances, it was observed that in the case of a workman who was suffering already from coronary thrombosis it would be perfectly reasonable to come to the conclusion that it was the work which he did on that morning that contributed to his death. The argument made on behalf of the employer that it was necessary for the workman to prove that the death was due to an accident arising out of and in the course of his employment was conceded and this might show that the initial burden was placed on the claimants. But looking to the fact that the deceased was suffering from a heart disease and that he was doing work which would not altogether be light, it was observed that it was open to the learned Commissioner for Workmen's Compensation to come to the conclusion that as a matter of fact the deceased died out of an accident arising out of and in the course of his employment because the work which he did that morning contributed to death. It was also argued in that case that before it could be said that a workman was entitle to compensation it must be shown that the work which the deceased workman was doing was such as was likely to accelerate his death, and in this context, it was observed that there were two ways in which a workman's dependant could show that he was entitled to compensation, one by showing number of factors which contributed to the death and the second if that could not be done, by showing that the work which the workman was expected to do was likely to accelerate death. The relevant passage on this question may be quoted from the judgment :

'The learned advocate who appears for the appellant says that a passage in the Halsbury shows that before it can be said that a workman is entitled to compensation it must be shown that the work which the deceased workman was doing was such as was likely to accelerate his death. Now, there are two ways in which a workman's dependant can show that he is entitled to compensation one by showing number of factors which contributed to the death, and the second, if that cannot be done, is that mentioned in the Halsbury, viz., by showing that the work which the workman was expected to do was likely to accelerate death. The learned Commissioner for Workmen's Compensation chose in this case the first way. But we do not think that he could have found any difficulty even if he proceeded to consider the question the second way, i.e., the work which the workman was expected to do was likely to accelerate death. As we have already mentioned, we know the condition of the deceased's heart. We also know that the work which he was expected to do was not altogether light. It is true that it would have been better if the appellant or the respondent had asked the doctor as to whether the work which the deceased workman was doing was such as was likely to contribute to his death. But we are not prepared to take the passing from Halsbury as an authority for the proposition that the fact that the work which the workman was doing was likely to accelerate death can be proved only by the evidence of a doctor and not by any other evidence.'

22. The approach that was adopted by the Bombay High Court in Appeal No. 377 of 1952 (unreported), Lalbhai Trikamlal Mills, Ltd., Railwaypura v. Mariam Ratna, was that if there was evidence to show that the work done by the workman must have naturally caused some strain, it would not be an unreasonable inference to draw that it was that extra strain that caused the death of the workman. In that case, one of the duties that was assigned to the deceased workman was to carry bobbins from the roving department to the ring spinning machine. While carrying about 25 to 30 bobbins, the workman vomitted blood, walked for a short distance and vomitted more blood and died. The post mortem examination revealed that death was due to shock from haemorrhage from cavities due to bilateral pulmonary tuberculosis. The Division Bench of the Bombay High Court consisting of Bavdekar and Chainani, JJ., decided that compensation could be granted even if there was a pre-existing disease such as bilateral pulmonory tuberculosis and although the medical evidence showed that the disease from which the workman was suffering was such that even the slightest extra strain might have caused haemoptysis and that if such a person vomitted blood twice or thrice in the course of a few minutes, it would cause his death. That case would also show that if there was evidence to show that the work done by the workman must naturally have caused some strain, it would be permissible to the Commissioner in such cases to award compensation. In other words, there should be some evidence to show that the deceased workman did some work which might have caused some strain and from which reasonable inference could be drawn that such strain accelerated the death.

