A.R. Bakshi, J.
(1) This is a Letters Patent Appeal against the decision in First Appeal No. 1079 of 1960 which was a First Appeal preferred in this Court against the order of the Commissioner for workmen's compensation Application No. 87 of 1958 which arose on the following facts. The applicant in that mater was the widow of one Chandulal Hemchand who was an employee of the New Rajpur Mills Company Limited, Ahmedabad, the present respondent and who died on 12th February 1958 when he was on work in the stamping department of the mills. On that day Chandulal felt giddy and became unconscious and subsequently died in the department. The monthly wags of Chandulal were between R. 80 and R. 100 and his widow the original applicant as the dependant of the deceased, claimed Rs. 3,000 as compensation on account of the death of her deceased husband having occurred as a result of a personal injury received by him by accident arising out of and in the course of his employment. The learned Commissioner for Workman's Compensation, Ahmedabad, by his order dated 23rd August 1960 awarded Rs. 3,000 as compensation. The employer, the New Rajpur Mills Company Limited preferred First Appeal No. 1079 of 1960 in the High Court which was decided by Raju J. On 11th February 1963. The appeal by the employer was allowed by the learned Judge against whose decision the present Letters Patent Appeal is preferred by the original applicant.
(2) As stated above the learned Commissioner for Workman's compensation awarded Rs. 2,000 as compensation holding that the workman Chandulal died as a result of a personal injury received by him by accident out of and in the course of his employment.
The issues that were framed by the learned Commissioner for determination were:
'(1) Whether Chandulal Hemchand was a workman?
(2) Whether he died as a result of personal injury received by him by accident arising out of and in the course of his employment?
(3) If so what is the amount of a compensation payable to the applicant? And
(4) What order?
The learned Commissioner while holding that the deceased died as a result of personal injury received by him by accident arising out of and in the course of his employment observed:
'What we have to see in this application is whether any casual connection between Chandulal's work and his death is established in this case one thing is certain that Chandulal was suffering from acute coronary thrombosis. According to opponent's doctor Chandulal ought not to have undergone any strain because of his disease. This clearly shows that the strain of work was the immediate exciting cause of Chandulal's death. If that is so, injury was caused to Chandulal as a result of an accident. The learned single Judge who heard the First Appeal against the order of the learned Commissioner, set aside the order of the learned Commissioner granting compensation on certain principles which have been set out in the judgment. The learned Judge was of the view that :
'If a person who goes to work was already labouring under a disease which is in its origin quite distinct from his work an dies as a result of the disease and the ordinary strain of his ordinary work he cannot be said to have died as a result of accident. According to the learned single Judge, if the workman did nothing exceptional on the day he died and if he did the work of the same type as he did everyday then it could not be said that death was caused by an accident in the course of his employment. The learned Judge also observed that: ' I would go further and say that the burden of proof is on the workman to show something exceptional happened in his work so as to amount to an accident on that day or that the accident happened during his work which was not a part of his daily work.'
The learned single Judge, while holding the against the present appellant, did not follows the judgment of Bavdekar J, in appeal No. 2 of 1955 decided by the Bombay High Court and the judgment of Bombay High Court in Laxmibai v. Chairman and trustee, Bombay port Trust, reported in AIR 1954 Bombay 180.
(3)In order to appreciate the correct principles that should be applicable to such cases, it would be necessary to refer to the relevant provisions of Section 3 of the workmen's Compensation Act and to some of the decided cases on the subject. Section 3 of the workmen's Compensation Act before the amendment of 1959 runs as follows:-
3'. (1) If personal injury which is caused to a the accident arising out of and in course of his employment, his employer shall be liable to pay compensation in accordance with the provisions this Chapter:
Provided that the employer shall not be liable.---
(a) in respect of any injury which does not result in 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 willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provide for the purpose of securing the safety of workman.
(2) If a workman employed in any employment specified in part A of schedule III contracts any disease specified therein as occupational diseases peculiar to that employment, or if a workman, whilst in the services he has been employed for a continuous period of not less than six months in any employment the contracting of the 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 in the same kind of employment.
