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Jivatben Shamuben W/Do. Kachraji Jivaji Vs. the Manager, the Saraspur Co-op. Supply Society Ltd. anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR451
AppellantJivatben Shamuben W/Do. Kachraji Jivaji
RespondentThe Manager, the Saraspur Co-op. Supply Society Ltd. anr.
Cases ReferredKarnani Industrial Bank Ltd. v. Ranjan
Excerpt:
- - the order was perfectly valid as the alteration of the widow's circumstances by the deaths of the other dependents of the deceased was a variation of circumstances within the meaning of section 8(8). the fact that the widow had remarried was immaterial. in view of this state of affairs, the calcutta high court seemed to be of the opinion that the order of the commissioner making a change in his previous order was perfectly in order and that the civil court would have no jurisdiction to go into this question. in fact section 8(5) of the act clearly states: in the case before the supreme court, it was held that the right to obtain a mining lease is a personal right and could not be granted to an heir and legal representative, for the simple reason that the scheme under the rules.....a.a. dave, j.1. this appeal is directed against the order of the learned commissioner for workmen's compensation dismissing the application given by one jivatben, widow of kachraji jivaji, claiming rs. 7,000/- as compensation for the personal injury received by the said kachraji jivaji in an accident arising out of and in the course of his employment.2. the short facts giving rise to this appeal briefly stated are that deceased kachraji jivaji was a workman employed by respondent no. 1-the saraspur mills co-operative supply society limited, ahmedabad and saraspur mills co. limited-respondent no. 2, respectively. he was working in the canteen run by respondent no. 1 at the relevant time. the accident took place while the said kachraji was cleaning the gutter. he became unconscious as a.....
Judgment:

A.A. Dave, J.

1. This appeal is directed against the order of the learned Commissioner for Workmen's Compensation dismissing the application given by one Jivatben, widow of Kachraji Jivaji, claiming Rs. 7,000/- as compensation for the personal injury received by the said Kachraji Jivaji in an accident arising out of and in the course of his employment.

2. The short facts giving rise to this appeal briefly stated are that deceased Kachraji Jivaji was a workman employed by respondent No. 1-the Saraspur Mills Co-operative Supply Society Limited, Ahmedabad and Saraspur Mills Co. Limited-respondent No. 2, respectively. He was working in the canteen run by respondent No. 1 at the relevant time. The accident took place while the said Kachraji was cleaning the gutter. He became unconscious as a result of inhaling poisonous gas and was immediately removed to the Civil hospital, Ahmedabad. He was admitted as an indoor patient and was discharged on 4-8-1962 though not completely cured. Ultimately, he died on 20-2-1963. His widow Bai Jivatben, thereupon, gave an application under Section 3 of the Workmen's Compensation Act, 1923, hereinafter referred to as the Act, claiming Rs. 7.000/- as compensation. Respondent No. 1 by its written statement, ex. 4 denied various averments made in the claim petition. It was alleged that the deceased not having died on account of any accident arising out of or during the course of his employment with respondent No. 1, dependents of the deceased had no locus-standi to file this application. Respondent No. 1 also denied that it was given any contract as alleged or otherwise by respondent No. 2 viz. Saraspur Mills. According to it, it was independently running the canteen wherein the deceased was a workman. It alleged that the deceased had died a natural death and had not died on account of any accident arising out of and during the course of the employment of respondent No. 1. Respondent No. 2 viz. Saraspur Mills by its written statement, Ex. 5 also denied the liability on the ground that the deceased was not in service of respondent No. 2 and no accident had occurred to him as urged or otherwise during the course of his service with respondent No. 2. Respondent No. 2 denied that any contract was given to respondent No. 1 for running the canteen. Ultimately, evidence was led before the learned Commissioner and the learned Commissioner from the evidence on record held that is was not proved that respondent No. 2 had given any contract to respondent No. 1 for running the canteen. The learned Commissioner also held that it was not proved that deceased Kachraji Jivaji received the personal injury by accident arising out of and in the course of his employment on 18-6-1962. On these findings, the learned Commissioner dismissed the application. Hence, the present appeal to this Court.

3. During the pendency of the appeal, Bai Jivatben widow of deceased Kachraji Jivaji died and application No. 2546 of 1972 was given for bringing heirs of Bai Jivatbeu on record. It is alleged in the said application that the heirs mentioned therein were minor children and they were represented by their uncle Meruji Jivaji who looked after them. It is further stated that upon the death of Bai Jivatben, there was no adult male or female member in the family to inform of the death of the appellant-Jivatben, to her advocate. Only when the matter was discussed for compromise, the party was informed and only then information about the death of Jivatben was received. It was, therefore, requested that the delay in making this application for bringing heirs on record be condoned.

4. This application is opposed by the respondents. It was stated by the respondents that the application being made more than three years after the death, was barred by limitation. It was further urged that deceased Jivatben had a personal right to have compensation distributed to her under the Workmen's Compensation Act, 1923. Thus, it being a personal right of the deceased Jivatben being the dependent of deceased Kachraji, it did not survive after her death and therefore, his application for bringing heirs on record did not lie.

5. Mr. H.B. Shah, learned Advocate for the appellant in this case submitted that from the affidavit, it will be very clear that Jivatben was residing separately from the brother of the deceased, at a distance of about a mile and the minor children naturally would not be in a position to convey the death of Jivatben either to her advocate or to other person who may be in charge of the case. He, therefore, urged that ultimately when the case was considered for the purpose of a compromise, it was learnt that Jivatben had died. This knowledge about the death of Jivatben came to light when the postcard addressed to Jivatben in connection with the proposed compromise was received by Kachraji's brother. He conveyed this information to the advocate of Jivatben and an was the circumstances, Mr. Shah urged that this is a fit case where the delay should be condoned.

