J.B. Mehta, J.
1. The claimants have filed this appeal as the workmen compensation Commissioner and the learned Single Judge have turned down the claim for compensation on the death of the deceased Murubhai, the motor driver of the respondent factory.
2. The short facts which have given rise to this appeal are as under the claimants are the two sons and the widow Maniben of the deceased who was working as a motor driver of the respondent since last 12 years. Admittedly the deceased had been working with this factory and he was aged 62 years at the time of his death on August 28, 1965. His hours of work were from 9-00 a.m. to 12-03 noon and from 3-30, p.m. to 7-00 or 7-30 p.m. in the evening. At about 6-30 p.m. on August 28, 1965, after the factory was closed, the deceased driver had taken manager Anantrai, Ex. 27, to Chandi Bazaar about 1 miles from the factory. The manager had to buy some grocery and therefore both; the manager and the deceased came on foot to the grocery shop after parking the car at a distance of 100 yds. Within five minutes the deceased suddenly complained of pain and started vomiting. Doctor was called and the deceased was removed to the hospital. On the way the deceased collapsed. Admittedly, the salary of the deceased was Rs. 115/- per month. The case of the claimants was that even 7 or 8 days prior to the accident on August 28, 1965, the deceased during the Paryushan days was asked to take his master to Surendranagar side and because of the mechanical defect in the engine of the car he had to start the car by manual handling and he had to suffer lot of strain and thereafter he was unwell. Even on the day of the incident, it was alleged that the deceased had worked strenuously before this fatal trip. He suffered pain in the chest and he had succumbed on the day of the incident because of strenuous work. Therefore, the compensation of Rs. 7000/- on the full salary basis was claimed with penalty and costs. The Commissioner posed a question as to whether there was overstrain because of his duty on the day of the incident which accelerated death of the deceased. There being no evidence on the point and because the Commissioner came to the conclusion that the story of the trip of Surendranagar side could not be believed and even the story of work for more than 15 hours on the day of the incident being imaginary one, the claim was dismissed by the Commissioner. The learned Single Judge also disbelieved the story of Surendranagar side trip during paryushan days or that the deceased had taken up any such excessive strain on that day. The learned Single Judge also found that the argument was plausible that the deceased having been in service for the whole of the day, strain must have been involved which must have accelerated his death. But he observed that cases do arise in which the motor drivers were not asked to drive a car even once a day though on duty. The learned single judge observed that there was nothing to show that on that day the deceased had either driven a truck or any other car which resulted in some strain which would have some connection with his death which ultimately occurred that evening. Even the fact about the manager being taken to Chandi Bazar at a distance of about 1 miles was not such as would impose such strain which would accelerate the death because of the strain. Therefore, no causal connection having been established, the learned judge found that it was possible that at the ripe age of 62 the deceased must have died a natural death and, therefore, in the absence of any evidence of the deceased suffering any disease of heart, the inference of the Commissioner was held to be justified. The learned single judge, therefore, dismissed this appeal and, therefore the claimants have filed the present I.P. Appeal. It is true that this concurrent finding of fact that there was no such previous trip to Surendranagar side 5 or 7 days prior to the day of the incident, nor 15 hours work was taken from the deceased must be accepted. Mr. Zaveri vehemently argued that once these preliminary primary facts are accepted, the whole binding of fact of the Commissioner and of the learned single judge could not be disturbed in this appeal because the jurisdiction in appeal is to interfere only on a substantial question of law. In Hind Trading Co. v. Union of India : 2SCR533 their lordships had pointed out the settled legal position as to such errors of jaw when a conclusion was arrived at by the authority which had not properly understood the relevant enactment. In that connection their lordships had approved the relevant observations of denning L.J. In Regina v. Medical Appeal Tribunal (1957) 1 Q.B. 13. 574 at page 582 which are as under:
No reasonable person, who had proper regard to Regulation 2(5) could have come to such a conclusion, it is now settled that when a tribunal come to a conclusion which could not reasonably be entertained by them if they properly understood the relevant enactment, then they fall into error in point of law: see Edwards Inspector of Taxes v. Bairstow (1956) A.C. 14. When the primary facts appear on the record, an error of this kind is sufficiently apparent for it to be regarded as an error on the face of the record such as to warrant the intervention of this Court by certiorari.