Explanation :- For the purpose of this sub-section a period of service shall be deemed to be continuos which has as not included a period of services under any other employer.
(3) the State Government, after giving, by notification in the Officer 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 Schedule III, and shall specify in the case of the employments so added the disease which within the State shall 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 disease 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 is unless the disease is directly attributable to a species injury by accident arising out of and in the course of his employment.
(5) Noting herein contained shall be deemed to confer any right to compensation on workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of 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 argument 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.'
'3. Employer's liability for compensation :- (1) If personal injury caused to a workman by accident arising out of and in the course of his employment, 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 three days; Clover Clavton & Co Ltd v. Hughes 1910 AC 242. It may be mentioned that in Appeal No. 1079 of 1960 decided by Raju J. Reference has been made to some of the observations of the minority view expressed in this case. In that case the workman was suffering from aneurism in so advanced a stage of disease that it might have burst at any time. The workman was tightening a nut with a spanner, when the strain, quite ordinary in the ordinary work, ruptured the aneurism with the result that the workman died. The County Court Judge found 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 fatal. This decision was confirmed by the Court of Appeal which was confirmed by the House of Lords. Lord Loreburn, L.C. at page 246 observed:-
'I do not think we should attach any importance to the fact hat 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 we should attach any importance to the fact that this man's 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 appears that in the case on the real question whether the accident arose our of the employment of he workman, the evidence before he County Court Judge was conflicting but it was 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, as observed by Lord Macnaghten at page 249, the fact that the man's condition predisposed him to such an accident was immaterial. We may also refer to the observations made by Lord Collins who was of the view that the case was concluded by the authority of fenton v. Thorley & Co LTD., (1903) AC 443. At page 255 Lord Collins has observed:
'One of those specially commented upon by Lord Macnaghten, Hensey v. White, (1900-1 QB 481) was in essentials, identical with this case. The workman 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 has found as a fact that the death was the result of chronic disease and held that something beyond the mere fact hat a long-sanding 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 confirmed 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 move something not easily moved, were to strain a muscle, or rich his back or rupture himself, 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 to trying to move something too heavy for him.' He then goes to express his entire agreement with case of Steward v. Wilsons and Clyde Coal Co Ltd., (1902-5 F 126) and singles out of special approval a passage in the judgment of Lord M'Larne:
' If a workman, in the reasonable performance of his duties, sustains a physiological injury as the result of the work he is engages in this is accidental injury in the sense of the Statute'
Lord Lindely likewise expresses his approval of the same decision.'
(5) We may also refer not another case where death could not be made attributable to any sudden and unusual strain having been put on the workman. That case is the of Mcfarlane v. Huton Bros. (1926). All ER 246. In that case the workman who died was employed as a stevedore and 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. The tub was carried on a chain and had to be deflected form 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 workman 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 was not suffering from any ailment and he worked sometimes three shifts and sometimes five and he never complained of his work, but from subsequent events plained of his work, it was found that he was suffering from disease of the coronary arteries of the heart which sooner or latter would cause death. The deceased while he was engaged in pushing or pulling the tub into the tight position, suddenly fell illegitimate caused work for a moment and tried to resume the work when again he felt illegitimate and stooped. He went up a ladder to the top of the tunnel and thereafter he died. The widow of the deceased workman then brought proceedings as a dependent claiming compensation on the ground that her husband had died from an accident arising out of and in The course of his employment. The learned County Court Judge, relying on the medical evidence, came to the conclusion that the workman died from the disease alone as 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, even though it was not attributable to any sudden unusual strain having been put on the workman and that therefore, the widow was entitle to compensation. Lord Collins in 1910 AC 242,
' 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.'
It was also observed in that case that it would be wrong to look for an accident the from of a sudden strain exercised on the workman, something which was more than ordinarily borne by him or an application of pressure made at the moment to overcome some particular resistance. It also appears that Lord Hans worth referred to with approval the following quotation made in 1910 AC 242:-
' A workman suffering from an advanced aneuism of the ordinary way by tightening a nut with a spanner. This ordinary strain caused a reptrue 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?