23. Then in 1955 a Division Bench of the High Court of Bombay consisting of Chagla, C.J., and Dixit, J., dealt with a similar question in Appeal No. 409 of 1955 in the case of Bai Ghisabai Gomsing v. Rustom Jehangir Mills Company, Ltd., which is in 1956 - II L.L.J. 151. The facts of that case were that on 2 August, 1954 while the workman was working in the mills he had pain in the chest at about 8 a.m., a stimulant was given to him and he collapsed at 8-45 a.m. and he die while he was being taken to the hospital. The medical evidence showed that the workman died of right-sided heart failure and that the heart disease must have been about ten years old. The doctor also deposed to the fact that exertion had adverse effect in cases of heart failure. The Commissioner took the view that on the evidence, he could not hold that the deceased worked on 2 August 1954 and therefore, according to him, no strain was caused to him by any work done by him on that day. In the opinion of the learned Judges, such a finding by the Commissioner that the evidence did not reveal that the deceased had worked on that day, did not in any way support the contention of the mills and that no compensation was payable in such cases. In the opinion of the learned Judges what had got to be considered was whether the employment of the deceased had any causal connexion with the ultimate death or to put in a different language, whether that employment in any way accelerated his death. It was observed that it was not necessary in law that at the time of the death the employee must actually be doing work which caused strain, and that if it was established that by regularly doing the work which he was called upon to do by his master, his employment caused strain which accelerated his death, sufficient causal connexion was established, and in law the injury would be deemed to have arisen out of employment. It was also observed that if the mills contested the evidence as to the nature of the work, nothing was easier for the mills than to have produced the muster-roll or any other unimpeachable evidence to prove the exact type of work that the deceased was doing. It would be proper here to reproduce the observations that have been made in the judgment of the learned Chief Justice in 1956 - II L.L.J. 151 at 152 :

'On these facts it seems to us clear that the workman died as a result of accident which in this case was the sudden collapse in the course of his employment and the only question which has got to be considered is whether the accident that caused the death was out of his employment. The Commissioner has taken the view that on the evidence he could not hold that the deceased worked on 2 August 1954 and therefore, according to him, no strain was caused by any work done by him on that day. The evidence on this point is slightly conflicting. Two witnesses have been called by the appellant who were working at the same time as the deceased and they have both deposed to the fact that he worked from 8 a.m. up to 8-45 a.m. when he collapsed. As against this, the mills called their compounder and he deposed to the fact that it was he who gave a stimulant to the deceased and applied ointment to his chest when he was sent for and this was at about 8 a.m. He was against sent for after half-an-hour and at that time he found the deceased lying on the floor of the godown. The compounder said that even when he went there for the first time he found the deceased sitting on the ground. The learned Commissioner has preferred the evidence of the compounder to the evidence of the two other witnesses and as it involves the appreciation of evidence, we must accept that finding of fact. But in our opinion that finding does not in any way support the contention of the mills. What has got to be considered is whether the employment of the deceased had any causal connexion with the ultimate death or to put in a different language, whether that employment in any way accelerated his death. It is not necessary in law that at the time of the death the employee must actually be doing work which causes strain. If it is established that by regularly doing the work which he is called upon to do by his master his employment causes strain which accelerated his death, sufficient causal connexion is established and in law the injury would be deemed to have arisen out of employment. In this case we must look at the nature of the work that the workman was doing. Sri Patel on behalf of the mills says that he was a jobber and that work would only involve supervision and that could not cause any strain. Now, there is the evidence of these two witnesses which has not been contradicted and that his work consisted in preparing bales of cloth, taking the bales to the godown in a lorry, stocking the bales in the godown and also removing the bales from the godown when delivery was to be given. Therefore, here we have a man who has been suffering from heart disease for ten years, lifting and removing heavy bales belonging to the mills. It cannot be suggested that the work of that character did not cause strain which would accelerate his death. Sri Patel has relied on the evidence of one of the witnesses who has described the deceased as hid jobber. But even a jobber may have to do heavy work and the evidence seems to suggest that he was a mazdoor supervising other mazdoors and also doing the work of a mazdoor. It is indeed surprising that if the mills contested this evidence as to the nature of the work that the deceased was doing, they should have called no evidence to prove what exactly was the nature of his work. Nothing was easier than for the mills to have produced the muster-roll or any other unimpeachable evidence to prove the exact type of work that the deceased was doing.'

