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Sarat Chatterjee and Co. (Private), Ltd. Vs. Khairunnessa - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1968)ILLJ329Cal
AppellantSarat Chatterjee and Co. (Private), Ltd.
RespondentKhairunnessa
Cases ReferredParwati Bai v. Rajkumar Mills
Excerpt:
- .....advised to go up on the deck. somebody went with him. some time after that and before 8-45 a.m., monir died. how he died is not known, nor do we know the exact point of time when he died. there is some discrepancy about the circumstances of his death to which we shall refer later but there is no question that he died soon after he went up on the deck. there was no post mortem examination of monirs body. as it appears, about eight persons including one samsul and one badal who were workers of the same gang in which monir was sardar, made an application to the officer-in-charge, south port police station, requesting him to hand over the body of the deceased for burial without any post mortem examination on the ground that there was no suspicion of foul play about the death of monir.3. on.....
Judgment:

Arun K. Mukherjee, J.

1. This is an appeal from the Judgment and award of the Additional Commissioner for Workmen's Compensation passed on 30 November 1965.

2. The short facts of the case are as follows:

The claimant is the widow of one Monir Sardar who at the time of his death was working as a sardar on board the ship S.S. Kasimbar at Hastings Mooring as a workman employed under Sarat Chatterjee & Co. (Private), Ltd., the appellant, in this appeal. On the night of 4 August 1963 while Monir was working in the hold of the ship at 2-45 am. he felt' very hot.' He was advised to go up on the deck. Somebody went with him. Some time after that and before 8-45 a.m., Monir died. How he died is not known, nor do we know the exact point of time when he died. There is some discrepancy about the circumstances of his death to which we shall refer later but there is no question that he died soon after he went up on the deck. There was no post mortem examination of Monirs body. As it appears, about eight persons including one Samsul and one Badal who were workers of the same gang in which Monir was sardar, made an application to the officer-in-charge, South Port police station, requesting him to hand over the body of the deceased for burial without any post mortem examination on the ground that there was no suspicion of foul play about the death of Monir.

3. On these foots Monirs widow submitted a claim before the Commissioner for Workman's Compensation, West Bengal, for a lump-sum compansation of Rs. 8,000. It is alleged in the claim petition that just before his death Monir felt unwell due to hard strain 'went upstairs for taking rest' and jay down and died. It was claimed that the cause of death was injury by accident arising in course of employment. The appellant resisted the claim on the ground that there was nothing to show that Monir had died out of an Injury arising out of or in course of his employment. The learned Additional Commissioner for Workmen's Compensation framed the following issues for decision at the time of hearing of the claim petition:

(1) Whether the death of deceased resulted from any Injury by accident arising out of and in the course of employment ?

(2) Was any notice of accident served on the opposite party ?

(3) Whether the applicant is a dependent of the deceased ?

Three witnesses were examined on behalf of the claimant and four on behalf of the appellant-company. After hearing the evidence, the learned Additional Commissioner answered issues (1) and (3) in the affirmative. As regards issue (2) the learned Additional Commissioner found that no written notice had teen served the opposite party in respect of the accident in question but that the opposite party had received constructive notice of the death from other sources. On the basis of these findings the learned Additional Commissioner awarded RS. 8,000 as compensation in favour of the claimant. The opposite party has now appealed against that judgment and order of the learned Additional Commissioner.

4. In this appeal we are concerned with only one issue, viz,, whether the death of Monir resulted from any Injury by accident arising out of and in the course of employment. We have very carefully gone through the evidence and find nothing there to suggest that the deceased had received any injury by accident arising out of his employment which could have caused his death. There is not one word in the evidence to suggest that he felt unwell while working. Samsul says that on night of 4 August 1963 he and Monir were working in the same gang, Monir as a sardar and he as a khamali. Work commenced at 10-30 p.m. There was a recess for tuffin from 2 to 2-30 a.m. After that he and Monir went down into the hold. At about 3-45 a.m. Monir felt very hot whereupon Samsul suggested that Monir should go up. Samsul did not accompany him. Somebody else went with Monir. Thereafter at about 3-45 a.m. Samsul heard a row that a man had died. He went up and found Monir laying dead on the front part of the deck. Throughout his entire evidence Samsul never Bald that Monir had complained that he was feeling unwell. The statement that a person 'felt vary hot' within the hold of a ship in the month of August in Calcutta is not an extraordinary statement and is certainly not a statement which can prove Illness. Anybody would feel heat inside the hold of a ship, Monir was a sardar. Therefore, there is nothing unusual in a suggestion being made by Samsul or by any of the other workman to Monir that he should go up on the deck and take rest. I am not suggesting that it is impossible that Monir might have felt unwell and the feeling of heat might have been caused by some physical indisposition. I am only pointing out that without some evidence even remotely suggesting that the heat was caused by indisposition and that it was not merely the natural feeling of heat which one must feel in the hold of a ship, it is not possible for us to come to a finding that Monir fell ill while he was doing work. Whether Monir died of heart failure or not is anybody's guees. Even if it had been heart failure, it is Not possible for us to connect that heart failure with the work that he was doing. The only other witness who gave evidence about the circumstances of Monir death was Badal. His evidence is more or less as follows.