(6) It would also be relevant here to refer to the case of Partridge Jones and john Paton Ltd. v. James. (1933) All ER 316. In that case at the time of his death, and for sometimes before, the workman was suffering from disease of coronary arteries brought on by an attack of syphilis and his State was such that, although he might did at any time without engaging in any act required exertion, every sort of physical labour was dangerous and likely to lead to heart failure. On the day of his death he was engages in the gavanising Department of the employers and while working suffered from an attack and died. The learned County Court Judge held that the physical exertion which the workman went thorough while doing work had accelerated his death. Before the House of Lords an argument was advanced that in order to establish that a workman was entitle to the benefit of the workman's Compensation Act it was necessary to show that the had suffered an injury as a result of some definite things that he had done in the course of his work, if in the normal course of his owing to the imperfect condition of his arteries, or whatever other internal organ may have been diseased, the workman 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. Those arguments were not accepted in view of the decision in 1910 AC 242.
(7) This was the trend of authorities in England in the construction and application of the relevant law on the subject which was analogous to Section 3 of the Workmen's Compensation Act, 1923. The main principles that emerge from these decisions have substantially been followed by our Courts. We have decision of the High Court of Bombay on such cases from which it would be possible to deduce the reasoning and the principles which should be followed indicating such claims for compensation. The first case is the case of General Manager, New Kaiser-i-Hndi Spinning & Weaving Company Limited Bombay v. Bai Radhabai, decided in Appeal No. 141 of 1950 (Bom) (unreported). In that case the workman who died was employed by the Company for doing the work of bringing an empty box to the counter which was high upto the shoulder and to carry back the box when filled with bobbins. The workman 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 filed with bobbins. While the workman was lifting the boxes in the weaving department he accidentally collapsed due to exhaustion of work an died on the very spot. The medical evidence showed that the cause of death was coronary thrombosis and the medical man stated that there was an old disease relation to the blood vessel of the heart and this disease must be old existing at least six months prior to the accident. The doctor also stated that if the deceased had an attack of pain in the heart region the lifting of a box containing bobbins was a strain which would hasten his death. It was urged on behalf of the Company that the evidence showed the death was equally consistent with disease as with accident and, therefore, the claim for compensation could not be allowed N. H. Bhagwat J. While delivering the judgment on his own behalf and on behalf of Dixit J. observed:
'The difficulty however, in the way of the appellant is that it is not as if the cause of death may be 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' occurring at page 366 of Halsbury's Laws of England, Hailsham Edition Vol, 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.'
(8) The second case decided by the Bombay High Court to which reference may be made is the Raipur . V. Shrimati Chhotti Chantoli, Appeal No. 2 of 1952 (Bom) decided by Bavdekar and Dixit, JJ. (Unreported). That case again was a case of a workman who was suffering from coronary thrombosis and widespread degeneration of the tissues of the heart. The workman 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 the workman was coming down from the steps of the latrine, he appears to have had a heart attack and he fell down. He was removed to the mill Hospital where he died, and the post-mortem examination showed that death was due to coronary occlusion. The question that arose in that case was whether the work which the deceased work man was doing on the morning contributed to his death. As has been observed in the judgment delivered by Bavdekar J., what exactly he did on that morning was not clear from the evidence, but it was quite clear that his work was that of a sweeper. The work that was to be done was not very heavy, but at the same time one could not heavy, but at the same time one could not say that it was light either. In these circumstances it was held 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 relevant observations that were made in the judgment of Bavadekar J. were:
'Upon this evidence there is no doubt whatesoever as regards the cause of the death. The cause of the death was coronary occlusion. Considering the widespread degeneration of the tissues of the heart. It is reasonable to accept, as the appellant wants us to accept, that the deceased was suffering from coronary thrombosis before the date. The only question that remains is whether the work which the deceased workman was doing on that morning contributed to his death. What exactly he did on that morning is not clear from the evidence, but it is quite clear that his work was that of a sweeper. The work was not very heavy, but at the same time one cannot say that it was light either and in the case of a work man 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.'
It may be mentioned that Raju J. In his judgment under appeal did not agree with the aforesaid observations of Bavdekar J.
