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Chillu Kahar Vs. Burn and Co. Ltd., Howrah - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 110 of 1951
Judge
Reported inAIR1953Cal516,57CWN149,(1953)IILLJ202Cal
ActsWorkmens' Compensation Act, 1923 - Sections 1, 3, 10 and 19
AppellantChillu Kahar
RespondentBurn and Co. Ltd., Howrah
Appellant AdvocatePhanindra Kumar Sanyal and ;Jitendra Mohan Sen Gupta, Advs.
Respondent AdvocateNalini Kanta Mukherjee, Adv.
DispositionAppeal allowed
Cases ReferredPetschett v. Preis
Excerpt:
- .....of cases such affection would not be caused. when it is in fact caused in an individual, it is caused accidentally and is thus the result of an accident. 19. in my view, the weight of authorities, particularly of recent date, is in favour of the view which i have indicated, and i prefer to adopt it in favour of the contrary view contended for by the respondents on the strength of certain older decisions. i accordingly hold that the appellant sunered a personal injury, namely, the affection of his eyes, caused to him by an accident, namely, the successive assaults on his eyes by the high light of the furnace and the aborption on each occasion of ultra violet rays, causing in theircumulative effect, the injury. the third element, namely, arising out of and in the course of employment,.....
Judgment:

Chakravartti, C.J.

1. This appeal raises an important question under the Workmen's Compensation Act on which, I confess, I have not found it easy to come to a satisfactory conclusion.

2. The appellant, Chillu Kahar, was a workman under the respondents, Messrs. Burn and Company Limited, but in what exact capacity he was employed is not clear. The respondents alleged that he was a hammerman, but the appellant denied that allegation, although subsequently he appears to have admitted it. His positive case, however, is that his duty was to 'join iron into the furnace and to take it out on opening the door of the furnace'.' The respondents' case that he was a hammerman and worked at some distance from the furnace probably means that his duty was to beat heated pieces of iron and steel into shape. It may well have been that the appellant was a hammerman, but he was himself required to throw into the fire and draw out the pieces of iron and steel which he was required to beat up. Unfortunately, there is no clear find-ing on the matter and the learned Commissioner does not seem to have realised the necessity of arriving at a clear finding.

3. Be that as it may, the appellant's case is that the duties of his job were such that his eyes were exposed to the glare of the furnace and during the twenty years that he had served the respondents, that exposure had slowly impaired his eyesight till a crisis came on 9-3-1950, when there was a sudden flash which completely blinded him in both of his eyes. It was on the footing of such continuous exposure to high light and the particularly intense flash on 9-3-1950, with the effect of completely blinding him, that the appellant based his claim for compensation.

4. The defence of the respondents was, as I have already stated, that the appellant had been a mere hammerman. Their further case was that the defect of his eyesight was due merely to old age. Besides stating these two facts the written statement contained no other averment. It ended up with the submission that the case of the appellant was a purely speculative one and was liable to be dismissed.

5. The record of the case on which we have to decide the appeal is in an extremely unsatisfactory condition. Evidence was not led on material points or if led, ,not properly recorded. Such record as the learned Commissioner made is extremely scrappy in character and deals only with superficial matters. Nevertheless, the parties agreed that we might give our decision on the findings of the learned Commissioner, as they were.

6. The findings of the learned Commissioner are, (a) that the appellant had lost 50 per cent of his eye-sight, (b) that such partial loss of eyesight had not been caused by old age, but was the result of continuous exposure to the high light of the furnace in the course of the appellant's employment under the respondents and (c) that nothing extraordinary had happened on 9-3-1950, which in any way aggravated' the malady.