24. The next case which is a reported decision that was decided by a Division Bench of the Bombay High Court consisting of the Chief Justice and Dixit, J., is a case of Bhagubai v. Central Railway, Bombay [1954 - II L.L.J. 403]. In that case the deceased workman was employed in the Central railway at a station on the railway and lived in the railway quarters adjoining the station. The only access for the deceased from his quarters to the station was through the compound of the railway quarters. One night the deceased left his quarters a few minutes before mid-night in order to join duty and immediately thereafter he was stabbed to death by some unknown person. On a claim for compensation in respect of the death of the deceased, it was disputed that the accident arose out of the deceased. The findings arrived at by the High Court in that case were :

(1) That as it was established in the case that the deceased was at a particular place, that he was there because he had to be there by reason of his employment and that because he was there, he met with an accident, a proximate causal connexion was established between the employment and the accident.

(2) That there must be a causal connexion between the accident and the employment in order that the Court could say that the accident arose out of the employment of the deceased and the cause contemplated was a proximate cause and not any remote cause.

(3) That if the employee in the course of his employment had to be in a particular place and by reason of his being in that particular place, he had to face a peril and the accident was caused by reason of the peril, then a causal connexion was established between the accident and the employment.

(4) That the peril which the employee face must not be something personal to him but the peril must be incidental to his employment. He must not by his own act add to the peril or extend the peril.

(5) That once the peril was established, it was for the employer to establish either that the peril was brought about by the employee himself, that he added or extended the peril, or that the peril was not a general peril but a peril personal to the employee.

25. On the basis of this case, it was argued by Sri G. N. Shah and Sri P. C. Thakore adopted the argument of Sri Shah, that the peril which is faced by the workman must not be something personal to him, that is to act according to Sri Shah, there should be nothing which the workman should carry on his own which was likely to lead to the accident which occurred. Sri Shah's argument was that when the workman had a pre-existing disease which could have proved fatal at any time, such a physiological condition was a danger that he carried by himself and on his own and that while carrying such a disease with him, if the workman continued to join his duties and while performing such duties he died, or that if a slight strain accelerated his already weak physical condition, it could not be said that a causal connection between the accident and the employment was established. This argument was sought to be advanced by Sri Shah on the strength of the observations in the judgment of the learned Chief Justice in 1954 - II L.L.J. 403. These observations are as under :

'Now, it is clear that there must be a causal connexion between the accident and the employment in order that the Court can say that the accident arose out of the employment of the deceased. It is equally clear that the cause contemplated is the proximate cause and not any remote cause. The authorities have clearly laid down that if the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face a peril and the accident is caused by reason of that peril which he has to face, then a causal connexion is established between the accident and the employment. It is now well-settled that the fact that the employee shares that peril with other members of the public is an irrelevant consideration. It is true that the peril which he faces must not be something personal to him; the peril must be incidental to his employment. It is also clear that he must not by his own act add to the peril or extend the peril.'

26. These observations, it is clear, cannot be given the construction which Sri Shah seems to put on them. As we have already seen, it has been decided in several cases in England and also by the Bombay High Court that the mere fact that the deceased workman carried a disease with him would not disentitle his representatives from preferring a claim for compensation under the Workmen's Compensation Act, for instance, in the case of Bai Ghisabai Gomsing v. Rustom Jehangir Mills Company, Ltd. [1956 - II L.L.J. 151] (vide supra), the deceased workman was suffering from a heart disease which existed for about ten years before the accident and in that case, the Commissioner had taken the view that on the evidence, he could not hold that the deceased worked on the day on which he suffered from the attack. It was also held by the Bombay High Court that what has got to be considered is whether the employment of the deceased had any causal connexion with the ultimate death or put in a different language, whether that employment in any way accelerated his death and that it was not necessary in law that at the time of his death, the employee must actually be doing work which caused strain. If it was established that by regularly doing the work which he was called upon to do by his master, his employment caused strain which accelerated his death, sufficient causal connexion could be considered to have been established and in law the injury could be deemed to have arisen out of employment. These are the decisions of the Bombay High Court pronounced before 1960 by a Division Bench of two Judges and would be binding on this Court. Therefore, the principle decided therein must be taken as a binding authority and as we have seen, those principles are consistent with the trend of decisions of the Courts in England.