6. Mr. S.K. Zaveri, learned Advocate for the respondents, on the other hand, urged that this application for bringing heirs of record is made nearly three years after the death of Jivatben. No valid reasons have been given by the appellant for condoning the delay. He urged that the postcard alleged to have been addressed to Jivatben was not produced on record. Under the circumstances, Mr. Zaveri contended that this was not a fit case where the delay should be condoned. He, further, urged that the heirs could not be brought on record because the right to receive compensation under the Act is a personal right available to the dependent of the deceased only and therefore the heirs of Jivatben would have no right whatsoever to be impleaded in her place in this appeal. In support of his submissions Mr. Zaveri referred to the case of the Dependents of Rahim Bux v. James Finlay and Co. Ltd. : AIR1940Cal580 . In this case, the facts were as under:

The dependents of the deceased, his mother, widow and a minor son were awarded compensation. The share allotted to the minor was deposited by the Commissioner in the post office. On the death of the mother and the minor son, the Commissioner ordered the minor's share to be allotted to the widow and directed the postal authorities to cancel the minor's account and open afresh one in the widow's name.

On these facts, it was held that:.the order was perfectly valid as the alteration of the widow's circumstances by the deaths of the other dependents of the deceased was a variation of circumstances within the meaning of Section 8(8). The fact that the widow had remarried was immaterial.

In a suit filed by the heirs against the said order of the Commissioner, it was further observed by the Calcutta High Court that:

A civil court has no jurisdiction to entertain a suit to obtain distribution of the money which had formerly been allotted under the Act to the deceased minor. Under Section 8(8) of the Act, the Commissioner for Workmen's Compensation is the proper authority to make a redistribution. Consequently a decree (though a consent decree) of the civil court in such a suit as far as the Commissioner of Workmen's Compensation is concerned, is of no effect and cannot be executed.

Reliance was placed on Section 19(2) of the Act which provided-

No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.

It will thus be seen that as per the provisions of the Act, a civil court would have no jurisdiction to decide or deal with the question which is required to be decided by the Commissioner under the Act. The Commissioner under Section 8(8) of the Act is empowered to re-distribute the amount of compensation amongst the remaining dependents of the deceased workman in the light of the changed circumstances. In view of this state of affairs, the Calcutta High Court seemed to be of the opinion that the order of the Commissioner making a change in his previous order was perfectly in order and that the civil court would have no jurisdiction to go into this question. In the instant case, it may be made clear at the outset that the proposed heirs who are to be brought on record in place of Jivatben would come in their own right in place of Jivatben. They are not merely heirs of Jivatben, but they are the heirs of deceased Kachraji Jivaji being their minor children. As defined in Section 2(d) of the Act, 'dependent' means, any of the following relatives of a deceased workman, namely:

(i) a widow, a minor legitimate son, and unmarried legitimate daughter, or a widowed mother;

and other persons with whom we are not concerned. Thus, the proposed heirs who are required to be substituted in place of Jivatben were the dependents of the deceased Kachraji being his legitimate sons and daughters, and therefore, they would be entitled to receive compensation in their own right as provided in the Act. In fact Section 8(5) of the Act clearly states:

8(5). Compensation deposited in respect of a deceased workman shall, subject to any deduction made under Sub-section (4), be apportioned among the dependents of the deceased workman or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependent.

Thus, even though Jivatben alone had filed the petition for receiving compensation, the amount which the employer would be directed to deposit before the Commissioner would be available for being apportioned amongst all the dependents of deceased Kachraji as provided in the Act. In my opinion, therefore, merely because Bai Jivatben alone had filed the claim petition and had filed the appeal against the order of the Commissioner negativing her claim, would not mean that the proposed heirs could not be substituted in her place simply because no application was given on their behalf. Under Section 10 of the Act:

Where a Commissioner receives information from any source that a workman has died as a result of an accident arising out of and in the course of his employment, he may send by registered post a notice to the Workman's employer requiring him to submit, within thirty days of the service of the notice, a statement in the prescribed form, giving the circumstances attending the death of the workman, and indicating whether, in the opinion of the employer, he is or is not liable to deposit compensation on account of the death.

Therefore, it is immaterial if Jivatben alone had given an application for receiving compensation. The moment the order is passed by the Commissioner directing the employer to deposit the amount of compensation before him, the said amount will be available for apportionment amongst all the dependents irrespective of the fact whether they had made any claim before the Commissioner or not by a formal application. Thus, in view of the special facts of this case, the case reported in : AIR1940Cal580 (supra) relied upon by the learned Advocate for the respondents would not come into play at all. As already observed earlier, whether the amount is to be re-distributed amongst the dependents or not is within the sole power of the Commissioner as provided in the Act and the civil court would have no jurisdiction to determine such question. In such a case, only the surviving dependents would be entitled to receive the amount of compensation already ordered and it would be within the power of the Commissioner to make suitable variation in the light of the changed circumstances. Therefore, the Calcutta case has absolutely no application to the facts of the instant case. In the instant case, as already observed, Jivatben was not the sole dependent of deceased Kachraji but all the proposed heirs were also the dependents and if any order was passed by the Commissioner directing the employer to deposit any amount before him, the same would have been available to all the dependents irrespective of the fact whether they had made any formal claim petition or not. In my opinion, therefore, in the interest of justice, it is desirable that all these four persons who were also the dependents of the deceased Kachraji are substituted in the appeal filed by Jivatben. I do not agree with Mr. Zaveri that the right to receive compensation was a personal right of Jivatben and that the same would not survive to the heirs. In the instant case, it is not a mere personal right as canvassed by Mr. Zaveri. The moment, application to receive compensation as provided in the Act is given and if any order had been made, that amount could be claimed by other surviving dependents of Kachraji and proper order could be made by the Commissioner in relation to them with regard to the said amount. Therefore, it cannot be said that it was merely a personal right which did not survive after the death of Bai Jivatben. Reliance was placed by Mr. Zaveri on the case of C. Buchivernkata Rao v. The Union of India and Ors. : [1972]3SCR665 , wherein it was observed:

In order to enable a legal representative to continue a legal proceeding, the right to sue or to pursue a remedy must survive the death of his predecessor. In the instant case, the rights which an applicant may have had for the grant of a mining lease, on the strength of an alleged superior claim, cannot be separated from the personal qualifications. No provisions have been pointed out to us in the rules for impleading a heir who could continue the application for a mining lease. The scheme under the rules seems to be that if an applicant dies, a fresh application has to be presented by his heirs or legal representatives if they themselves desire to apply for the grant of a lease. It may be that the heirs and legal representatives, if they are continuing the business or industry of the deceased and have the required qualifications, obtain priority over an earlier applicant on account of special reasons for this preference. But, in each case, they have to apply afresh and set out their own qualifications. It has not been shown to us that any of the legal representatives have applied afresh.

