1. This is an appeal preferred by the Madras State Electricity Board against the order dated 25 July 1962, of the Additional Commissioner for Workmen's Compensation, Madras, awarding compensation in a sum of Rs. 3,500 to the respondent, whose son met with an accident on 16 December 1959, in the dam construction in Niligris district, under the appellant, when he was working in the job of loading and unloading. He was taken to the hospital where he died on 18 December 1959, as a result of the accident.
2. The report of the supervisor was that the deceased died of sickness, in the ordinary course, while he was in-patient in the hospital and did not meet with an accident while he was on duty. The report of the medical officer of the hospital where the deceased was admitted and treated was also filed in the case. The doctor stated that the deceased was complaining of chest pain and giddiness. He found some tenderness over the substernal area of the chest and lung signs in the form of rales and rhenche. Clinically, his heart was found to be enlarged. When he enquired the deceased about the pains, the deceased told him that he had occasional attacks of substernal pains. The doctor stated that the deceased died as a result of heart failure. He stated in his evidence that the disease, namely, enlargement of heart, might have been aggravated due to the physical over-strain while lifting stones. In his answer to the cross-examination, the doctor stated that even if the worker was taking complete rest he would have died as a result of his disease, that the employment in the case of the deceased was not a contributory cause for the death and that the employment did not accelerate his death.
3. Dr. Selvarajan, who was examined on the side of the respondent to give expert opinion, stated that heart disease would get aggravated by undue strain in the body and that excessive strain on an already diseased heart would accelerate the disease. He farther stated that loading and unloading work was a job involving strain and that even a slightest physical or mental effort might accelerate heart disease.
4. On the evidence before him, the Additional Commissioner for Workmen's Compensation held that the deceased died as a result of an injury he received due to an accident arising out of and in the course of his employment under the Electricity Board and that the amount of compensation payable would be Ra. 3,500. Against this order, the Madras State Electricity Board has preferred the appeal.
5. Generally' speaking, the aggravation, acceleration or lighting up of a pre-existing or latent infirmity or weakened physical condition by an accidental personal injury within the Compensation Act may constitute a disability of such a character as to entitle the injured employee to compensation even though the accident would not have produced the same effect in or caused injury to, a perfectly normal, healthy individual or even an average employee. The injury is of a compensable nature, when the injury produces some disease which aggravates or accelerates or lights up a precluding disease. Acceleration or aggravation of an employee's heart condition, thereby causing death or disability, may constitute a compensable injury within the meaning of the Workmen's Compensation Act. The sudden manifestation of the heart condition from the effect of strain or over-exertion at work constitutes an accidental injury within the meaning of the Act. In all cases, it must be determined whether the real cause of the injury is the disease or the hazard of the employment. The conditions of employment are the proximate cause of the injury where such conditions bring an attack of heart trouble resulting in death. Compensation is not made to depend on the condition of health of the employee or on his freedom from liability to injury through a constitutional weakness or latent tendency. It is not necessary, for an employee to recover compensation, that he must have been in perfect condition of health at the time he received the injury or free from disease. Compensation is awarded for an injury which is a hazard of the employment and it is the hazard of the employment acting on the particular employee in his condition of health and not what that hazard would be If acting on a healthy employee or on the average employee.
6. Every workman brings with him to his employment certain infirmities, and while the employer is not the insurer of the health of his employees, he taken them as he finds them.
7. In Clover, Clayton & Co., Ltd. v. Hughes 1910 A.C. 242, a leading case on the subject a workman suffering from serious aneurism was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. It was found upon conflicting evidence that death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal. Lord Loreburn, L.C., observed at p. 247 thus:
In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing, it would probably have come all the same, or whether the employment contributed it. In other words, did he die from the disease alone or from the dices and employment taken together, looking at it broadly Looking at it broadly, I say, and free from over-nice conjectures, was it the disease that did it, or did the work lie was doing help in any material degree?