5. At 2-45 a.m., Monir said that he was feeling very hot and that he was going up. Badal followed Monir. Monir went up on the deck for lying down and there he 'fell down on the deck.' Badal lifted him up and Monir expired. Whether this fall had anything to do with this death is a matter on which also one cannot say anything. As there was no post mortem examination we have absolutely no materials on record to say what was the direct cause of Monir's death. According to Badal's evidence Monir died 15/16 minutes after he went up to the upper deck. So, that would fix the hour of death at 3 a.m. Samsul, of course, says that he heard the row about death sometime about 3-45 a.m. We do not attach any importance to this discrepancy because we do not believe that workmen of a gang working in a ship or, for that matter, any person can have a precise recollection about the exact hour and minute when an incident happened. The most important feature about Badal's evidence is that he also says that in the hold Monir only complained of heat and nothing else. The additional information that he gives about Monir falling down on the deck when he went there has been doubted, for, it was suggested to him in cross-examination that he did not go up with the sardar. But this additional evidence is of no help to the claimant. It merely introduces another factor of complication in the shape of a point for speculation as to whether the deceased had died because of a fall.

6. Dr. N.B. Chowdhuri, the medical officer of the Calcutta Dock Labour Board, saw the dead body of Monir Sardar and examined the body at 8 a.m. on the next morning. He has given evidence on behalf of the opposite party. Dr. Chowdhuri said that ha found the body cold. He found no mark of injury on the body. He could not say what was the cause of death. In the nature of things it must be so. No doctor can throw any light on the cause of death by merely looking at a dead body particularly when there is no external sign of any injury and no post mortem examination has been held. The police inspector who held the enquiry in connexion with the death of Monir said that the gang workers demanded the body for burial. Mitra, who was the ether police officer present on spot, did not agree. Later on, however, the body was handed over to the gang workers at the instance of the officer-in-charge, Port Police, South Division. In connexion with his evidence he says that generally a sardar does not work with his own hand but on occasions he may have to work and may do work. This particular place of evidence seems to be corroborated also by the evidence of Samsul who said that 'sardar also works personally when necessary.' Badal said that on this particular occasion Monir was himself giving his hands to the work that was being done by the gang. He said:

We were stacking heavy drams and Monir also was doing the same thing.

7. We find on the records an exhibit described as a 'police report.' This report mentions that enquiry had revealed that Monir Sardar went inside the hatch and after starting the loading of drums he told Samsul that as he was not feeling well he would take rest on the deck. At about 4-30 a.m. Samsul went up to the deck 'to wake him up for namez and found the Sardar dead.' Though the police report is an exhibit, it is useless as a piece of evidence. Firstly, the contents of that document are not evidence. Secondly, the statement that Monir had told Samsul that he was not feeling well seems to be hearsay evidence of the worst kind. The language us; 'enquiry revealed' this Bat who actually, said this and whether he had himself heard it when Monir made the complaint; to Samsul does not appear. As we have noticed already, Samsul himself has given evidence and he did not make such a statement. Nor does Badal say this. Therefore it is apparent that we cannot attach the slightest value to this statement in the report.

8. The learned Additional Commissioner in coming to a finding that Monir Sardar's death resulted from an accident arising out of and in course of his employment relied on & presumption. This is how he argued:

Ha (i.e., Monir) joined his duties after the recess period also and carried on his work for some time. Only thereafter he felt very hot inside the hold and presumably he felt unwell accordingly and came up for rest.

As I have already said, the only evidence that we have on record is that Monir felt very hot inside the hold. Why that should lead to the presumption that he was feeling unwell does not seem to be quite clear, particularly when the learned Additional Commissioner himself says that

one can easily imagine that the hold of a ship wherein various goods are stacked is naturally stuffy and consequently hot also.

The learned Additional Commissioner also says in his judgment that Badal's evidence was that Monir went up to the deok and

Monir felt very much unwell while on the deck',

fell down on the deok and died shortly thereafter. Badal nowhere Bays that Monir felt unwell. The learned Additional Commissioner referred to 'strain of work' in his judgment but there is no evidence that there was strain of work. The learned Additional Commissioner also remarks that there is no evidence that Monir had other reasons for death. That is, to my mind, no ground for holding that Monir's death had been caused by his employment.