27. It appears that similar points have also arisen before the High Court of Gujarat. In Bai Shakri v. New Maneckchowk Mills Company, Ltd. [1961 - I L.L.J. 585], the principles underlying a claim for compensation were discussed and decided. The facts of that case were that the deceased workman was employed in the weaving department of the mills on 14 August 1955. He had gone to work in the second shift which was to commence at 3-30 p.m. At 3-30 p.m. while he was sitting in the grey folding department where he had gone to see a friend, he got a serious heart attack and was removed from the mill to the civil hospital. He remained as an indoor patient in the civil hospital for about a month and a half and was then discharged. He died on 16 March, 1956. The case of the claimant was that her husband died as a result of the injury caused to him by the accident which arose out of and in the course of his employment. The case of the mills was that the deceased got an attack at 3-30 p.m. before the second shift commenced and while he was sitting in the grey folding department where he had gone not for the mills' work but for his personal work. It was also the case of the mills that the workman died due to heart attack while he was not in the mill's employment and therefore, he could not be said to have died as a result of the injury which could be said to have occurred out of and in the course of his employment. The medical evidence established :

(1) That the deceased had a previous attack about a year prior to 14 August 1955.

(2) That the deceased was working in the mills with a bad heart.

(3) That though on 14 August 1955 he had an attack he had survived that attack.

(4) That on 16 March 1956 when he died he must have had a fresh attack.

(5) That it was possible that the fresh attack was not caused by the attack which had occurred on 14 August 1955.

28. The question that arose for determination was whether on these facts it could be said that the deceased had suffered personal injury by an accident arising out of and in the course of his employment, even though he died on 16 March, 1956 long after his employment had ceased. Shelat, J. (as he then was), who decided the appeal considered the meaning of the word 'accident' occurring in S. 3 of the Workmen's Compensation Act. He observed that though the word 'accident' occurring in S. 3 was not defined in the Act, the word had been the subject-matter of a number of decisions as a result of which it has come to acquire a settled meaning. It was further held that once it was found that the work which the workman had been doing was within his employment, the question of negligence, great or small on his part was irrelevant. Reference was then made in the judgment to the case of Clover, Clavton & Co., Ltd. v. Hughes [(1910) 2 A.C. 242]. After referring to the above authority it was observed in the judgment that in each case, the arbitrator had to consider whether in substance, so far as he could judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing, it would probably have come all the same, or whether the employment contributed to it. It was further observed that in other words, in each case the Court would have to ask itself the question; did the workman die from the disease alone or from the disease and employment taken together, looking at it broadly. The relevant observations in the judgment are in 1961 - I L.L.J. 585 at 589 and they are as under :

'Therefore, in each case, the arbitrator had to consider whether in substance, so far as he could judge on such a matter, the accident came from the disease along, so that whatever the man had been doing, it would probably have come all the same, or whether the employment contributed to it. In other words, in each case the Court would have to ask itself the question : Did the workman die from the disease alone or from the disease and employment taken together, looking at it broadly If it was the latter, then the workman would be entitled to compensation. The relevant factor to be ascertained in each case, therefore, would be : Did the workman suffer from personal injury or did he die because the work that he was doing, contributed to the injury or accelerated his death The fact that the workman was not actually working at the time of the personal injury would also not be relevant. In some cases it may be that by reason of his working in the employment his condition might, due to continuous work, be worsening until the crisis comes, though when it does occur, he may not actually be working. That would not mean that the injury was not caused by an accident arising out of and in the course of his employment.'

29. Reference was then made to the case of Whittle v. Ebbw Vale Steel, Iron and Coal Company, Ltd. [(1936) 2 All. E.L.R. 1221]. This reference was made in the context of the question whether the work of a workman contributed to the personal injury or not. It was observed that such a question becomes difficult of determination where it is a case of heart attack and that in such a case there are always two possibilities, viz., a man with a bad heart might die in sleep or while he is actually resting or he may also die with the slightest strain arising out of even ordinary work, not involving any out of the ordinary physical strain. After referring to some other cases decided by the Courts in England, Shelat, J., referred to the case of Srimathi Laxmibai v. Chairman and Port Trust, Bombay [1954 - I L.L.J. 614] and it was held that the decision in the Bombay case did not make any departure from the principles laid down in the decisions of the Courts in England. The learned Judge then summarized the principles which emerged from the decisions as under :

'The principles which emerge from these decisions are :

(1) There must be a causal connexion between the injury and the accident and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

(3) It is not necessary that the workman must be actually working at the time of his death or that death must occur while he is working or had just ceased to work.