In my opinion, this case will not be applicable to the facts of the instant case. In the instant case, the right to receive compensation under the Act does not depend on personal qualification of Jivatben. Jivatben as a dependent of the deceased was entitled to receive compensation from the employer if her husband died as a result of the accident in the course employment. In the case before the Supreme Court, it was held that the right to obtain a mining lease is a personal right and could not be granted to an heir and legal representative, for the simple reason that the scheme under the rules seemed to be that if the applicant died, a fresh application had to be presented by his heir for grant of lease if they bad required qualifications.

7. Mr. Zaveri then submitted that before condoning the delay, the court should consider whether there was reasonable cause for giving application at such a late stage. He submitted that merely because the proposed heirs are minors would not be a sufficient reason to exercise discretion of the court for condoning the delay. He urged that the uncle with whom the minors are residing naturally would have known about the death of Jivatben. He kept quiet for all these years and gave this, application at a late stage. Thus, it would not be a good reason for condoning the delay, merely because the proposed heirs are minors. He invited my attention the case of Union of India v. Ram Charan : [1964]3SCR467 , wherein it was observed-

There is no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of abatement within time, need not be over strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does not mean that the court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinise it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant's default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement.

With respect, I am in complete agreement with the observations made therein. In the instant case, the facts clearly disclose that the minors were residing with their mother. There is no evidence suggesting that the brother of the deceased Kachraji was residing with them. There is no evidence to show that the brother of the deceased had any knowledge about any claim petition made by Jivatben before the Commissioner which was dismissed or any appeal filed by her in this Court. Naturally, the minors would not be in a position to make any application for being brought on record. There is no reason to disbelieve the contents of the affidavit. In the affidavit, it is stated that the death of Bai Jivatben was known for the first time when the postcard addressed to her about the proposed compromise was received by the brother of the deceased who informed about her death to the advocate concerned as a result, the present application for bringing the heirs on record was given. There is no evidence to show that the applicant had any knowledge about the appeal filed by Jivatben in this Court. Merely because the brother of the deceased gave the application for bringing the heirs on record at a late stage would not be a sufficient ground to dismiss the same. The proposed heirs are dependents of the deceased Kachraji who are entitled to receive compensation if on merits, the claim petition is granted. In my opinion, this is a fit case where the delay in filing this application should be condoned. I, therefore, order that the proposed heirs be brought on record in place of Jivatben who died pending the hearing of this appeal.

8. It was further urged by Mr. Zaveri that the proposed heirs had not made any application before the Commissioner and in the application made by Jivatben, it was not stated that the said application was on behalf of herself as well as other dependents. As no appeal was preferred by the dependents against the order of the Commissioner dismissing the said claim petition, they would have no right to be represented in this appeal. To do not agree. As already observed earlier, it is not necessary for the proposed heirs to have joined Jivatben in the claim petition before the Commissioner. It was not necessary for them to file the appeal independently of Jivatben. Whatever order would be passed by the Commissioner in the claim petition filed by Jivatben would be for the benefit of not only Jivatben but all the dependents. Therefore, when an appeal was already filed by Jivatben, it was not necessary for the proposed heirs to be joined in this appeal and therefore, I do not agree that merely because they had not joined in the appeal, they could not be impleaded as parties in place of Jivatben.

9. Coming to the merits of this case, Mr. Shah, learned Advocate for the appellant urged that in the instant case, even from the evidence on record, it is clearly established that deceased Kachraji died in an accident arising out of and in the course of his employment on that day. He urged that the learned Commissioner had not paid proper attention to the evidence led by the appellant and had come to an erroneous conclusion.

10. Mr. Zaveri, on the other hand, urged that the finding recorded by the learned Commissioner that the deceased did not die in an accident arising out of his employment and that he died a natural death is a finding of fact and it would not be open to this Court to deal with it unless substantial question of law is involved. He relied on Section 30 of the Act which deals with an appeal against the order of the Commissioner. The proviso to Section 30 states:

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees....

What is substial question of law has been interpreted by the Bombay High Court in the case of Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust : (1954)ILLJ614Bom wherein it was observed:

It is true that in appeals against the decisions of the Commissioner for Workmen's Compensation, the High Court is bound by the findings of fact and the appeal only lies on substantial question of law. But the finding of the Commissioner must be based on evidence and if the finding is contrary to evidence, then the High Court is not bound by those findings', and it was held in that case that 'the finding of the Commissioner was opposed to the evidence on the record and the only material evidence on this point was the evidence of the doctor.

Therefore, if this Court, from the perusal of the record is of the view that the finding of the learned Commissioner is contrary to the evidence, then that finding will not be binding to me and it would be open to me to interfere with this finding in this appeal. Thus, in order to find out whether the findings recorded by the learned Commissioner are borne out from the evidence on record, 1 propose to refer to the evidence on record.

11. Witness Kesaji Veraji, Ex. 17 who was working in the canteen of the respondent-Mills and who knew the deceased well has stated that he was working in the canteen of respondent-Mills for the last 13-14 years. He knew Kachraji. He was working on the tea-table in their canteen. He was cleaning the gutter. While working, he became unconscious. He was then removed to the Mills dispensary. In cross-examination, he stated that it is his belief that Kachraji became unconscious because of the foul air coming out of the gutter.

12. Similarly, witness Kanaiyalal Chimanlal, Ex. 18 has stated that he knew Kachraji. He was working in the Saraspur Mill canteen. When he was cleaning the gutter with an iron rod, he inhaled poisonous gas. He felt giddy and became unconscious. He was removed to the Mill-dispensary and then he was removed to the Civil Hospital. Thereafter he did not return to his duty and subsequently died. In cross-examination, he stated that he had seen the gutter. He denied that the hole through which the water passes remains full with water even when the water was not flowing. He was near the place when Kachraji fell down. He had seen him cleaning the gutter. He could not speak. It was his surmise that Kachraji had inhaled the gas and had become unconscious.

13. As against the evidence of these two eye witnesses, no witness has been examined on behalf of the respondents to show that Kachraji had not become unconscious while he was cleaning the gutter. According to both these witnesses referred to above, in their opinion, Kachraji became unconscious because he had inhaled foul air coming out of the gutter. There is no reason why their evidence in this connection be not believed. The learned Commissioner has merely relied on the evidence of Dr. Narendra H. Desai and Dr. Hasmukhlal C. Mehta for coming to the conclusion that deceased Kachraji became giddy as a result of accentuated blood pressure and that he did not become unconscious as a result of inhaling of poisonous gas. In my view, the learned Commissioner was not justified in interpreting the medical evidence in this light.