Therefore, the finding of fact which suffers from such material defect, i.e., which is in this sense perverse, because it is not warranted, if the Tribunal was duly instructed in the relevant enactment, or if certain material primary facts which would make the fundamental difference were ignored or a wrong test had been posed, the decision would be suffering from the error of law, which could be surely interfered with. In the present case the legal position is well settled. In M. Mackenzi v. I.M. Jssak : (1970)ILLJ16SC their lordships in terms pointed out that to come within the Act the injury by accident must arise both 'out of and 'in the course of employment'. The words 'in the course of the employment' meant 'in the course of the work which the workman was employed to do and which was incidental to if. The words 'arising out of employment' would mean that injury has resulted from some risk incidental to the duties of the service, which unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. In other words, there must be a causal relationship between the accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of the employment. The expression applies to employment as such, to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises out of employment. To put it differently, if the accident had occurred on account of the risk which is an incident of an employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent Act. Their lordships also explained the onus of proof in such cases which is said to be on the workman. Their lordships pointed out that the burden as regards these two ingredients that the accident arose out of employment as well as in the course of employment rested on the workman. But that did not mean that he must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose out of and in the course of employment rested upon the workman, those essentials might be inferred when the facts proved justified the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It was impassible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it. Their lordships quoted the observations of Lord Birkenhead L.C. In Lancaster v. Blackwell Colliery Co. Ltd. 1918 WC & IR 345 as under:
If the facts which are proved give rise to conflicting inferences of equal degrees or probability so that the choice between them is a mere matter of conjecture, then of course, the applicant fails to prove his case, because it is plain that the onus in these matters in upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion in that for which the applicant contends, then the arbitrator is justified in drawing an inference in his favour.
This identical question had been concluded also by the Division Bench consisting of Bhagwati J. as he then was and Bakshi J. In Shantaben v. New Rajpur Mills Co. Ltd. 8 G.L.R. 1012. The Division Bench in terms overruled the test involved by Raju J. In the earlier decision by pointing out that such a contention could not be accepted that there must be positive evidence to show that death was not caused by the disease but due to excessive strain on doing a particular work in which the workman was engaged at the time of death. Therefore, it was in terms held that it was not necessary for the defendants to establish that the deceased was engaged in some exceptional work of a particular kind which involved excessive strain so as to result in his death. If the work that the workman was doing was likely to accosted, death, it could be said that the causal connection between the injury and the accident as established and the accident and the work done were in the course of employment. The question whether 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. It was further held in para 14 after referring to the cases of Bai Shakri v. New Manekchok Mills 1 G.L.R. 23 and Sarangpur Cotton Mfg. Co. Ltd. v. Dev Karsan 8 G.L.R. 81 as under:
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 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 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 connection which is required to prove a claim for compensation, was right, the next question then that would arise for consideration would be whether inspite 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 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 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.
It is in the light of these settled principles that this question has to be examined to find out whether the accident arose out of employment, as there is no dispute in the present case that it was during the course of the employment while the manager was carried to the grocery shop during the duty hours of the deceased driver.