(4) Where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed.'

30. It may be mentioned that Sri Thakore and Sri Shah referred to the decision of this Court in Appeal No. 1079 of 1960 in which the view taken in 1954 - I L.L.J. 614 by a Division Bench of the High Court of Bombay was not followed. In 1954 - I L.L.J. 614, it has been held that where death was due solely to a disease from which the workman was suffering and his employment had not been in any way a contributory cause, and if death was brought about by what might be called mere wear and tear, then it might be said that the death did not arise out of the employment of the workman. But where the death was due to a strain caused while the workman was doing the work of his employer, and if it was established that that strain, however, ordinary, accelerated the death or aggravated the condition of the workman, then the death could be said to have resulted out of the employment of the deceased. This judgment was, as stated above, referred to in 1961 - I L.L.J. 585 wherein at p. 591 the learned Judge who delivered the judgment has almost repeated the same expression that was made by Chagla, C.J., in the Bombay case. I have also made a reference to another Bombay case in Bai Ghisabai Gomsing v. Rustom Jehangir Mills Company, Ltd. [1956 - II L.L.J. 151], in which a Division Bench of the Bombay High Court consisting of two Judges held that what has got to be considered in such cases is whether the employment of the deceased had any casual connexion with the ultimate death or to put in a different language, whether that employment in any way accelerated his death and what it was not necessary in law that at the time of the death, the employee must actually be doing work which causes strain. It was held in that case that if it was established that by regularly doing the work which he was called upon to do by his master his employment caused strain which accelerated his death, sufficient causal connexion was established and in law the injury would be deemed to have arisen out of employment. In this connexion, reference may also be made to the case of Raipur . v. Smt. Chhotti Chantoli, Appeal No. 2 of 1952 decided by a Division Bench of the Bombay High Court consisting of two Judges and to which reference has already been made. It may be recollected that in that case, the learned Judges were considering the proposition that before it could be said that a workman was entitled to compensation, it must be shown that the work which the deceased workman was doing was such as was likely to accelerate his death and it was suggested that there were two ways in which a workman's dependant could show that he was entitled to compensation one by showing number of factors which contributed to the death and the second, if that could not be done, by showing that the work which the workman was expected to do was likely to accelerate death. The learned Judges in that case considered that the Commissioner for Workmen's Compensation chose the first way for his decision, but if he had chosen the second way, he could have found no difficulty, that is to say, if the Commissioner had proceeded on the basis that the work which the workman was expected to do was likely to accelerate death. The condition of the heart of the deceased and the work which he was expected to do were such factors as would have supplied him with sufficient material to come to a decision in favour of the workman. There is thus sufficient and binding authority to hold that it is not necessary for the dependant of a deceased workman to establish that the deceased was engaged in some exceptional work of a particular kind which placed excessive strain on the deceased so as to result in his death. If the work that the workman was doing or was expected to do was likely to accelerate death, it could be said that the causal connexion between the injury and the accident was established and the accident and the work done were in the course of employment. Where the evidence is balanced, the arbitrator will, no doubt, have to go on the basis of greater probability and see whether the materials before him would satisfy a reasonable man that the work contributed to the causing of the injury. But that would not mean that it would be necessary for the dependant to establish that the workman was actually working at the time of his death on a work which involved such exceptional strain which resulted in his death.