(9) There is, however, another case decided by the High Court of Bombay in Appeal No. 377 of 1952 (Bom) (unreported) Lalbhai Trikamlal Mills Ltd., Railwaypure, Ahmedabad v. Smt. Mariam Ratna. That case was decided by a Division Bench of the High Court of Bombay consisting of Bavdekar and Chainani JJ> and the facts on which the case was decided were as follows: one of the duties that was assigned to the workman was to carry bobbins from the roving department to the ring spinning machine and while carrying about 25 to 30 bobbins from the roving department to the machine, the work man vomitted blood, walked for a short distance, vomitted some more blood and died. It was revealed in the post-mortem examination that death was due to shock from haemorrhage from cavities due to bilateral pulmonary tuberculosis. It was decided by the High Court of Bombay that compensation could be granted even if there was a pre existing disease such as bilateral pulmonary 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. The relevant observations that were made in the course of the judgment were:
'The appellants contended before the Commissioner for Workmen's Compensation that the accident, which resulted in the death of Govind, had not arisen out of his employment. They contended that Govind must have been suffering from tuberculosis for a long time prior to the day on which he met his death and that consequently it could not be said that his death arose out of his employment. This contention has not been accepted by the learned Commissioner and we think that the learned Commissioner and we think that the learned Commissioner was right in the view which the took. It is undoubtedly true that Govind could not have contracted the disease of tuberculosis over night and that he must have been suffering from it for a long time before he died on 4th January 1951. Witness Kadeshiwarlia Sitaraman, who is the Chief Medical Officer of the Municipal T. B. Clinic at Ahmedabad, has stated that in the case of a person suffering from pulmonary tuberculosis, the disease from which Govind was suffering, even the slightest extra strain may cause haemoptysis, and that if such a person vomits blood twice or thrice in the course of a few minutes, it will cause death. The evidence shows that shortly before his death, Govind was carrying about 25 to 30 bobbins in his hands. These bobbins had yarn wound on them and according to withess Lallubhai, each such bobbin weighs one 1b. At the time of his death, Govind was therefore, carrying articles weighing about 25 to 30 lbs. This must naturally have caused some strain and it is therefore, not an unreasonable inference to draw that it was this extra strain that caused haemorrhage of blood, which resulted in his death. The work which Govind was doing on that day, therefore, appears to be the direct cause of his death, and consequently the learned Commissioner was right in holding that the accident had arisen out of his employment.'
The approach that was adopted by the Bombay High Court in this case appears to be 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 strain that caused death of the workman. That case would also show that if there is 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. It is true that 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.
(10) In another case decided by a Division Bench of the High Court of Bombay consisting of Chagla C J. A similar question appears to have been dealt with in Appeal No. 409 of 1955. Bai Ghisabai Gomsing v. Rustom Jehangur Mills Co. Ltd., (1956) 2 Lab LJ 151. The appellant in that case was the widow of one Gomsing who was a workman employed by the Mills. While the workman was working in the mills he had pain in the chest at bout 8.00 A. M. when a stimulant was given to him and he collapsed at 8:45 A. M. and he died while he was being taken to the hospital. The medical certificate was clear and showed that he died of right-sided heart failure. The Doctor also deposed to the fact that exertion had adverse effect in cases of heart failure and that the heart disease must have been about ten years old. The learned Commissioner for Workmen's Compensation took the view that on the evidence he could not hold that the deceased worked on the day of his death and that, therefore no strain was caused by any work done by him on that day. It appears that in that case the evidence was conflicting. Two witnesses were called by the appellant who were working at the same time as the deceased and both of them deposed to the fact that the deceased worked from 8.00 A. M. To 8.45 A. M. When he collapsed. As against this, the Mills called their compounded who deposed to the fact that it was he who gave a stimulant to the deceased and applied ointment to the chest when he was sent for and this was at about 8.00 A. M. The compounder was again 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 preferred the evidence of the compounder to the evidence of the two other witnesses and as it involved appreciation of evidence the High Court accepted that finding of fact. But while accepting hat finding of fact, it was observed that such a finding did not in any way support the contention of the mills. What had got to be considered was whether the employment of the deceased had any causal connection 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. It was further held that if it was established that by regularly doing the work which the workman was called upon to do by his master his employment caused strain which accelerated his death, sufficient causal connection was established and in law the injury would be deemed to have arisen out of employment. The relevant observations in the judgment of Chagla C J. Are at page 152 of the report:
'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 connection 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 accelerates his death sufficient causal connection is established and in law the injury would be deemed to have arisen out of employment.'