14. Dr. Narendra Desai, Ex. 10 has admitted that when Kachraji was brought to him he was semi-conscious. According to him, consciousness may be lost by inhaling poisonous gas. No doubt, he has stated that hemiplegia cannot be caused by it. But he has again admitted that giddiness might occur due to inhalation of poisonous gas. In his opinion, inhalation of poisonous gas would not increase blood pressure, though blood pressure would be increased by anxiety or emotion. He admitted that there was no previous history available to him about Kachraji whether there was similar trouble before, or not. In cross-examination, he stated that he was relieved from the hospital but he was not completely cured. He stated chances of further recovery were not there. In this opinion 100% disablement means that he would not be able to do any work at all. In his opinion, Kachraji must not have been able to walk. According to him, he was likely to have died due to high blood pressure. According to him, he did not think that his complaint had any relation to his work.

15. Similarly Dr. Mehta, Ex. 16 stated that hemplegia can have 100% disablement. This disease is generally associated with high blood pressure. Deceased Kachraji could not have got hemiplegia due to inhalation of poisonous gas. In cross-examination, he stated that if a man inhales poisonous gas his blood pressure will not be affected. But he admitted that if a person inhales poisonous gas, he is likely to feel giddiness. He also admitted that he would also feel a mental shock. He also admitted that mental shock usually increases blood pressure. Thus, if the evidence of Dr. Desai as well as Dr. Mehta is read together, it will be very clear that if a person inhaled poisonous gas, he was likely to feel giddy; that would also give him mental shock and such mental shock may increase the blood pressure. It cannot therefore, be said that the medical evidence in any way negatives the evidence of other witnesses examined on behalf of the appellant that deceased Kachraji got injury as a result of inhaling poisonous gas while he was cleaning the gutter. No doubt, when the doctor examined him, his blood pressure was found very high and he had received paralytic attack. According to the doctors, such disease is generally associated with high blood pressure and it has nothing to do with inhalation of poisonous gas. It is true that inhalation of poisonously gas by itself may not cause hemiplegia. But inhalation of poisonous gas naturally would make a person giddy. It would also cause him mental shock and such mental shock may increase the blood pressure of the person inhaling poisonous gas. Under the circumstances, if as a result of inhaling poisonous gas, deceased Karchraji had received shock which in turn had increased the blood pressure, it cannot be said that merely because when he was examined by Dr. Desai, his blood pressure was found very high the attack was only as a result of blood pressure and not as a result of inhalation of poisonous gas. Previous history of Kachraji was not available to Dr. Desai or to Dr. Mehta. Their evidence is merely hypothetical. For ought we know, Kachraji may be suffering from blood pressure and his duty to clean the gutter may have accentuated the blood pressure or it may be that as a result of inhalation of poisonous gas, he may have received mental shock which may have increased the stood pressure which ultimately resulted in his death. Therefore, in my opinion, the conclusion drawn by the learned Commissioner is absolutely erroneous and cannot be said to be borne out from the evidence of the medical experts referred to above. In my opinion, there is nothing in the medical evidence which any way negatives the evidence of witnesses Kesaji and Kanaiyalal who were present at the time the deceased Kachraji had inhaled poisonous gas and had become unconscious. The medical evidence does not negative their surmises. In my opinion, the learned Commissioner has not paid proper attention to the medical evidence. He seems to have read only a portion of the medical evidence torn from its context. If the learned Commissioner had paid proper attention to this part of the medical evidence, perhaps, he would not have recorded a finding that deceased Kachraji did not die as a result of inhalation of poisonous gas.

16. Thus, as the finding recorded by the learned Commissioner did not necessarily arise out of the evidence on record, it is open to me to re-appreciate the evidence and hold that the findings recorded by the learned Commissioner were not correct.

17. Mr. Zaveri, learned Advocate for the respondents however, referred to the evidence of Bhogilal Ganpatrai Modi, Ex. 19, who stated that he was working as Chief Engineer in the respondent Mills. He produced a plan for the water connection of the drainage for sanitary purposes. According to him, small trap and gully trap always remained filled with water due to syphon action so that any gas or vapour could not come back to the Chokdi from the gutter trap. In cross-examination, 'he stated that because of the construction of the pipe, he presumed that the gas could not have come to the Chokdi. He conceded that he did not know how the deceased Kachraji died. It is, therefore, difficult to rely on the evidence of this witness that merely because water connections were made according to the plan produced by him, no gas would be found in the gutter. He does not seem to have tested water connection. His evidence, therefore, does not carry the respondents' case any further.

18. In such cases, it is not always easy to find out the exact cause of death particularly when no post mortem examination is made. In the instant case, the accident happened on 18th July 1962. He was admitted in the hospital on that very day and discharged on 4th August 1962 and died on 20th February 1963. According to Dr. Desai, even when he was discharged, he was not completely cured and there was no chance of being completely cured. Naturally, he died at his place. The question, therefore, of holding any postmortem examination over his dead body did not arise. There was, therefore, no material to find out the exact cause of his death when he died at home. But the fact remains that on the relevant day he was working in the canteen and while he was cleaning the gutter, he suddenly felt giddy and had to be removed to the hospital where he was treated for nearly a month and thereafter he was discharged though not completely cured and subsequently, he died after about four months or so. It can, therefore, safety be inferred that he died as a result of the accident met by him in the course of his employment. The proximate cause naturally would be the accident. But for the accident, his death would not have been accelerated even if for the sake of argument it may be believed that he was suffering from blood pressure. In the case of Bai Diva Kaluji v. Silver Cotton Mills Ltd. in appeal No. 407 of 1955 reported in 1956(1) Labour Law Journal, page 740, it was observed by the Bombay High Court that:

It is not always easy to have direct evidence with regard to a material issue which has got to be established. There are occasions when the court is compelled to draw inferences which naturally and inevitably arise from such evidence as there is on record.The mere paucity of evidence should not relieve the court of its obligation to come to a conclusion on necessary and material issues.