8. The majority of their lordships held that there was evidence to support the finding, and that it was a case of personal injury by accident arising out of and in the course of the employment. But according to the dissenting opinion of Lord Atkinson, the death of the deceased in that case was no more an accident than if, had he been a butler, he had died walking slowly up the stairs of the house in which he served, or, had he been a coachman he had died while slowly mounting to his box. And according to another dissenting Lord (Lord Shaw of Dunfermline), the workman did not die owing to injury by accident but died of heart disease, and that the death was caused not by any injury by accident, but simply by the disease under which he unhappily suffered.
9. Section 3 of the Workmen's Compensation Act provides that, if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation. The expression, 'out of and in the course of his employment' has been the subject of interpretation in numerous cases. There is also the expression ' accident' in the section. The basic and indispensable ingredient of ' accident' is unexpectedness. Accident has been denned in Fenton v. Thorley & Co., Ltd. 903 A.C. 443, as. an unlooked-for mishap or an untoward event which is not expected or designed.
A second ingredient, however, has been added in most judicial decisions. The injury must be traceable, within reasonable limits, to a definite time, place and occasion or cause, Larson in his Workmen's Compensation Law, Vol. I, while dealing with heart cases, observes at p. 548:
In the heart cases, the issue almost from the start has centred about the question whether there was anything unusual about the exertion producing the attack or the circumstances surrounding it.
10. Tracing the course of the decisions, Larson cited the decision in Massee v. Jamas H. Robinson Co. 301 N.Y. 34, where the following statement has been made (p. 551):
A heart injury such as coronary occlusion or thrombosis when brought on by over-exertion or strain in the course of daily work is compensable, though a preexisting pathology may have been a contributing factor.
11. Larson concluded thus, again quoting from a judgment (pp. 552 and 553):. However, whether an event is to be found an industrial accident is not to be determined by legal definition but by commonsense view-point of the average man ....Hence the issue almost invariably falls within the realm of fact, and if the facts and circumstances austain, upon any reasonable hypotheses, the conclusion that an average man would view the event as accident, then the determination of the board is final....Applications of this principle, though often not expressed, are inherent in many decisions.
12. The principle in heart cases seems to be that, if death or disability is due to heart attack which resulted from the exertion of the employee in the performance of the duties of his employment, compensation should be awarded. If death of an employee is brought about by an injury due to some mishap, or accident, happening during the course of his employment, the fact that deceased had a chronic ailment which rendered him more susceptible to such injury than an ordinary person would be, will not defeat the right to compensation. The fact that the injury and the pre-existing disease combined to produce the disability does not prevent the injury being compensable in nature and it is not necessary to prove that the injury accelerated or aggravated the disease or that the accident complained of was a contributory cause to the injury. If the accidental injury suffered in the course of his employment is the proximate cause of the employee's death, the previous physical condition is unimportant. Bearing these principles in mind, I have to decide in the instant case whether the deceased died of heart attack arising out of and in the course of his employment.
13. It is true that, when the deceased was admitted in the hospital, he was brought with the history of acute pain in the chest and giddiness. He was already suffering from heart disease before the accident happened in the course of his employment. On the fateful day, while he was doing the work of loading and unloading heavy stones, he suddenly felt some pain in the chest. He had complained of similar pain in the chest on previous occasions while working on the spot. That day, he was removed to the hospital where he died two daya later. In Laxmibai Atmaram v. Bombay Port Trust 1954 I L.J. 614, the deceased was a watchman employed by the porb trust. The hours of his duty were 7 p.m. to 7 a.m. At 1 a.m. on 21 August 1951, the deceased complained of pain in his cheat and was asked to lie down. His condition deteriorated and he died in the morning. The medical evidence showed that the deceased was Buffering from heart disease and that the death was brought about by the strain caused by the deceased being on his legs for a certain period of time. It was contended that death did not arise in the course of the employment. The learned Judge observed ('at pp. 616 617):
The question, therefore, that we have to consider is whether there was any causal connexion between the death of this workman and his employment....But it is equally clearly established that if the employment is a contributory cause, or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased...