(11) We have referred to some of the cases decided by the Courts in England and also to some of the cases decided by the High Court of Bombay and what has been decided in these cases is that the mere fact that a deceased workman carried a disease with him would not disentitle his representatives from preferring a claim for compensation under the Workmen's Compensation Act. In the case of Appeal No. 409n of 1955 = 1956-2 Lab LJ 151 (Bom) referred to above, the deceased workman was suffering from a heart-disease which existed for about ten years before the accident and it was held by the High Court of Bombay that what had got to be considered was whether the 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 be actually doing work which caused strain. If it was established that by regularly doing the work which the workman was called upon to do by his master, his employment caused strain which accelerated his death, sufficient causal connection should be deemed to have been established and in law the injury could be deemed to have arisen out of the employment.
(12) We have also another case decided by a Division Bench of the High Court of Bombay consisting of Chagia C. J. And Dixit J. Reported in AIR 1954 Bom 180. In that case the learned Chief Justice at page 181 of the report observed that:
'The second point is a more interesting point which has been urged before us by Mr. Jaykar on behalf of the workman. As English Judges have from time to time pointed out, any decision under the Workmen's Compensation Act is not an easy decision free from difficulty. Learned Judges for a long period in England have construed the various expressions used under the Workmen's Compensation Act and it is not always easy to reconcile all the decisions, and therefore one must try and obtain such light as is possible from the decisions on which reliance has been placed at the bar. Before we turn to the authorities, let us look at the section itself and see what the facts found in this case are. The employer's liability under the Workmen's Compensation Act arises provided the conditions laid down in Section 3 of the Act are satisfied and that Section provided that 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 Therefore, in the first instance, the workman must suffer personal injury and that personal injury must be caused by an accident. It is well settled that the expression 'accident' in this section must be construed in its popular sense. It has been defined as an unlooked for mishap and untoward event which is not expected or designed. It has also been pointed out that the statute does not make a distinction between a personal injury and the accident. What the statute intends to convey is what might be expressed as an accidental injury. The next condition that has got to be satisfied is that the accident must arise in the course of the employment of the workman. He must receive the accidental injury while he is actually working for his employer. The third condition that has got to be satisfied is that the accidental injury must arise out of the employment. This last expression has led to considerable judicial discussion in England. Whereas 'the course of employment:' emphasises the time when accidental injury was caused 'out of employment:' emphasises that there must be a causal connection between the employment and the accidental injury. In this particular case the medical evidence clearly establishes that the deceased was suffering from heart disease. The medical evidence equally clearly establishes that the deceased died on the morning of August 21, as a result of the strain caused upon his heart by the particular work that the deceased was doing, viz., having to stand on his legs and having to move about, as a watchman looking after the pumping station belonging to the Port Trust. Therefore, it is clear on this evidence that the workman died as a result of an accident. He did not design that his heart should be strained, nor did he intend that he should die while he was working for his employer, and Mr. Petigara has not seriously disputed the proposition that we must hold in this case that death was caused by an accident. It may be said that the death was the result of an ordinary strain which the deceased received while he was carrying out his normal duties. It may be urged that there was nothing exceptional which the deceased did on that particular day. But as we shall presently point out, the authorities have clearly laid down that in order to come within Section 3 it is not necessary that it should be established that the workman died as a result of an exceptional strain or some exceptional work that he did on the day in question. It is clear that the deceased died in the course of his employment, but what is seriously disputed by Mr. Petigara is that the death did not arise out of the employment of the deceased......... The question therefore, that we have to consider is whether there was any causal connection between the death of this workman and his employment. The authorities again are clear that if the workman died as a natural result of the disease from which he was suffering then it could not be said that his death was caused out of his employment. The authorities also have gone to this length that if a workman is suffering from a particular disease and as a result of wear and tear of his employment he dies of hat disease, no liability would be fixed upon the employer. But it is equally clearly established that if the employment is a contributory cause, or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased.'