An expert's evidence based on probabilities could not be thrown away lightly as he is entitled to answer all hypothetical questions put to him. The only safeguard which should be applied in such a case is to see that the hypotheses are correctly put to the expert.

It is the most natural inference to draw that when a man suddenly collapses and dies very soon after and the doctor is not in a position to suggest any reason for this sudden collapse and the death ensuing that he was suffering from heart trouble which cannot be discovered on a mere clinical examination. Further the fact that in the instant case the deceased workman had worked for eight hours on a hot day must have caused the strain and accelerated his death. In the circumstances, the death must be held to be due to accident arising out of and in the course of, employment.

19. With respect, I am in entire agreement with the observations made therein. In the instant case also, there is no direct evidence with regard to the material issue as to how the deceased Kachraji actually died. But the fact remains that on the day he was working in the canteen and cleaning the gutter, he suddenly felt giddy and was required to be removed to the hospital where he was admitted as an indoor patient. He was discharged after a month or so and subsequently succumbed. The Medical evidence shows that even at the time of his discharge, he was not completely cured and there was very little chance of his being cured in future. Thus, it can safely be inferred that he died as a result of the accident which he had met during the course of his employment. I have already referred to the evidence of two eye witnesses who were present at the time Kachraji felt giddy while he was cleaning the gutter and I have already referred to the medical evidence which clearly shows that inhalation of poisonous gas would cause giddiness and would give shock which might increase the blood pressure. I have already stated earlier that this medical evidence does not in any way negative the claimant's case that deceased Kachraji died as a result of inhalation of poisonous gas. In the case of Laxmibai Atmaram, : (1954)ILLJ614Bom (supra), it was observed that

In order to bring accident 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. Where the medical evidence established that the deceased died 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 employer, it could be said that the workman died as a result of an accident and died in the course of his employment.

It was further observed:

the workman dies 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. If a workman is suffering from a particular disease and as a result of wear and tear of he dies of that disease, no liability would be fixed upon the employer.

But 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 coupled with the employment, then the employer would he liable and it could be said that the death arose out of the employment of the deceased.

In the instant case, the medical evidence shows that Kachraji Jivaji who was admitted in the hospital on 18th July 1962 had the following injury:

Right side hemiplegia.

The certificate further shows that his permanent incapacity was 100%. Dr. Desai has explained that 100% disablement would mean that he would not be able to work at all. This certificate no doubt would go to show that when he was examined by Dr. Desai, he was suffering from right side hemiplegia as a result of high blood pressure. Hemiplegia by itself may not be caused by inhalation of poisonous gas. But if the injury noted by Dr. Desai indicated that he was suffering from high blood pressure, it could be inferred that he must be suffering from high blood pressure in the past. There was no past history available of Kachraji regarding his physical condition. But assuming that Kachraji was suffering from high blood pressure, if that high blood pressure has increased as a result of shock which he received due to inhalation of poisonous gas, it could as well be said that he died as a result of inhalation of poisonous gas which increased his blood pressure resulting into an attack of paralysis which ultimately resulted in his death. Therefore, as observed by the Bombay High Court, if the employment has accelerated the death or if it could be said that the death was due not only to the disease, but 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. I, therefore, do not agree with Mr. Zaveri in his submission that there was no evidence showing that deceased Kachraji had inhaled poisonous gas and that as a result of inhalation of poisonous gas, he had suffered a stroke. In other words, I do not agree that there was no further nexus between' the stroke suffered by him and the inhalation of poisonous gas. I need not repeat the evidence referred to earlier. Suffice it to say that from the evidence it is clearly established that the deceased must have inhaled poisonous gas which gave him a shock resulting in heightening of blood pressure. It can, therefore, be said that inhalation of poisonous gas had something to do with the injury received by him on that day. As the injury was received by him in the course of his employment, this case would come within Section 3 of the Act. In the case of Bai Shakri who Narandas Maganlal v. The New Manekchowk Mills Ltd. 2, G.L.R. 23, the following principles underlying the claim for compensation were enumerated:

(1) There must be a casual connection 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 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.

In my opinion, all the four requirements enumerated above are satisfied in the instant case. In the instant case, the appellant has shown by cogent evidence that the injury received by Kachraji was as a result of inhalation of poisonous gas while he was cleaning the gutter in the course of his employment. Similarly, in the case of The Sarangpur Cotton . v. Dev Koran wdo Krishnan Mashram 8, G.L.R. 81, it was observed-

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. 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, or an application of pressure made at a moment to overcome some particular resistance. 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.

The compensation could be given in cases where though there was a pre-existing disease, the disease was not the only cause of death and where the pre-existing condition was there, but the evidence established that the work which the diseased workman was doing was likely to bring about and accelerate the manifestation of the disease and lead to his death, the claim for compensation would succeed. 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 the instant case, after Kachraji received injury, he was removed to the Civil Hospital where he was examined by Dr. Desai. It was found that he was suffering from high blood pressure. It is, therefore, not improbable that Kachraji may be suffering from high blood pressure. But merely because he may be suffering from high blood pressure, it cannot be said that he received the injury only as a result of disease from which he was suffering. Even if he was suffering from high blood pressure in the past, if the course of his employment, some act was done by him which accentuated the disease which ultimately resulted in his death, it can equally be said that he met with the accident arising out of and in the course of his employment. In the instant case both the doctors have admitted that inhalation of poisonous gas would cause giddiness. It would give mental shock which may accentuate blood pressure. Thus when the two eye witnesses who were present saw Kachraji suddenly feeling giddy and in their own words, he felt giddy because of inhalation of poisonous gas, it cannot be said that inhalation of poisonous gas had nothing to do with the stroke suffered by Kachraji on that day. A similar view has been taken by the division bench of this Court in the case of Shantaben Thakor wd/o Chandulal Hemchand v. The New Rajpur Mills Co. Ltd. 8, G.L.R. 1012.