3. As per the settled legal principles which we have earlier pointed out the causal connection test has to be applied to determine whether the accident arose out of the employment. It is this nexus between the work and the injury or this causal connection which attracts the liability for compensating the workman who met with this accident. That is why the relevant test or question which has to be posed is whether the deceased died purely as a result of the disease if he was suffering from any or old age, and the strain of work did not contribute to or accelerate his death or whether it was established that the deceased workman had been suffering from a disease or being old 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 concept of work-connected injury not being there, the necessary nexus being absent would not make the employer liable, while in the later case it being the work-connected injury, the necessary nexus would make him liable. While answering this question, the Division Bench had further pointed out that it was not necessary to establish specifically as per the settled legal position that the deceased at the relevant, time was working on a particular job which exercised upon him some overstrain or excessive strain which resulted in his death. As per the settled legal position when such a factor exists as the disease, infirmity, or old age, the pre-existing factor will not necessarily rule out the possibility of death having been accelerated by even ordinary strain. The crux of the matter in such cases, when there is such pre-existing disease, infirmity or old age as the material factor, is whether the deceased had worked at the relevant time on a job which would cause some strain and whether the job that was assigned to the deceased was likely to cause strain that would accelerate his death in view of the pre-existing factor. That is why 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 or old age would not by itself disentitle the dependents of the deceased workman from claiming compensation, and that if such disease or infirmity or old age 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 would then arise for consideration would be whether inspite of the disease, infirmity or old age, there was or there was not the 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, and it would also be natural to presume that if such work involved some strain, the disease, infirmity or old age, that was existing was likely to contribute to or accelerate the death. In such cases the pre-existing disease, infirmity or old age is the pre-disposing factor which will supply the necessary causal link to make this a work-connected injury, if death takes place while the workman is engaged in his normal work.
4. In the present case, the Commissioner had obviously applied wrong test as to whether there was overstrain or excessive strain on the day of the incident. Even though the learned Single Judge has mentioned the test of causal connection, with great respect, he also fell in the same error when he ignored these primary facts which made the fundamental difference to the whole ultimate conclusion that the deceased was an old man of 62 years, who had put in the whole day's work and who was driving the manager to the grocery shop at a distance of 1 miles and had walked with the manager a distance of 100 yds. After parking the car and had complained of pain in the chest at the grocery shop. Within a short time while he was being removed to the hospital after he was given on the spot an injection, he had collapsed. Therefore, in such a case the sudden collapse of the worker after he suffered this injury resulting in his chest pain was clearly a result of a work-connected injury and not one which had no nexus or connection with the work which he was doing. Both the courts applied the wrong test as, to whether a healthy worker who would be at a young age might not have such fatal consequence by such strain. Both the courts had to keep in mind the relevant old age factor of this pensioner who was recruited by this factory and was working in this factory for about 12 years. On the day in question he had been on duty for the whole day and it was while driving the manager for grocery shop at a mile and half from the factory at 6-00 p.m. that this accident happened near the grocery shop. If all these primary facts which would have made fundamental difference in the ultimate conclusion were kept in mind and the settled principles were applied by the learned Commissioner as well as by the learned single judge, the conclusion is inescapable that this was work-connected injury or there was causal connection or that whatever strain which this driver had undertaken on that day in the course of his employment had clearly contributed to or accelerated his death. The evidence which is necessary in such case need not be direct evidence of a medical witness as Mr. Zaveri expects. If the correct question was posed on these primary facts it could never be answered by holding that the deceased died purely as a result of his old age and the strain of work which he had undertaken by attending duty for the whole day and while driving in the evening in this Jamnagar City at the relevant time did not contribute or accelerate his death. In fact, this was a clear case where the old age got coupled with the employment and therefore, the employment was contributory cause and the causal connection being established, the conclusion was inescapable that the accident arose out of employment and during the course of the employment. That answer clearly fastens the liability of compensation on the respondent.
5. Mr. Zaveri vehemently argued that when the facts specially alleged by the claimants have not been proved, the aforesaid conclusion could not be arrived at because that would be a new case. The other facts were only additional grounds. Even if these facts were not established, the claimants could succeed, once they establish the causal connection between the work of the deceased and the injury. The work-connected injury would necessarily attract the liability as causal connection test would be satisfied.