(13) 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 was likely to accelerate death it could be said that the causal connection between the injury and the accident was established and the accident and the work done were in the course of employment. The contention, if made, that there must be positive evidence to show that death was not caused by the disease but an excessive strain of doing a particular work in which the workman was engaged at the time of his death cannot, therefore, be accepted. The question whether that the evidence in a particular case was sufficient to create the liability of the employer for compensation would no doubt depend upon the fact whether the evidence was 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 authorities of the Bombay High Court to which we have referred were decided by a Division Bench of the Bombay High Court consisting of two Judges and all these decisions are given prior to 1st May 196, that is before the bifurcation of the former State of Bombay into separated States of Maharashtra and Gujarat and the establishment of a separate High Court for the State of Gujarat. As decided by the Special Full Bench in the case of State of Gujarat v. Gordhandas Keshavji, (1962) 3 Guj LR 269 = (AIR 1962 Guj 128) (FB) the judicial precedents of the former Bombay High Court prior to 1st May 1960 must be regarded as binding and have the same force and effect as if they were the decisions of the Gujarat High Court. We are, therefore, bound to consider the decisions of the Bombay High Court referred to above as binding authority and follow the principle enunciated therein. We are also in agreement with the reasoning adopted in those authorities and no argument has been addressed to us by Mr. B. G. Thakor to the effect that the principle decided in the Bombay authorities was erroneously decided.
(14) We may here also refer to a decision by a single Judge of this Court in a case decided on 27th September 1960. That case is Bai Shakri v. New Manekchowk Mills, 91961) 2 Guj LR 23 = (AIR 1961 Guj 34). In that case the principles underlying a claim for compensation were set out as under.:-
'(1) There must be a causal connection between the injury 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.
(5) The burden was upon the claimant to establish that the heart of the workman which was already in a diseased condition after the first attack had by the strain of the work he was doing, become weaker and which ultimately collapsed causing his death.'
Another case which was decided in September 1966 was in First Appeal No. 644 of 1961 Sarangpur Cotton Mfg Co. Ltd. V. Dev Karan, (1967) 8 Guj LR 81. That was a single Judge decision in which it was decided 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 and it would be wrong 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. It was held 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 though there was at the moment nothing unusual or particular which sets it up, In that decision it was held hat it was not necessary for the dependent 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. At page 108 of the report, the principles that would be applicable in such cases as deducible from authorities have been summarised in the following observations:
'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 to 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 a 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 dependents of the deceased workmen from claiming compensation and that if such disease or infirmity would not by itself negative the possibility of the existence of a causal connection 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 do 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 of 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 not be The findings on these points would necessarily depend upon the circumstances and the inferences which could legitimately be drawn from the facts on record.:'
In view of the several authorities referred to above and their binding nature, Mr. B. G. Thankore appearing on behalf of the respondent did not dispute the correctness of the principle set out in the above observations but what Mr. Thakore contended was that although in view of the aforesaid authorities it was not possible to accept the reasoning of the learned Single Judge in First Appeal No. 1079 of 1960, the evidence on the record was not sufficient to satisfy even the test laid down in the various cases decided by the High Court of Bombay We shall consider this aspect of the matter a little later. At the present moment on the basis of the cases decided by the High Court of Bombay decided before May 1960 which must be considered as authorities binding on this High Court and also on the basis of the soundness of the reasoning contained therein, we are not in agreement with the reasoning that has been given by Raju J in his decision under appeal. We are of the view that a pre-existing disease or infirmity would not by itself disentitle the dependents of the deceased workman from claiming compensation and that the existence of such disease or infirmity would not by itself negative the possibility of the existence of a causal connection which is required to prove a claim for compensation. We are also of the view that 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 and that 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 there was some evidence to support such a finding. Further it would not be necessary for the claimant to establish specifically that the deceased at the relevant time was working or a particular job which exercised upon him such excessive strain that resulted in his death. The real question in such cases would he 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 accelerated his death. We may now consider the facts of the present case in the light of the principles set out above.