9. Both parties relied on the case of Bhagabanti v. General Manager, Eastern Railways 1955-11 L.L.J. 523. In that case Chakravartti, C.J., held that once a claimant has proved that the physical condition of the deceased had deteriorated by reason of a serious disease to which his constitution was subject and also that at the time of the collapse or Immediately before it, the deceased was actually engaged in the performance of his work and further that the physical condition was such that the strain of work was bound to tell upon it, the onus shifts on the employer to prove that the strain of the employment had not contributed to the death or collapse in any manner and that the workman would have died even without the strain. This case does not, in my opinion, have any application to the facts of the present case. It is nobody's case that the deceased Monir had been suffering from any physical ailment or that his constitution had so run down due to serious disease that the work done by him on the night of his death affected his physical condition further and brought about the death. There )s no suggestion at all that the deceased had any form of physical illness or infirmity at the material time. Nor is there even a scrap of evidence to show that he was actually under some strain of work. Therefore, the principle enunciated by Chakravartti, C.J., cannot be attracted to the facts of the instant case. The decision of Chakravartti, O.J., is really a decision on question of onus. Chakravartti, C.J., only said that in the facts of that case the primary onus was on the claimant who had to show that when death came the deceased had been under strain of work and that the deceased had been suffering from a disease at the material time. If these two facts were proved by the claimant, the onus shifted to the employer who then had to show that the strain of employment had not contributed to the death and that the workman would have died even without this strain.

10. Sri Ghosh appearing for the claimant-respondent relied on the case of Mrs. Rajpalia V. Champdani Jute Mills, Ltd. A.I.R. 1949 Cal. 12. In that case the deceased workman was helping to lift bales of Jute on the heads of coolies on the day of his death. At one point of time when after lifting bales of jute to the heads of one bitch of coolies the deceased was waiting till another batch came he felt ill, complained of giddiness, had a drink of water, lay down and died. There was no post mortem examination. Since there was no suspicion of foul play, the body was released for cremation. The doctor diagnosed the case as one of cerebral haemorrhage even without the post mortem examination. The workman had never complained of illness before. On the morning in question when the workman went to work, the workman had seemed to be in perfect health. The Commissioner, Workmen's Compensation, who heard the claim petition in connexion with this death held that the claimant had failed to show that the death of the workman had been caused by accident and the claim was dismissed. Tae matter cams up on appeal before this Court and Derbyshire, C.J., and Lodge, J., who heard the appeal allowed it. Derbyshire, C.J. said that the question for the Commissioner in that case was to say

whether the workman, in the performance of his duties had sustained a physiological Injury as the result of the work he was engaged in. It is not a question of whether he had some previous illness or not.

His lordship accepted the doctor's evidence in this case that death had been caused by cerebral haemorrhage which is a physiological injury. His lordship observes;

the question was not put to the doctor whether the exertion could have caused cerebral haemorrhage. But after all that is a matter for us. Looking at the evidence I can see no other cause for this accident except the strain of the work that he was doing. Such accidents have happened before and in a similar way.

Indeed this decision was based entirely on their lordships' appreciation of the evidence recorded in that case. Derbyshire, C.J., quoted extensively from the evidence of the medical officer and accepted the medical officer's finding that death was caused by cerebral haemorrhage. What weighed with their lordships also was the fact that the workman was actually engaged in the work of raising bales of jute on to the heads of other workmen almost immediately before the feeling of giddiness started ultimately resulting in death. The short interval between the lifting of bales to the heads of one batch of coolies and the same operation in respect of another baton was not such as would have justified a statement that his work could have nothing to do with the feeling of giddiness of which the workman complained immediately before his death. The workman in this case was actually engaged in a job which involved heavy strain and he felt giddiness, that is to say, he was unwell actually during the time when he was engaged in his work. The work itself involved unusual exertion and the doctor had definitely diagnosed the cause of death as cerebral haemorrhage. All these facts of the case are such which we are not considering. There is no evidence here that at any point of time before his death the deceased felt unwell. The doctor himself could not; give any cause of death. Therefore, it is not possible to establish any causal connexion between his death and his work. Everyone whose disease kills him while he is at work is not necessarily entitled to compensation. It is necessary that the work must as a matter of substance contribute to the accident. It is not enough that death happened while the workman was working. When there is some evidence of disease we are called upon to consider whether the deceased died 'from the disease alone or from the disease and employment token together.' As Lord Loreburn, L.C., put it in clover, Clayton & Co., Ltd. v. Hughes 1910 A.C. 242;

was it the disease that did it or did the work he was doing help in any material degree

In the instant case, there is no evidence that the workman had sustained physiological injury as a result of the work be was engaged in. Therefore, I cannot hold that the case of Mrs. Rajpalia, v. Champdani Jute Mills, Ltd. A.I.R. 1949 Cal. 121 can be of any help to the claimant.