7. Having come to the findings which I have summarised above the learned Commissioner proceeded to consider whether the facts found by him entitled the workman to claim that he had suffered an accident which had resulted in an injury. The answer, the learned Commissioner thought, must be in the negative. He pointed out that it was not sufficient for the appellant to establish that he had lost his vision in the course of his employment under the respondents, but he was required also to prove that the loss had been caused by an accident. As regards accident, the learned Commissioner proceeded to observe that it must be an accident which took place On a particular day and consequently as he had found that the allegation of a particularly intense flash on 9-3-1950, had not been proved, the appellant could make no claim on the basis of an accident, although his eyes might gradually have reached their present condition on account of the continuous action of the glare of the furnace upon the retina. It appears that the decision of the Court of Appeal in England in the case of -- 'Fitzsimons v. Ford Motor Co. Ltd.', (1946) 1 All E R 429 (A), was cited before the learned Commissioner, but he held that the principles of that case did not apply. Accordingly, the learned Commissioner dismissed the appellant's application.

8. In support of the appeal, it was contended by Mr. Sanyal that the learned Commissioner was wrong in holding that the appellant was bound to fail unless he could prove a definite accident which had taken place on a particular dayand which had resulted in the injury of which he complained. According to Mr. Sanyal, not merely a single accident but a succession of accidents also were accidents contemplated by the Act and if an injury, physical or physiological, was caused by a continuing series of successive accidents, each small in character but resulting in their cumulative effect in the injury of which the workman complained, there would be an accident to furnish a proper foundation for the claim. That principle, Mr. Sanyal continued, had been laid down by the English Court of Appeal in the very decision cited before the learned Commissioner, but its effect had not been correctly appreciated. In addition to that decision Mr. Sanyal also referred us to the decision of the House of Lords in the case of -- 'Burrell & Sons Ltd. v. Selvage', (1921) 126 L. T. 49 (B), on which the decision of the Court of Appeal was wholly based.

9. On behalf of the respondents, our attention was drawn to a number of cases which had no bearing on the point involved in the present case. Those citations may, therefore, be left out of account. But what was contended on the merits of the case was that an accident, in order to be a proper foundation for a claim under the Workmen's Compensation Act, had to be a precise and definite occurrence which had taken place on a particular and identifiable day, so that in respect of it a notice could be given under Section 10. A succession of tiny but unidentifiable accidents could never, therefore, be an accident within the meaning of the Act, since none of them in itself caused the injury as required by Section 3 of the Act since with respect to none of them, taken individually, a notice under Section 10 could possibly be given. It was accordingly argued that cases of gradual affection of the general health or an organ of the body by the action of a series of successive accidents were outside the contemplation of the Workmen's Compensation Act.

10. The question is one which as I have already said, is not easy to decide and the decisions found in the books do not certainly render the task easier. Ordinarily, one should think that an accident connotes something abnormal or out of the way. I concede that an accident must be an accident from the point of view of the workman and if it is an occurrence which was accidental in the sense of being unexpected or undersigned, so far as he was concerned, the necessary elements of an accident would be present. But, on the other hand, one cannot forget that the duties of several kinds of employment involve in their very nature certain incidents which the workman going for such employment accepts as the normal risks of his job. One should therefore, think that if in the course of the employment nothing happens to the workman except the incidents which are inherent in the duties of the job, he would not be entitled to compensation on the basis of an accident, for the simple reason that the normal incidents of the duties of the job must have been taken into account in adjusting the wages and could not be compensated for again. From the commonsense point of view, therefore, it would seem that an accident could be said to occur only when something other than the normal incidents of a job came to happen and that resulted in an injury.