31. We may now revert to the points made out by the learned advocates of the employers and consider them in the light of the above principles. The argument that if a workman carries with him a disease which had affected one of his vital organs, it should be considered that he carries a danger with him and that therefore, when such a disease leads the workman to death on some strain, it must be considered that such a peril was personal to the employee and not incidental to the employment, cannot be accepted. We have seen that the authorities fare almost unanimously agreed on this question. We have also to bear in mind the purpose of the Act and the words in which S. 3 has been enacted. The argument that such factors as pre-existing diseases affecting vital organs which must result in death without strain or such factors as old age which brings in diseases with advance in years when present, can never create a situation so as to establish a causal connexion between accident and employment, must also for the same reasons be rejected. Similarly, the contention that there must be positive evidence to show that death was not caused by disease but by an excessive strain of doing the particular work in which the workman was engaged at the time does not find support from the authorities and the question whether the evidence is sufficient to create the liability of the employer for compensation would depend upon whether it is of such tendency and probability that it would satisfy a reasonable man that the work contributed to the causing of the injury or that the workman was engaged in such activity that was likely to cause such strain as would accelerate his death. The arguments therefore, advanced on behalf of the employers, as regards the general principles that should be made applicable to the facts of the present case cannot be accepted, and the facts of the two cases would require to be decided according to the (sic) set out above.

32. First Appeal No. 645 of 1961. - As regards Appeal No. 645 of 1961 which has arisen out of Application No. 69 of 1953 filed by the dependant of workman Krishan Vashram who died on 26 February, 1958, it is an admitted position that Krishan was employed in the employ of the company on that day. It is also an admitted position that on that date the workman was on work as a head jobber when he suddenly developed pain in his chest, vomitted blood a about 9-30 p.m. and died in the early morning on the next day. Dr. Dhawan, Ex. 10, had examined the dead body of Krishan and the cause of death was found to be bilateral pulmonary tuberculosis. The evidence of Dr. Dhawan clearly discloses that a patient suffering from such disease would be advised complete rest and that if such a person did not take rest or underwent exertion or strain the pathological condition would be aggravated and would hasten death. According to medical opinion, the workman must have suffered from the disease for a sufficiently long time. The medical evidence thus establishes that such a patient should have taken complete rest, but if he did not do so, it was likely that if he underwent exertion or strain, his death would be accelerated. As regards the work that the deceased was doing at the time and the likelihood of the strain in the work, the evidence of Kalidas Ex. 11 shows that deceased Krishan was working as a head jobber on 25 February, 1958 and that on that date he did the work of changing counts. He had brought speed wheels and rings from the store and had to change spindles. The work required changing of wheels also. The deceased workman had also the bring ring travellers and to bring bobbins. He had brought three or four baskets on inter-bobbins by drawing with a rope and each basket contained about 20 to 25 bobbins each weighing about 3 lbs. when the deceased workman went to bring another basket, he said that he was feeling some pain in his chest. This according to witness Kalidas, happened at about 9 or 9-30 p.m. Kalidas has further stated that at that time the deceased workman had worked for about 1 1/2 hours when he had said that he would go out. Thus, from the evidence of Kalidas it appears that the workman did several items of work mentioned by Kalidas in his deposition, the work of changing counts being one of them. The second witness Cagalbhai, Ex. 12 supported Kalidas on the fact of changing of counts on machine 11. Cagalbhai said also the Krishan was working as a head jobber on the relevant day in the shift period which started at 3-30 p.m. Cagalbhai also stated that the deceased workmen had dragged three or four baskets on that night and that he had done other repairing work. Cagalbhai the on also speaks of changing the wheel to start a machine. It is true that