(15) It is an undisputed fact that deceased Chandulal was working in the stamping Department of the Mills. This fact appears in the evidence of Mulchand. Exhibit 11, who has stated that the deceased was working as a bundles in that department and that his job was to tie bundles of dhoties and then to remove them to another place. According to Mulchand one such bundle contained 10 dhoties of medium size and such a bundle would weigh about 15 pounds. The deceased workman had to bring untied bundles from a distance of about 10 paces and then to tie them According to Mulchand during the whole shift the deceased had to tie about 30 to 35 bundles. It would thus appear from the evidence of Mulchand that the work that was to be done by the deceased Chandulal was to bring dhoties, tie them in a bundle, and then remove them to a particular place. There can be no doubt about the fact, therefore, that in carrying out these operations some strain would be necessary to be exerted in bringing untied dhoties and in binding them into a bundle and to lift each such bundle weighing about 15 lbs to another place. According to Mulchand, Chandulal was about 50 years old and was tying ribbons on dhoties and had to lift two bundles. It appears from the evidence of Dr. Dhawan. Exhibit 8 that the deceased died of acute coronary thrombosis. This conclusion was arrived at by Dr. Dhawan on a post-mortem examination of the dead body of Chandulal. According to Dr. Dhawan there was thrombosis of both the coronary arteries, and the heart was normal. According to Dr. Dhawan any work which did not give rest to a person would cause strain on him. Dr. Dhawan also stated that the deceased was a patient suffering from acute coronary thrombosis and that the strain might accelerate the death of a person suffering from such a disease. According to Dr. Dhawan even the slightest exertion was likely to accelerate the death of such a person. On behalf of the appellant Dr. Pandurao M Desai. Exhibit 12 was examined and he deposed that the disease from which the deceased was suffering was of a long duration and according to him even a small strain like getting up from a chair, would have caused the death of the deceased. Dr. Pandurao M. Desai further deposed that the deceased ought not to have taken any strain. The evidence of Dr. Desai might suggest that the deceased workman was suffering from such a disease as would result in death on the deceased taking the slightest strain. As stated above there was evidence on the record to show that the deceased had worked on the day on which he died and that the work was assigned to him by the mills in the course of his employment. The evidence further showed that the work that was to be done by the deceased would involve some strain on his part. The work that the deceased was expected to do and was doing on the day of his death was to bring dhoties from one place to another to bind them into bundles, each weighing about 15 lbs and to lift such a bundle to carry it to another place. It may be that the work was not very heavy but at the same item it could not be said that the work was very light and in the case of deceased Chandulal who was suffering from coronary thrombosis, it would be reasonable to come to the conclusion that it was the work that he did that contributed to his death. As already stated it was not necessary for the dependent claimant to establish that the deceased at the relevant time was working on a particular job which exercised upon him excessive strain which resulted in his death. The evidence undoubtedly established that the deceased had worked at t the relevant time on a job which would cause strain and the job that was assigned to him was likely to cause strain that would accelerate his death. Since the work that the deceased did involved some strain, it would be natural to presume that the disease that was existing was likely to be aggravated as shown in the medical evidence already referred to. There was thus 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. In these circumstances and on these facts the learned Commissioner of Workmen's Compensation was justified in holding that the deceased Chandulal died as a result of personal injury received by him by accident arising out of and in the course of his employment and that it was established that there was a causal connection between Chandulal's worked and his death. The amount that has been awarded not being disputed, the aforesaid finding would lead us to the conclusion that the learned Commissioner for Workmen's Compensation was right in awarding Rs. 3000 by way of compensation to the appellant.
(16) The decision in Civil First Appeal No. 1079 of 1960 and the consequent order allowing the appeal of the present respondent and setting aside the order of the learned commissioner granting compensation to the appellant must be set aside and the order passed by the learned commissioner for Workmen's Compensation on 23rd August 1960 in favour of the appellant awarding her Rs. 3,000 as compensation as also the order awarding costs must be restored. The appeal is allowed and the respondent should pay the costs of the appeal to the appellant.
(17) Appeal allowed.