SARANGPUR COTTON MANUFACTURING CO LTD Vs. DEV KARSAN WD O KRISHNAN VASHRAM
LAWS(GJH)-1966-8-17
HIGH COURT OF GUJARAT
Decided on August 11,1966

SARANGPUR COTTON MANUFACTURING COMPANY LIMITED Appellant
VERSUS
DEV KARSAN WD/O KRISHNAN VASHRAM Respondents

JUDGEMENT

A.R.BAKSHI - (1.) These two appeals arise out of a claim for compensation by the legal representatives of a deceased workman who according to the claimants died as a result of injury caused by an accident arising out of and in the course of his employment. In the two matters which are the subject matter of these two appeals the deceased was suffering from a pre-existing disease and died during the period of working hours and therefore the question arose as to whether compensation was claimable under sec. 3 of the Workmens Compensation Act and under what circumstances such compensation could be claimed. The question in other words was whether the death could be said to have been caused on account of personal injury caused by an accident arising out of and in the course of employment. Questions such as these when the workman had a pre-existing disease such as heart disease pulmonary tuberculosis and died while doing some work during the hours of his duties have often arisen in the past and have raised points of law as well as of fact on which there have been several pronouncements both by the Courts in England and India. Since both the appeals involve questions relating to proper construction and effect of sec. 3 of the Workmens Compensation Act that question being common to both the appeals can conveniently be disposed of in one judgment and as the facts are different in two cases after dealing with the legal points I shall deal with each appeal separately in this judgment. In order to understand how the question about the construction and effect of sec. 3 of the Workmens Compensation Act has arisen in these two matters it would be necessary to refer shortly to the facts of each case which have given rise to the present controversy between the parties. First Appeal No. 645 of 1961 is against the order of the Commissioner for Workmens Compensation Ahmedabad in Application No. 69 of 1958 by the widow of Krishan Vashram who was in the employment of the Sarangpur Cotton Manufacturing Co. Ltd. and who was working as a head jobber in the throstle department in the second shift on 25th February 1958 when he suddenly developed pain in the chest and vomitted blood at about 9-30 P.M. and died in the early morning of the next day. On post mortem examination the cause of death was found to be bilateral pulmonary tuberculosis. First Appeal No. 57 of 1963 is against the order of the Commissioner for Workmans Compensation Ahmedabad in Application No. 74 of 1959 which was made by the widow of one Babaraji Becharji who was an employee of the New Commercial Mills Co. Ltd. Ahmedabad and who was working as an oilman in the Engineering Department on 27 March 1959 when at about 8-30 A.M. in the morning shift he vomitted blood and died. On post mortem examination it was found that he had died of acute coronary insufficiency and that the duration of the disease was about 5 to 10 years. In both the cases therefore the facts disclosed that the cause of death of the workmen was a preexisting disease end in both the cases the attack which resulted in the death of the workmen was received during the period when the workmen were on duty. The question that arose in the two cases was whether the occurrence was an accident which arose out of and in the course of the workmens employment. The arguments of the learned advocates appearing on behalf of the two employers in the two matters was that when death of the workman occurs during the period of his employment and when the workman was suffering from a pre-existing disease which by itself could have resulted in his death the employer could not be made liable to pay compensation under the Workmens Compensation Act unless it was proved that the cause of death of the workman was the strain which the workman had undergone while performing his duties that were assigned to him by the employer. It was urged that unless and until this fact was positively proved no order for awarding compensation could be made under the Workmens Compensation Act. It was further urged that when the deceased workman was suffering from a pre-existing disease which would have resulted in his death it could not be said that the duties that were assigned to the workman had caused strain and that therefore the workman had died as a result of that strain. It was contended that the fact of a serious pre-existing disease introduced a possibility of death having occurred as a natural consequence of the disease and that so long as such a possibility existed and was not completely ruled out the employer could not be held to be liable for compensation. It was urged that the Workmens Compensation Act does not contemplate disease as an accident and no compensation would be payable for death which could be made directly attributable to a disease. It was further urged that in cases when death was due to a disease and normal strain or ordinary work it could be said that death was due to a disease but not on account of an injury by accident arising out of employment. According to the arguments advanced on behalf of the employers in order to establish a causal connection between accident and employment the peril which the employee has to face and by reason of which the accident is caused must not be personal to him and a disease which leads to death on the usual strain or a slight strain must be considered as a peril personal to the employee and not incidental to his employment. Such factors as pre-existing diseases affecting vital organs which must result in death without strain or such factors as organs which bring in diseases with advance in years cannot constitute a causal connection between accident and employment and it was further contended that even if it was held that a pre-existing disease could not be considered to rule out a case under sec. 3 for compensation there must be positive evidence to show that death was not caused by disease but by strain or in any event it must be clearly proved that death was accelerated by strain. The learned advocates of the employers also laid stress on the argument that the burden of proof in all such cases was heavily on the claimants to prove that death was not due to disease and that it was accelerated by such strain as would necessarily result in death. These are in brief the points that were advanced on behalf of the employers on the question as to how claims under sec. 3 for compensation should be approached and decided and it is in the light of these points raised in the course of the arguments that the authorities that were cited at the hearing will be discussed.