11. But the cases have travelled far away from the plain man's point of view and refinements of various degrees of subtlety have been introduced from time to time. It is interesting to notice that some of these refinements appeared so baffling to the English Court of Appeal on one particular occasion that the learned Lord Justicesconsidered it expedient to leave the definition of 'accident' alone and to proceed to decide the case before them on the simple ground that there having been no particular or identifiable occurrence on any particular day with respect to which a notice could be given, there was no accident within the meaning of the Act. I am referring to the decision in -- 'Steel v. Cammell, Laird & Co., Ltd.', (1905) 2 K. B. 232 (C), decided by Collins M. B., Mathew and Cozens-Hardy, L. JJ. Collins M. R. referred to the definition or rather the exposition of 'accident', as given by Lord Halsbury in the case of -- 'Hamilton, Fraser & Co. v. Pandorf Co.', (1887) 12 A. C. 518 (D), where it had been stated that- an idea of something fortuitous and unexpected was involved in the word. In a later case, decided by the House of Lords in -- 'Penton v. Thorley & Co.', (1903) A. C. 443 (E), Lord Macnaghten expressed his regret that the word 'fortuitous' should have been applied to the term 'injury by accident' in the Workmen's Compensation Act and his Lordship thought that the element of haphazard should be excluded from the concept of accident. Faced with the definition given by Lord Halsbury and the criticism 'of that definition made by Lord Macnaghten, Collins M. R. observed that if he was to conceive of an accident from which the element of haphazard was to be eliminated, he was required to perform a feat beyond his powers and therefore he would decide the case as man in the street. This conflict of opinion as to what the concept of accident really comprises has grown with the passing of time and is no longer limited to whether an element of haphazard is or is not involved. Of the many points on which the decisions in the books speak in two voices, the one before us is not the simplest.

12. The facts in the case of -- '(1946) 1 All E. R. 429 (A)', on which Mr. Sanyal relied were that the workman concerned was employed as a rotary fettler and his work consisted in holding, tightly gripped in the left hand, a hand machine, which was electrically operated and vibrated 2,800 revolutions a minute, whilst with his right hand he pressed it against the material to be cut, using the weight of his body to increase the pressure. The performance of the duties of a rotary fettler produced in the workman the condition known as 'Raynaud's disease' and the medical evidence was that each vibration caused by the rapidly rotating instrument was a tiny blow to the appellant's hand and arm, transmitted to the nerves causing small damage to their tissues, and untimately cutting off the flow of blood needed to keep the hand in a healthy condition. On those facts, the Court of Appeal held that the principles laid down by the House of Lords in the case of -- '(1921) 126 L. T. 49 (B)', applied. The facts in 'Burrell's case (B)', were that a young girl, employed as a finisher of shell-adapters subtained in the cross of her work abrasions on her hands from day to day and those ultimately resulted in blood-poisoning, leading to arthritis. The House of Lords held that the injury had been caused by accident and the accident was no less accidental because it occurred on a series of occasions instead of one. In their Lordships' view, even if a disease or injury was not due to one specific or definite accident but to a series of accidents, each one of which was specific and ascertainable though its actual influence and the resulting illness could not be precisely fixed, the disease or injury would be one caused by an accident and the workman would be entitled to the benefit of the statute. The Court of Appeal thought that in the case before them also there had been aseries of accidents, although the precise effect of each could not be ascertained and as those accidents in their cumulative effect had caused the ruination of the workman's nerves, there was an accident within the meaning of the Act as explained by the house of Lords. The Court brushed aside somewhat abruptly three of its own earlier decisions on the ground that they were inconsistent with the decision in Burrell's case.

13. Mr. Sanyal contended that he was entitled to invoke the principles laid down by the House of Lords and applied by the English Court of Appeal in aid of the workman in the present case. On behalf of the respondents, our attention was drawn to the case of -- 'Williams v. Guest, Keen & Nettlefolds, Ltd.', (1926) 1 K. B. 497 (F), one of the cases decided by the English Court of Appeal which that Court in 'Fitzsimons's case (A)', declined to follow. It is unfortunate that the Court of Appeal should not have paid greater attention to its own earlier decisions, at least to the case of -- 'Williams v. Guest, Keen & Nettle-folds', (F), because in that case the Court had attempted to distinguish the decision of the House of Lords in -- '(1921) 126 L. T. 49 (B)'. Technically, we are not bound by the decisions of either the House of Lords or the Court of Appeal and if the reasoning of the earlier decisions of the Court of Appeal appeared to us to be the better reasoning, there would be nothing to prevent us from following those decisions rather than the later decision of that Court or the decisions of the House of Lords. Still, however, if the facts of the present case bring it fairly and squarely within the framework of the facts of either the later case before the English Court of Appeal or the case decided by the House of Lords, we should certainly be slow not to follow those decisions of high authority.