14. In that case compensation was awarded to the dependant. In Parwatibai v. Rajkumar Mills 1959 I.L.J. 65, the deceased was working as a substitute for a jobber and his work was to mount a belt on a machine and start it. While belting the machine, he received a jerk and a shock and fell down and shortly afterwards died of heart failure. The Commissioner found himself unable to hold that the deceased's death was due to any personal injury caused by accident arising out of or in the course of his employment. On appeal, the learned Judge agreed with the finding of the Commissioner and he purported to follow the principle laid down by Chagla, C.J., in the case just abovementioned, in the following words (at p. 69):..The authorities again are clear that if the workman died as natural result of the disease from which be was suffering, then it could not be said that his death was caused out of the employment. The authorities also have gone to this length that if a workman is suffering from a particular disease and, as a result of wear and tear of his employment, he died of that disease, no liability would be fixed upon that employer.
15. In the case before the Madhya Pradesh High Court, in 1959I.L.J. 65 (vide supra) all that was known was that the deceased workman died of heart failure during his employment and that he was suffering from heart disease. That was held not sufficient to show that he died of heart disease to which his employment was a contributing factor. In Bai Shakri v. New Manekchowk Mills Co. Ltd. 1961 I L.J. 585, the deceased workman was employed In the weaving department of a mill. Before starting his work, he had gone to see a friend in another department. Then he got a heart attack and was removed to a hospital where he was an in-patient for about a month. Then he left his employment and died after some time. Justice Shelat held that, in the circumstances, it could not be said that the workman died as a result of the injury caused by accident arising out of and in the course of his employment. The learned Judge also laid down the following principles as emerging from decided cases (p. 591):
(1) There must be a causal connexion between the injury and the accident and the accident and the work done in the course of employment.
(2) The onus is upon the applicant to show that it was the work and the resulting Btrain 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 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.
16. In Bai Diva Kaluji v. Silver Cotton Mills, Ltd., Ahmedabad 1956 I .L. J. 740, a weaver who was working in the first shift which started at 7-30 a.m. collapsed at about 3-30 p.m., in the weaving department. He was removed to the hospital, some stimulants were given to him, he became conscious, went home and that very night he died. The evidence of the doctor wag that he died of heart failure and work accelerated the death. The Commissioner found that the deceased did not die of an injury or accident arising in the course of his employment. But Chagla, C.J., on appeal, observed at pp. 741-742:
But there are occasions when the Court is compelled to draw inferences which naturally and inevitably arise from such evidence as there is on the record. The mere paucity of evidence should not relieve the Court of its obligation to come to a conclusion on necessary and material issues . . . If Kaluji was suffering from heart disease, then the fact that he worked for eight hours on a hot, day must obviously have caused strain and accelerated his death. In our opinion, therefore, the applicant has established that the deceased died of injury by accident arising out of and in the course of his employment.
17. In Imperial Tobacco Co. (India), Ltd. v. Satona Bibi 1956 I .L.J. 35, the deceased was a workman under the Tobacco Co. and was employed as a sweeper or floor-boy in their packing department. He was required to appear before the medical officer of the company before resuming duty after his sickness. The workman came on a particular day and he was asked to come and report himself after two days. He was again asked to come and report after three days. On the last occasion, when he went he was in a very bad condition and had to be helped to get out of his conveyance and indeed carried on the shoulders by some workers. The doctor found him in a dying condition and the worker died soon afterwards. The question was whether the stress and strain of the journey had anything to do with bringing about or accelerating the death. The learned Judges of the Calcutta High Court observed (p. 39):
But if looking at the whole body of facts, it can be drawn as a fair inference and without over-nice conjectures that an act done in carrying out the conditions of the employment caused, in part at least, a physiological injury which resulted In or accelerated the death, the employer will be liable for compensation because one of the causes of the death arose out of the employment under him and by reason of the condition of that employment.
18. On a review of the entire case-law on the subject I am of opinion that it is desirable and in accordance with the general rule that the Workmen's Compensation Act should be broadly and liberally construed, in order to effectuate their evident intent and purpose, in the application of the provisions which govern the nature and determination of the injuries for which compensation maybe had. Courts should favour adoption of liberal construction of the words 'by accident arising out of and in the course of his employment.'
19. In the instant case, on the evidence I hold that the workman died of an injury arising out of and In the course of his employment. The order of the Additional Commissioner for Workmen's Compensation is unassailable. The quantum of compensation is just and reasonable, in the circumstances of the case. The appeal is dismissed. There will be no order as to costs.