20. Mr. Zaveri, however, urged that in the instant case, it is not merely enough to show that deceased Kachraji received the injury in the course of his employment. He submitted that it must be shown that the deceased Kachraji was a workman as defined in the Act, in the employment of both the respondents, in order to claim compensation and that his employment was for the purpose of trade or business of the employer. Mr. Zaveri urged that admittedly, Kachraji was working in the canteen which was run by respondent No. 1. There was no evidence showing that respondent No. 1 was running the canteen under contract entered into between respondents Nos. 1 and 2. He, therefore, urged that if deceased Kachraji who was working in the canteen run by respondent No. 1 met with such an accident which ultimately resulted in his death, respondent No. 2 in any case would not be liable at all because Kachraji was not working for the purpose of its trade or business. He submitted that even respondent No. 1 would not be liable because Kachraji was not a workman as defined in the Act. It may be noted at the outset that both the respondents had not pleaded before the learned Commissioner that deceased Kachraji was not a workman as defined in the Act. Whether Kachraji was a workman or not is a question of fact. It can only be decided from the evidence on record. Mr. Zaveri, however, urged that even though this point was not specifically taken in the written statements, it would be open to him to show from the evidence on record as it stands, that Kachraji was not a workman as defined in the Act. He referred to Section 2(n) of the Act which defines 'workman'. 'Workman' means any person (other than a person whose employment is not of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is

(i) x x xx

(ii) employed on monthly wages not exceeding five hundred rupees, in any such capacity as is specified in Schedule II.

Clause (ii) of Schedule II states:

The following persons are workmen within the meaning of Section 2(1)(n) and subject to the provisions of that section, that is to say, and person who is:

(ii) employed, otherwise than in a clerical capacity, in any premises wherein or within the precincts where a manufacturing process as defined in Clause (k) of Section 2 of the Factories Act, 1948 is being carried on, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, whether or not employment in any such work is within such premises or precincts and steam, water or other mechanical power or electrical power is used;

Mr. Zaveri urged that in order that Kachraji may be treated as a workman for the purpose of this Act, it should be established that he was employed otherwise than in a clerical capacity in any premises wherein or within the precincts whereof a manufacturing process as defined in Clause (k) of Section 2 of the Factories Act was being carried on. Mr. Zaveri urged that admittedly, Kachraji was working in the canteen run by respondent No. 1. It cannot, therefore, be said that Kachraji was employed in the premises where manufacturing process was carried on. He, therefore, urged that Kachraji could not be said to be a workman as defined in the Act. I am unable to agree. It may be noted that under Section 46 of the Factories Act, 1948. 'The Provincial Government may make rules requiring that in any specified factory wherein more than two hundred and fifty workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers'. It will, thus, be seen that under Section 46 of the Factories Act, the State Government will be competent to make rules requiring respondent No. 2 to open canteen for the use of its workers. This section is mandatory once the State Government frames rules to this effect. The employer shall provide a canteen or canteens for the use of the workers. Thus, respondent No. 2 who is employing more than 250 workers would be required to start a canteen for the use of the workers. It can, therefore, be said as canvassed by Mr. Shah, that running of a canteen was incidental to the business or trade of respondent No. 2. It was a statutory obligation of respondent No. 2 to run a canteen for the use of its workers. Mr. Shah urged that it was immaterial if the said canteen was run by Mills itself or it was entrusted to some one else. It was obligatory on respondent No. 2 to run a canteen in its own premises. Under Rule 72 of the rules framed by the State of Gujarat, it has been stated that:

The occupier of every factory wherein more than 250 workers are ordinarily employed and which is specified by the State Government by a notification in this behalf, shall provide, in or near the factory, an adequate canteen according to the standards prescribed in the Rules. The canteen shall be available for the use of the workers within six months from the date of such notification.

Sub-rule (10) of Rule 72 states:

The precincts of the canteen shall be maintained in a clean and sanitary condition. Waster water shall be carried away in suitable covered drains and shall not be allowed to accumulate so as to cause a nuisance. Suitable arrangements shall be made for the collection and disposal of garbage.

Even when such a canteen is maintained by a co-operative society registered under the Bombay Co-operative Societies Act, 1925, Sub-rule (3) of Rule 74 states:

Where the canteen is managed by a co-operative society registered under the Bombay Co-operative Societies Act, 1925, the occupier shall provide the initial equipment for such canteen and shall undertake that any equipment required thereafter for the maintenance of such canteen shall be provided by such co-operative society.

Thus, the initial equipment is required to be provided by the occupier. The initial requirement naturally would include a canteen building as per the measurement and specification mentioned in Rule 72 which clearly states that the precincts of the canteen shall be maintained in a clean and sanitary condition and that waste water shall be carried away in suitable covered drains and shall not be allowed to accumulate so as to cause a nuisance. Thus, the responsibility of seeing that the precincts of the canteen shall be maintained in clean and sanitary condition is on the occupier as provided in Rule 72. The combined reading of Section 46 and Rules 72 to 78 framed under the Act would clearly go to show that it is obligatory on respondent No. 2 to maintain a canteen for the use of its workers. It is immaterial whether the management of the canteen is done by the Mills itself or it is handed over to a contractor or to a co-operative society registered under the Bombay Co-operative Societies Act, 1925, as the case may be. It does not make any difference whatsoever regarding the responsibility of the Mills to run a canteen even though the management may be handed over to another person on its behalf. I do not agree with Mr. Zaveri that Sub-rule (3) envisages that when the canteen is managed by a co-operative society, the occupier has nothing to do with the same and that the occupier will not be responsible for any accident that may take place to the workers working in the canteen. In the instant case, the claimant had come out with a clear case that under Section 46 of the Factories Act and the rules made thereunder, respondent No. 2 was running the canteen where deceased Kachraji was working and in the course of his employment, he met with an accident which resulted in his death. No doubt the respondents denied that there was any contract between the respondents for running a canteen. It was stated by respondent No. 1 that it was independently running the canteen and that there was no contract between it and respondent No. 2. But the fact remains that the canteen was run in the premises belonging to the occupier-respondent No. 2. The occupier is under a statutory liability to run a canteen for the use of its workers. In my opinion, therefore, it is immaterial whether the canteen was maintained by the occupier himself or the management of the canteen was handed over to a co-operative society. Mr. Zaveri invited my attention to Rule 76 which pertains to accounts of the canteen when it is run by a co-operative society. It is stated therein that:.Provided further that where the canteen is managed by a co-operative society registered under the Bombay Co-operative Societies Act, 1925, the accounts pertaining to such canteen may be audited in accordance with the provisions of the Bombay Co-operative Societies Act, 1925.