14. Before proceeding further, I may dispose of a special point taken on behalf of the respondents. It will be remembered that their learned Advocate contended that since Section 10 required a notice of the accident to be given, an accident within the meaning of the Act could only be an occurrence of a precise and identifiable nature which took place on a particular day. That argument is not unfamiliar in cases under the Workmen's Compensation Act and I have already pointed out that the Court of Appeal in England gave effect to it, almost in despair, in the case of -- '(1905) 2 K. B. 232 (C)'. But as pointed out by Atkin L. J., as he then was, in -- '(1926) 18 B. W. C. C. 535 at p. 546 (F)', that argument was disposed of by another decision of the House of Lords in --'Innes or Grant v. Kynoch', (1919) A. C. 765 (G). That was a case where a workman contracted blood-poisoning from a kind of germ which was frequently to be found in bone dust that he had to handle in the course of his employment and system by some crack in the skin. Dealing with that state of the facts, Lord Birkenhead observed that although an accident must be a particular occurrence which happened at a particular time, if it was to be an accident at all, it was not necessary that the workman should be able to locate it in order to succeed in his claim. That, if I may say so with respect, seems to me to be good reason and a good answer to the argument drawn from the necessity of notice and accordingly I would hold that Section 10 in no way makes it impossible to hold a succession of accidents to be an accident within the meaning of Section 3.

15. Reverting now to the principal question in the case, I would repeat once again that it is extremely difficult to say positively, on the merits,whether the facts of a case of the present nature do or do not disclose an accident. It is true that a series of tiny accidents, each producing some unidentifiable result and operating cumulatively to produce the final condition of injury, have been held to constitute together an accident within the meaning of the corresponding English Act. At the same time, there are numerous cases in the books, almost of equal authority, which have taken the view that no accident can properly be said to be involved in such facts. To take but three cases nearest in their facts to the present case, paralysis caused by riding a carrier tricycle over the space of many years which imposed a strain on the nerves of the leg, has been held not to be the result of an accident within the meaning of an accident -- 'Walker v. Hockney Brothers', (1909) 2 B. W. C. C. 20 (H) eczema caused gradually by exposure to fumes or splashes of chemicals has also been held to be not due to an accident as contemplated by the Act -- 'Evans v. Dodd', (1912) 5 B. W. C. C. 305 (I); and, lastly, dermatitis caused in a barber's assistant who had to handle shampooing materials has also been held to be not due to an accident -- 'Petschett v. Preis', (1915) 31 T, L. R. 156 (J). I should think that it could well be said in the first of the cases to which I, have referred that the nerves of the workman's leg suffered a series of tiny accidents, just as in the case dealt with by the Court of Appeal in -- '(1946) 1 All. E. B. 429 (A). So also could, I imagine, a succession of tiny accidents be made out in the other two cases. It is therefore hardly possible to say that the principle which found with the Court of Appeal in the case relied on by Mr. Sanyal has been uniformly followed, or that any particularly impressive reason can be given in support of the conclusion adopted.

16. Reading the reports in the books, it is impossible to avoid the feeling that a desire to assist a workman in distress, who has undoubtedly suffered from causes arising out of his employment, has often led to a stretching of the language of the statute. Even in the cases where the decision was in favour of the workman, the observations of the learned Judges make it perfectly clear that they felt the pressure of reason on the other side and perhaps decided in favour of the workman in pursuance of what they conceived to be the policy of the Act. Mr. Sanyal pointed out, and in my opinion rightly, that with the progress of the times, the conception of the circumstances in which the workman is entitled to compensation has widened and become more and more liberal. Even if, therefore, the view taken by the highest courts in recent times, on facts which are more or less similar to the facts one has to deal with, be a view which only a stretched construction of the Act can bear, it will not be wrong to follow it so long as it is not something violently opposed to fundamental principles.