11. The next case cited by Sri Ghosh was the case of Ranibala Seth, v. East Indian Railway 56 C.W.N. 623, There, of course, the only question of controversy was whether the accident to the deceased arose in course of his employment. The claimant was the widow of a workman who was employed as an engine-driver in the East Indian Railway. He was knocked down by a train at Ultadanga railway station while ha was returning after having finished his duty at Chitpur locomotive shed. Tae accident took place within the platform area, that is, the premises of the East Indian Railway. Their lordships held that since the platform was a private property of the railway company and the public have no right to use it, a servant of the company who has to cross the plat form because of his employment end in order to get away from the seene of his work, must be considered to be still within the sphere of his employment when he is knocked down and killed by a passing train within the platform area. It is on this ground that the accident must be taken to have arisen out of and in course of employment. I am afraid this is a peculiar case and has no resemblance at all to the facts of the case which we are now dealing with.

12. Sri Ganguli who appeared for the appellant relied on the case reported in 1955--if L.L.J. 522 to which we have already made a reference. He also relied on two cases reported in the Labour Law Journal, viz:

(1) Bai Shakri v. New Manekchowk Mills Company, Ltd. 1961--I L.L.J. 585; and

(2) Parwati Bai v. Rajkumar Mills 1959 --II L.L.J. 65,

In the first case the deceased workman who was employed in the weaving department of the respondent mill went to work which was to commence at 3-30 p.m. While he was sitting in the grey folding department where he had gone to see a friend he got a serious heart attack at 3-20 p.m., was removed from the mills to the civil hospital where he remained as an indoor patient for about a month and a half. He was then discharged. Almost four months after this he died. The claimant's claim was rejected. I am afraid I do not see how this case can be of any help to us. The facts of this case are of an altogether different nature. The deceased was admittedly suffering from heart disease. The only point for consideration was whether the heart attack that the deceased had on 14 August 1955 was caused by the strain of the work. As his work had not at all commenced on that day, it was obvious that the immediate cause of his death could not have been work on 14 August 1955. Thereafter the only question that remained outstanding was whether the work that the workman had done until 14 August 1955, i.e., the day when he bad the heart attack, the train involved in his work was responsible for or had any relation to the causing of the death. That means the real nature of the enquiry in that case was as to the cause of illiness of the workman. This has not the faintest resemblance to our case.

13. The case of Parwati Bai v. Rajkumar Mills 1959--II L.LJ 65 (vide supra) was the next case cited by Sri Ganguli Evidence in that case shows that the deceased had died of heart failure. There was no doubt that the death of the deceased had been caused by an accident. There was no doubt also that the deceased died while he was on his job and, therefore, in the course of his employment. The only question that arose was whether the accident arose out of the employment. The Commissioner for Workmen's Compensation rejected the claim for compensation. There was an appeal from this Judgment but the appeal was rejected by P.V. Dikshit, J. His lordship found no causal connexion between the employment and the accident. His lordship held:

Now, here, the association of the accident with the employment is not established. There is no evidence to show that Kaloo got heart disease as a result of the work he was engaged in, in the course of his employment. There is also nothing to show that the heart attack was due to an exceptional strain of work that Kaloo did on the day in question. In the absence of such evidence it must be held, that Kaloo died as a natural result of the disease from which he was suffering and if he so died then it could not be said that his death was caused by an accident arising out of his employment.

14. It is not necessary for me to refer to one or two other cases referred to from the bar. The principle to our mind is quits clear. For making out a claim under the Workmen's Compansation Act it is necessary to establish definite causal connexion between the work and the accident leading to the death. The mere fact that death takes place while the deceased is on the job or immediately after he was on the job is not enough. In the case before as no such causal connexion has been established. Indeed, there is no evidence at all that the deceased while he was on his job felt unwell nor are there other circumstances to show that his death was caused by any strain through which he must have passed while in course of his employment. In these circumstances we have no hesitation in coming to the finding that the claimant has failed to establish her claim.

15. In this view of the matter the appeal is allowed. The order of the learned Additional Commissioner for Workmen's Compensation is set aside. The claim Case No. 4176 of 1964 is dismissed. There will be no order as to costs.

16. The appellant will be entitled to withdraw the balance of the decretal amount which is still lying in deposit with the Commissioner for Workmen's Compensation, West Bengal.

Narayan Sinha, C.J.

17. I agree.


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