Relying on this proviso, Mr. Zaveri urged that if the canteen is managed by a co-operative society, then it would not be within the control of the occupier in any case and the co-operative society would be liable to the officers concerned as provided in the Bombay Co-operative Societies Act, 1925. I do not agree. This proviso merely described the manner in which accounts of the society which is running the canteen should be audited. It does not in any way state that the occupier would not be responsible for the duties cast on it as provided in Section 46 or as provided in Rule 72 of the rules framed by the Government. So far as the accounts of the society running a canteen are concerned, no doubt, the same may be audited under the provisions of the Co-operative Societies Act. But that does not take it beyond the purview of the Workmen's Compensation Act read with Section 46 of the Factories Act.

21. In order that the deceased may be termed as a workman, it is not necessary that he should be working in the premises wherein the manufacturing process as defined in Section 3 of the Factories Act is carried on. It is enough if he is working in the premises where in any portion thereof manufacturing process is carried on, proved the canteen is run for the benefit of the workers engaged in the manufacturing process. In the case of Laxmibai, A.I.R. 1954, Bombay, 180 (supra), it was observed by the Division Bench of the Bombay High Court that:

It is not necessary for the purpose of satisfying the definition of 'workman' that the deceased should be working in the manufacturing process itself. All that is necessary is that he should be working in the premises in which ten or more persons are employed in a manufacturing process and he must be employed in those premises otherwise than in a clerical capacity.

I have already observed that the deceased was working in the canteen which respondent No. 2 was under a statutory obligation to maintain. It is immaterial if the said canteen was run under the direct management and supervision of respondent No. 2 or whether it was handed over to respondent No. 1 which was a co-operative society registered under the Bombay Co-operative Societies Act. It is not necessary that in order to come with the definition of 'workman', the deceased should be working in the manufacturing process itself, as observed by the Bombay High Court. In my opinion, therefore, Mr. Zaveri is not right in urging that the deceased was not a workman as defined in the Workmen's Compensation Act.

22. Mr. Zaveri next urged that in any case, respondent No. 2 would not be liable unless the canteen where the deceased was working was ordinarily a part of trade or business of the, principal. He relied on Section 12(1) of the Act which states:

Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.

Mr. Zaveri, relying on the provisions of this section urged that, in the instant case, admittedly Kachraji was working in the canteen which cannot be said to be running as ordinarily part of the trade or business of the principal viz. the Mills. Thus, if during the course of his employment in the canteen, deceased Kachraji met with the accident, the Mills by no stretch of argument could be held responsible to pay damages for the injuries received by him. I am unable to agree with him for the simple reason that it was the part of the duty of respondent No. 2 to run a canteen for the use of the workers as provided in Section 46 of the Factories Act. A statutory obligation is cast on the occupier of the premises to run a canteen for the use of its workmen. It cannot, therefore, be said that running of the canteen is not ordinarily part of the trade or business of the principal. If the principal wanted to do manufacturing process viz. running a cotton mill, employing more than 250 workers, it is incumbent on him to run a canteen as provided in the Act. In my opinion, therefore running a canteen would be ordinarily part of trade or business of the occupier. In my opinion, therefore, the principal viz. respondent No. 2 which has permitted respondent No. 1 to run the canteen would equally be liable to pay compensation for the injury received by the workman in the canteen run by respondent No. ]. Mr. Zaveri, however urged that there was no evidence showing that there was any contract between respondents Nos. 1 and 2 under which the canteen was run by respondent No. 1. In the absence of any contract, the principal cannot be said to be liable for the accident suffered by a workman. In my opinion this would be arguing in a circle. If, once it Is held that it is incumbent on the occupier to rub a canteen for the use of its workers as provided in Section 46 of the Act, it is immaterial whether the canteen was run by the principal himself or be the one else; the fact remains that the canteen Was run fit the premises Occupied by respondent No. 1 It is difficult to believe that respondent No. 1 Would be running the canteen without any agreeing express or implied between respondent Nos. 1 and 2. There is no statutory, 'any Act, for Society registered tinder the Bombay Co-operative Societies Act to run canteen in a Mill. The society no doubt is permitted to run the canteen and it would be a part of the functions of the society to run the canteen provided the said canteen is run with the permission of the occupier. The duty is cast on the occupier to run a canteen and not on the society to do so. The claimant had clearly come out with the case that the canteen was run by respondent No. 1 in the premises occupied by respondent No. 2. A contract was alleged between respondent Nos. 1 and 2 by the appellant. Naturally only such question whether such a contract exists or not and the fact about the presence of respondent No. 1 in the premises' of respondent No. 2 with its consent is within the special knowledge of the respondents only. The claimant cannot lead any direct evidence showing as to how respondent No. 1 was running the canteen and under what arrangement made between the two. If the respondents did not choose id adduce any evidence in this connection, their mere statement in the written statements denying any contractual relationship between them would not be enough. A mere statement in pleadings is no proof. It was incumbent on the respondents to step into the witness box in order to show that there was no contractual relationship between them for the simple reason that this part of the evidence was within their special knowledge. Section 106 of the Evidence Act states when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.' Thus, whether there was any contract between respondents Nos. 1 and 2 under which the canteen was run by respondent No. 1 in the premises belonging to respondent No. 2, it is within their knowledge and the burden of proving or disproving the same was on them. The claimant cannot lead any evidence showing whether any contract existed between the two or not. The learned Commissioner therefore, had clearly erred in stating that as the appellant has not led any evidence proving that the Saraspur Mills Limited has given a contract to the Saraspur Mills Co-operative Supply Society Limited to run a canteen, in the absence of any positive evidence, the principal cannot be held liable under Section 12 of the Act to pay compensation to the dependents of deceased Kachraji. With respect to the learned Commissioner, his observations are absolutely contrary to the provisions of law. The learned Commissioner seems to have lost sight of Section 106 of the Evidence Act which clearly enjoins upon the respondents to lead evidence in this connection. That apart, the provisions of the Workmen's Compensation Act cast a duty on the Commissioner himself to call for the report of the employer if the case of accident comes within his knowledge in any way. Even if no claim petition was filed before the Commissioner By Jivatben and if the fact of the accident had come within the knowledge of the Conrftiissioflef, it was his botinden duty to call for the report of the employer and decide the case of the accident. If he came to the conclusion that the accident had taken place during tile course of the employment and that the workman was entitled to compensation, it was his duty to ask the employer to deposit the amount of compensation as per the provisions of the Act and apportion the same amongst the dependents. Instead of discharging his statutory obligation, the learned Commissioner merely depended on the evidence led by the poor widow. The learned Commissioner could have called for the report of the respondents and asked for their explanations how respondent No. 1 was running the canteen The learned Commissioner could not have ignored the provisions of Section 43 of the Factories Act which enjoins on respondent No. 2 to run a canteen for the use of its workers. The learned Commissioner could have asked for the respondent No. 2 as to how respondent No. 1 was running the canteen in the premises occupied by respondent No. 2. Instead of doing his duty, the learned Commissioner threw the burden wrongly on the claimant and held that as the claimant has not led the evidence to prove the contract, principal was not liable to pay compensation. With respect to the learned Commissioner, his finding is absolutely erroneous and contrary to law.