Cagalbhai speaks of the deceased having complained of pain at 10 p.m. whereafter he worked but that is only a slight and unimportant discrepancy between the statement of Kalidas who stated that the deceased was feelings pain at about 9 or 9-30 p.m. The evidence of Mangaldas Ex. 13 also shows that deceased Krishan was working in Khata No. 1 on the relevant day and that at about 10-30 p.m. The deceased had told him that he was not feeling well. Mangaldas also stated that as a jobber the deceased had to appoint operatives with great speed and he had also to see whether anything was to be changed. Witness Jethalal Ex. 14 who was working as a spinning assistant at the time, has stated that the deceased was working in the throstle department as a ring jobber and as a ring jobber he had to place workman on the frames when the shift began. It would take about 20 minutes to finish this work. The deceased had also to take work from oilmen and mukadams of the department and had also to keep supervision in the department. It is true that the learned Commissioner has not relied upon the evidence of the two witnesses Kalidas and Cagalbhai, but that appears to be in respect of their version about the change in counts made by the deceased. But as regards the other work that was done by the deceased, there is the evidence of these workers and the evidence clearly shows that the deceased was on his work in the shift which began at 3-30 p.m. On that night the deceased was on his usual duty and had worked from 3-30 to 7-30 p.m. which was the first part of the shift and after a recess of half an hour from 8 p.m. to 9-30 p.m. when it appears he got the attack and vomitted blood. The evidence also shows the nature and extent of the duties that were assigned to him and the learned Commissioner was right in observing that these duties could not be said to be light either. It is thus established that the deceased on that night had done work which would cause strain to him and was also assigned such duties as was likely to cause some strain to him. According to medical opinion, strain would accelerate the death of the workman who was suffering from bilateral pulmonary tuberculosis. It could not, in these circumstances, be said that a reasonable man could not have come to the conclusion that a connexion was established between the work and the accident. Undoubtedly, the deceased workman was suffering from a disease of a vital organ, but equally so, it has been established that strain on account of work would accelerate the death of such a person. Reading the medical evidence together with the work that was assigned to the deceased as a head jobber and considering the fact that the deceased was actually working in the mills at the time when he suffered the attack, there was reasonable ground for the Commissioner to come to the conclusion which he did, that it could, under the circumstances, be safely assumed that the work as a head jobber which the workman was doing was likely to cause strain on him and that the nature of the work of the deceased was such as would increase the strain on the heart and accelerate his death. There was, therefore, material on the record to entitle the Commissioner to come to the conclusion that causal connexion was established between the work of the deceased workman and his death and it cannot be said that the learned Commissioner has committed any error in arriving at such conclusion which would require interference by this Court. It was not necessary for the dependant of the workman to show in what particular work the workman was engaged before he received the attack and to show that the work was such that would impose upon the workman strain of an exceptional nature which must result in his death. The evidence on the record was sufficient to entitle the learned Commissioner to come to the conclusion that the deceased was working as a head jobber and the nature of the work that he was doing was such as would involve physical exertion. It must be remembered that as a head jobber the deceased was required to keep supervision in the department and was and would have to move from place to place. It must also be remembered that the deceased had attended to his duties already for four hours in the first part of the shift and after a recess of half an hour, he had again attended to his duties for another 1 1/2 hours at least. Having regard, therefore, to the principles applicable to such cases, it must be held that the learned Commissioner for Workmen's Compensation has not committed any error in awarding compensation to the applicant before him. The amount that has been awarded has not been disputed, with the result that this appeal must fail and is dismissed with costs.