17. That takes me to what the actual facts in the present case are. Unfortunately, the learned Commissioner considered it sufficient to express his finding in terms of the Act and say that the workman lost his vision in the course of his employment under the respondents. It is much to be regretted that the court, charged with the duty of finding facts, should not find them as they ought to be found, but should merely lift propositions from the statute itself and put them either in the affirmative or in the negative as its findings. It was necessary in the present case for the learned Commissioner to find affirmatively what actually the duties of the workman wereand in what manner the causes arising out of his duties had impaired his eyesight. He has not even attempted the task, but merely said that the affection of the appellant's eyes was not due to old age, but was due to causes traceable to the performance of his duties. In those circumstances, we have to go behind the judgment of the learned Commissioner to the evidence in the case and the best evidence is that of the appellant's doctor who is a qualified eye specialist. In fact, this evidence does not appear to have been seriously challenged. According to the doctor, the appellant is suffering from retrobulber optic neuritis. His opinion is

'this condition can devolve if a man works in strong artificial light for a long time. There is absorption of ultra violet rays if a man works in a strong artificial light. This process goes on increasing gradually leading to destruction of tissue fibres'.

And further :

'In this case trauma is from strong rays of the artificial light'.

18. The substance of the medical evidence therefore is that in the course of the performance of his duties, the eyes of the appellant were exposed to the glare of the furnace and on each occasion they were exposed they were struck by ultra violet rays which they absorbed. The case therefore can be said to be akin to the case before the House of Lords, where the girl suffered tiny cuts on successive days in the course of cleaning the shell and each time she suffered a cut, she imbibed some poison, or to the case before the Court of Appeal where, each time the machine vibrated, some damage was caused to the nervous system of the workman. The case may even be said to be akin to those cases where the workman imbibed or assimilated some foreign matter into his system in tiny measures through a long course of days, but all hi the course of his employment. Applying the principles applied in the type of cases to which I have referred, it can I think be said in the present case that throughout the period of the workman's service, whether it was twenty years as he contended, or mere seven years as the respondents alleged, there were successive assaults of high light on his eyes and in the case of each assault, his eyes absorbed some ultra violet rays which impaired and affected his vision in slight imperceptible degrees, till at last the gradually worsening condition reached a stage of a serious defect of vision. The accident in this case would therefore be the sum total of the assaults on the retina of the workman's eyes on the daily occasions when the high light struck them and the injury would be the final condition of his eyes, although it was reached by slow degrees. It would also perhaps be an accident in the popular sense, because when one gazes upon fire or on strong light, one does not expect that any affection of his eyes would be caused, and probably in the majority of cases such affection would not be caused. When it is in fact caused in an individual, it is caused accidentally and is thus the result of an accident.

19. In my view, the weight of authorities, particularly of recent date, is in favour of the view which I have indicated, and I prefer to adopt it in favour of the contrary view contended for by the respondents on the strength of certain older decisions. I accordingly hold that the appellant sunered a personal injury, namely, the affection of his eyes, caused to him by an accident, namely, the successive assaults on his eyes by the high light of the furnace and the aborption on each occasion of ultra violet rays, causing in theircumulative effect, the injury. The third element, namely, arising out of and in the course of employment, presents no difficulty, since the learned Commissioner has found that the exposure to the high light was caused by the appellant working under the respondents. The result of the above finding is that this appeal must be allowed.

20. There remains then the further consideration as to what the amount of compensation would be. The workman originally claimed only a sum of Rs. 17-8-0 per month, but later on substituted for that claim a claim of a consolidated amount of Rs. 1,470/-. It is admitted by the learned Advocate for the respondents 'chat if the appellant's claim is allowed, he cannot dispute the figure of the compensation money, since it is in accordance with the schedule.

21. In the result, therefore, this appeal is allowed, the judgment' and the order of the Commissioner are set aside and the appellant's application for compensation succeeds. The appellant will be entitled to recover from the respondents a sum of Rs. 1,470/ as compensation.

22. In view, however, of the extreme difficulty of the point involved, we would make no order for costs either before the Commissioner or in this appeal.

S.R. Das Gupta, J.

23. I agree.


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