23. Mr. Zaveri referred to the case of Rabia Mahomed Tahir v. G.I.P. Railway 31, B.L.R. 211, wherein the Division Bench of the Bombay High Court held negativing the liability of the G.I.P. Railway under the Act-

(1) that the setting up of an overhead electric cable for the purpose of transmitting electrical power to the railway was not ordinarily part of the trade or business of the G.I.P. Railway;

(2) that in constructing the overhead electric cable, the G.I P. Railway was exercising and performing the power and duties conferred upon it by statute; and

(3) that the G.I.P. Railway was a department of the Government within the meaning of Section 2(2) of the Act.

In this case, the observations of Collins L.J. in the case of Pearce v. London and South Western Railway were quoted by the Bombay High Court. Those observations are as under:

The primary business of a railway company is to carry passengers and goods. The erection of stations does not appear to me to be any part of, or process in, that business. I am not aware of any legal obligation upon railway companies, apart from any special obligations imposed by particular Acts, to erect railway stations at intermediate places. It is a matter in their discretion.

Thus, as the court had come to the conclusion that it was not a legal obligation of the railway, company to construct ever-head electric cable and that its primary business was to carry passengers and goods, the court held that the railway will not be liable for the injury received by the workman even though it may be in the course of their employment. In the instant case before us, already pointed out earlier respondent No. 2 was under a statutory obligation to run a canteen for the use of its workers and therefore if any person employed in that canteen met with an accident and ultimately died as a result of the accident received by him during the course of his employment, his case will be covered by the 'Workmen's Compensation Act.

24. Relying on the ratio of the Bombay case referred to above, Mr. Zaveri urged that even though G.I.P. Railway was laying down electric over-headed cable for the purpose of transmitting electric power to the railway, the Bombay High Court had held that it was not ordinarily a part of the trade or business of G.I.P. Railway. According to the Bombay High Court, the ordinary duty was to carry passenger or goods traffic. Thus, Mr. Zaveri urged that in the instant case, ii cannot be said that running of the canteen was ordinarily a part of the trade or business of respondent No. 2. 1 have sufficiently dealt with this aspect of the case and have already held that it was a statutory duty cast upon respondent No. 2 to run a canteen for the use of its worker as provided in Section 46 of the factories Act and therefore, it would not be open to respondent No. 2 to urge that running of the canteen was not accordinarily part of trade or business. In my opinion, therefore, this case will not help the respondents. Similarly, the case of Karnani Industrial Bank Ltd. v. Ranjan : AIR1933Cal63 will not help the respondents. Therein, it was stated that:

Section 12 contemplates that for a person to be liable for compensation it is necessary that the execution of the work in the course of which the workman is injured should be an ordinary part of that person's trade or business. The general notion of Section 12 is that, if it is ordinarily part of the business of a person to execute certain work, then ordinarily he will do that work by his own servants; he is not to escape liability for any accident that takes place merely by interposing a contractor, the contractor undertaking to do what ordinarily the principal would do for himself-

With respect, I am in entire agreement with the observations made therein. In order that the dependents of the deceased workman maybe entitled to receive compensation, it should be proved that execution of work in which the workman is engaged should be ordinarily part of the trade or business. There can be no quarrel with the principal enunciated therein. I have already held that running of a canteen was part of the trade or business of respondent No. 2 as provided in Section 46 of the Factories Act. In such, a case, it is immaterial whether the canteen was run by the Mills itself or by a co-operative society. As observed by the Calcutta High Court, in above case, 'the compeller is not to escape his liability for any accident that takes place merely by interposing a contractor, the contractor undertaking to do what ordinarily the principal would do for himself.'

25. The other cases referred to by Mr. Zaveri are on the same point and I need not refer to them here. Suffice it to say that Mr. Zaveri would have been on a strong ground if under Section 46 of the Factories Act, it was not incumbent on respondent No. 2 to run a canteen. In that case, have very well urged that respondent No. 2 would not be liable for the he could accident received by the workman working in the canteen run by a co-operative society. But in the instant case, it was the part of the duty of respondent No. 2 to run a canteen and instead of running the canteen itself if it had permitted respondent No. I run the canteen, it would be equally liable as principal as per Section 12 of the Act. In my opinion, Mr. Zaveri is not right in submitty that respondent No. 2 would not in any way be liable to pay compensation to the dependents of the deceased workman who was working with respondent No. 1 at the relevant time.

26. The claimant has preferred a claim for Rs. 7.000/-. It is disputed before me that the monthly wages earned by the deceased Kachraji ranged between Rs. 100/- to Rs. 200/-. Thus as mentioned in the schedule appended to the Act, the dependents of the deceased would be entitled to receive Rs. 7,000/- as compensation for the death of Kachraji in an accident arising out of and in the course of his employment.

27. In the light of what has been stated above, it is clear that the order passed by the learned Commissioner cannot be sustained. His Border is clearly erroneous and contrary to the provisions of law. In the result, the appeal succeeds. The order passed by the (earned Commissioner dismissing the claim petition is hereby set aside an the claim for Rs. 7.000/- is decreed in full. The learned Commissioner is directed to ask respondents to deposit the amount of Rs. 7,000/- with Interest at 6% per annum as provided in Section 4A of the Act, from the date of the claim petition till payment. He should apportion the said amount Amongst the present appellants according to law. The respondents to pay cost of the appellants of this appeal and also in the petition before the learned Commissioner and bear their own.


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