6. Mr. Zaveri, therefore, next concentrated his attack on the technical ground that this application was not made by the dependants. This contention is found on the fact that the two sons who had been joined as applicants were major sons having independent earning and, therefore, would not satisfy the definition of dependents. So far as the widow is concerned, even though she was a dependent who was entitled to make this claim, the application having been signed on behalf of the claimants only be the major son Bhagvanji, Mr. Zaveri argued that the application was not a valid application in the eye of law. This contention of Mr. Zaveri was never urged before the Commissioner at all. The issues had been framed by the predecessor of the Commissioner as early as on March 20, 1968 and still no contention was raised on the ground that this widow had not put her signature on the application. If this contention which was mentioned in the written statement was pressed, nothing could have prevented the Commissioner from getting that defect rectified at that stage by getting the widow to sign the application. The respondent having waived that contention and having fought on merits, it hardly lies in the mouth of the respondent to urge this contention in this appeal for the first time, as it would cause a great prejudice. It is true that the learned single judge has observed that the present petition was not validly filed or presented by going into that contention. It is upon to this Court in this letters patent appeal to refuse to permit that contention because if it was raised at the proper stage, the Commissioner could have got the application duly signed. In any event, that was merely a procedural defect which would not affect the substance of the claim. Mr. Zaveri relied on Section 22(2) of the Act which provides that the application to the Commissioner may be made in such form as prescribed, giving the particulars mentioned. The relevant Rule 20 was also relied upon which provides in Clause (i) that the application under Section 22 may be sent to the Commissioner by registered post or may be presented to him and therefore unless the Commissioner otherwise directs it must be made in the proper form, if any, and shall be signed by the applicant. Under Clause (2) certificate shall be annexed to the application which shall be signed by the applicant to the effect that the statement of facts contained in the application was to the best of his knowledge and belief accurate. The relevant form of provides for the applicant's signature. In the present case as all the three applicants had joined in the application, the application was signed by applicant No. 1 son Bhagvanji on their behalf. It may be that ultimately in his individual capacity the son could not support his claim. But that would not make the application incompetent merely because the widow applicant had not herself signed. Mr. Zaveri in this connection ignores the material Section 22(3) which provides that if the applicant was illiterate or for any other reason was not able to give the required information in writing, and if the applicant so desired, the application could be prepared under the direction of the Commissioner. Therefore, if this ground had been pressed at the hearing, the Commissioner would have been able to cure the defect. In any event, all this procedure is to serve as a handmaid of justice and not to work tyranny so as to defeat such substantial claims especially in such labour matters. Therefore, with great respect, to the learned Single Judge, such contention involving such a great prejudice could never be permitted if it was not raised before the Commissioner, as it was a mere technical defect which could be cured if it was raised at proper time.
7. Mr. Zaveri rightly did not challenge the salary of Rs. 115/- and, therefore, on that basis the compensation which should be allowed to the dependent widow would be Rs. 7000/- Under Section 4-A(3) where the employer is in default in paying the compensation under the Act within one month from the date it fell due, the Commissioner may direct that in addition to the amount of arrears, simple interest at the rate of 6% per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent, of such amount, shall be recovered from the employer by way of penalty. This is not a case where any penalty can be ordered but the employer would have to pay simple interest at the rate of 6% from September 28, 1965, after the period of one month.
In the result, this appeal is allowed by setting aside the order of the learned Single Judge as well as the Commissioner and by allowing compensation claim of Rs. 7000/- with 6% interest from 28-9-1965 till the date of realisation with cost of Rs. 250/- for both the forums. The aforesaid compensation amount shall be deposited before the Commissioner within the period of one month from today. Mr. Zaveri applied for a certificate under Article 133(1) of the constitution. The law being completely settled, we do not think any question of wide public importance arises which, in our opinion, would justify any certificate being issued for taking the matter for decision to the Supreme Court. The request is, therefore, rejected.