33. First Appeal No. 57 of 1963. - In Appeal No. 57 of 1963 which relates to Application No. 74 of 1959 before the Commissioner for Workmen's Compensation, Ahmedabad, the deceased workman was one Babaji who was working in the appellant-mills on 27 March, 1959. It is an undisputed position that the deceased workman was in the employ of the mills on 27 March, 1959 and it is not in dispute that he was at work on that day from 7 a.m. and that he had vomitted blood at about 8-30 a.m. On 27 March, Dr. Desai performed post mortem examination on the dead body of Babaji and found that the cause of death was acute coronary insufficiency. According to his opinion, the duration of the disease was about 5 to 10 years and strain would aggravate the death of a person suffering from such disease. Dr. Desai also stated that age was probably the cause of narrowness of the coronary vessels, but he stated that normal duties might or might not bring death of aggravate death. According to Dr. Desai, death would have been the natural result of the disease sooner or later and the workman would have died either when he was resting or working. Dr. Desai stated that that was a case of natural death, but what he meant was in the context of what he had already stated about the disease and its result. His evidence clearly shows that the deceased was suffering from acute coronary insufficiency, a disease from which the deceased must have suffered for about five to ten years. Dr. Desai's evidence also establishes that strain would aggravate the death of such person suffering from such a disease. As regards the work that the deceased was doing, it appears from the evidence of Popatji, Ex. 11 that the deceased was working in the engineering department of the mills as an oilman. On 27 March, 1959 the deceased was had joined duties and was on work in the first shift which would begin at 7 a.m. at about 8-30 a.m. witness Popatji posted Babaji on the engine. The rope of the fly-wheel had given way and Babaji had repaired it. He then came to the engine and was sitting there, and after sometime he vomitted foam and blood. In his cross-examination, Popatji stated that there were other persons who had also repaired the rope and that an adamant oilman might refuse to help the ropeman in repairing the rope. In his cross-examination, he further stated that the deceased had not gone to repair the rope, that the rope was removed from the fly-wheel and that such operation would not require physical exertion. Popatji further stated that Babaji had taken about five minutes to remove the rope from the fly-wheel. Thus, there was evidence to show that Babaji was on duty from 7 a.m. and it appears from the evidence of Popatji that his duty was to oil the engine. It would be justifiable to suppose that Babaji who had joined his duties must have performed them in the usual course. The evidence of Popatji also shows that Babaji had worked for some time in removing the rope from the fly-wheel. His evidence also shows that Babaji had attended to an engine. We have also the evidence of Dr. Desai showing that the workman was suffering from coronary insufficiency and that strain of work was likely to accelerate his death. It may be that he might have died of the disease even while resting but from the fact that the deceased workman was found actually working and had worked for about an hour and a half before he got the attack and from the fact that he suddenly collapsed while doing his work, it would be reasonable to assume that strain of work had accelerated his death. There were circumstances on the record and there was material before the learned Commissioner for Workmen's Compensation on the basis of which he could justifiably come to such a decision. The contention of Sri Thakore appearing on behalf of the mills was that the deceased workman was an old man with a disease which must have existed for about five to ten years before his death, and that there was nothing in the evidence to show that there was any strain taken by the deceased on that day and that in these circumstances, it could not be said that strain had accelerated the death of the deceased. Sri Thakore's further contention was that the deceased was an old man and that on account of old age, the deceased might have died a natural death which could be said to have been caused by old age and that therefore, it could not be said that causal connexion between the accident and the employment was established. Now, as discussed above, the authorities show that it is not necessary to establish specifically that the deceased at the relevant time was working on a particular job which exercised upon him such excessive strain that resulted in his death. The authorities further show that when such factors as disease or old age have pre-existed, they do not necessarily rule out the possibility of death having been accelerated by strain. The crux of the matter is whether the deceased had worked at the relevant time on a job which would cause strain and whether the job that was assigned to the deceased was likely to cause strain that would accelerate his death. It may be that in the case of workman with good health and a strong body that amount of strain which the deceased had undergone at the relevant time might not have resulted in his death and it may also be that in the case of another workman a lesser perilous result might have followed. If the principle that a pre-existing disease or infirmity would not by itself disentitle the dependants of the deceased workman from claiming compensation and that if such disease or infirmity would not by itself negative the possibility of the existence of a causal connexion which is required to prove a claim for compensation, was right, the next question then that would arise for consideration would be whether in spite of the disease there was or there was not strain that was likely to be caused in the work in which the employee was engaged or in the work which was assigned to him. Unless there were circumstances to the contrary, it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time. It would also be natural to presume that if such work involved some strain, the disease that was existing was likely to be aggravated provided, of course, there was medical or other evidence to support such a finding. The question, therefore, would really be whether it was established that the deceased died purely as a result of the disease from which he was suffering and the strain or work which he had been doing until the attack did not contribute to or accelerate his death, or whether it was established that the deceased workman, though suffering from a disease had strain of work which he was doing in the course of his employment which contributed to or accelerated his death. In the former case, the employer would not be liable; whereas in the latter, he would be. The findings on those points would necessarily depend upon the circumstances and the inferences which could legitimately be drawn from the facts on record. Here, as we have already seen, there was material on the record which disclosed facts from which it could reasonably be inferred that the deceased had suffered some strain which had accelerated his death. It could not, therefore, be said that the learned Commissioner for Workmen's Compensation had committed any error in holding that causal connexion between the accident and the employment was established and that the case fell within the ambit of Sub-section (1) of S. 3 of the Workmen's Compensation Act.

34. The amount that has been awarded not being in dispute, the result is that the appeal must fail and is dismissed with costs.


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