(2.) Sec. 3 of the Workmens Compensation Act is as under: (1) 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 in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable (a) in respect of any injury which does not result in total or partial disablement of the workman for a period exceeding seven days; (b) in respect of any injury not resulting in death caused by an accident which is directly attributable to (i) the workman having been at the time thereof under the influence of drink or drugs or (ii) the wilful disobedience of the workman to an order expressly given or to a rule expressly framed for the purpose of securing the safety of workmen or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen. (2) If a workman employed in any employment specified in Part A of Schedule 111 contracts any disease specified therein as an occupational disease peculiar to that employment or if a workman whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months in any employment specified in Part B of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and unless the employer proves the contrary the accident shall be deemed to have arisen out of and in the course of the employment in the same kind of employment. Explanation. For the purposes of this sub-section a period of service shall be deemed to be continuous which has not included a period of service under any other employer. (3) The State government after giving by notification in the Official Gazette not less than three months notice of its intention so to do may by a like notification add any description of employment to the employments specified in Schedule III and shall specify in the case of the employments so added the diseases which within the State shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively and the provisions of sub-sec. (2) shall thereupon apply within the State as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments. (4) Save as provided by sub-secs. (2) and (3) no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment. (5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury. (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) If an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act. This section has its parallel in sec. 1 of the English Workmens Compensation Act 1925 which has been repealed. It would be necessary to set out the provisions of the section of the English Act because many of the authorities that were referred to have been pronounced on the construction and effect of this section. The section reads as under: Liability of employers to workmen for injuries. (1) If in any employment personal injury by accident arising and in the course of the employment is caused to a workman his employer shall subject as hereinafter mentioned be liable to pay compensation in accordance with the provisions hereinafter contained. Provided that (a) The employer shall not be liable under this Act in respect of any injury which does not disable the workman for a period of atleast three days from earning full wages at the work at which he was employed; (b) If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman any compensation claimed in respect of that injury shall unless the injury results in death or serious and permanent disablement be disallowed. (2) For the purposes of this Act an accident resulting in the death or serious and permanent disablement of a workman shall be deemed to arise out of and in the course of his employment notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment or of any order given by or on behalf of his employer or that he was acting without instructions from his employer if such act was done by the workman for the purposes of and in connection with his employers trade or business. (3) This Act shall apply notwithstanding any contract to the contrary whether made before or after the commencement of this Act except that where under this Act the provisions of a scheme are substituted for the provisions of this Act the employer shall be liable only in accordance with the scheme. It would be seen that the Workmens Compensation Act creates a special type of liability as it makes an employer liable to pay compensation at a fixed rate to his employee who is rendered incapable of work by an accident arising out and in the course of employment. The purpose of the Act does not appear to give solatium to the relative of an employee who has been fatally injured but something to replace the actual loss which is the relative has suffered nor does it appear that the section was intended to award damages for negligence on the part of the employer. As the words of the section indicate the liability of the employer for compensation is created if a personal injury is caused to a workman by accident arising out of and in the course of his employment. What sec. 3 of the Act requires is: (1) That a personal injury must be caused to the workman; (2) That injury must have been caused by accident; and (3) That accident must have arisen out of and in the course of employment. The word accident occurring in the Workmens Compensation Act has been the subject matter of judicial discussion in Fenton v. J. Thorley & Co. Ltd. 1903 A. C. 443 in which it was held that in the Workmens Compensation Act 1897 the word accident was used in the popular and ordinary sense and meant a mishap or untoward event not expected or designed. At page 453 Lord Lindley has observed that The word accident is not a technical legal term with a clearly defined meaning. Speaking generally but with reference to legal liabilities an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word accident is also often used to denote both the cause and the effect no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events. At page 454 Lord Lindley has made some observations on the meaning of personal injury by accident in the following words: What is meant by personal injury by accident ? Mr. Powell in his very able argument contended that there must be first a personal injury; second that there must be an accident causing it; third that such accident must be the proximate cause of the injury and that nothing more remote than the proximate cause can be properly taken into account. My Lords I cannot accede to this contention. Assuming that there must be something unintended and unexpected besides the personal injury sustained or in other words assuming that there must be a personal injury and an accident causing it I cannot agree with Mr. Powell that this statute ought to be construed as if it were a policy of insurance against accidents. In an action on a policy the causa proxima is alone considered in ascertaining the cause of loss; but in cases of other contracts and in questions of tort the causa causans is by no means disregarded. This was pointed out by Willes J. in Grill v. General Iron Screw Colliery Co. and is strikingly illustrated by Siordet v. Hall and numerous other cases of a similar kind. Siordet v. Hall was an action against a steamship owner for injury to cargo caused by water escaping from a pipe which had been burst by a sharp frost. The defence was that the accident was an act of God for which the defendant was not responsible. The Judge however told the jury that if the water had been unnecessarily placed in the boiler or considering the season of the year improperly left there without heat to prevent the action of the frost upon the pipe the mischief was not occasioned by the act of God but by gross negligence. The jury found for the plaintiff. A new trial was applied for on the ground of misdirection. The Court held that the loss was attributable to negligence and was not caused by the act of God so as to exonerate the defendant from liability. In other words attention was paid to the circumstances under which the proximate cause produced the damage complained of. The rule that in contracts of insurance the proximate cause of loss can alone be regarded is carried so far that if it were rigidly applied to this Act of Parliament its evident object would in many cases be clearly defeated. No doubt the rupture in this case was the result of an effort voluntarily and strenuously made and it may be that a policy of insurance against accidents might be so worded as not to cover an injury so caused. But if we look further and inquire what called forth this unusual effort we find it was an unexpected difficulty in moving the wheel of the machine and that this difficulty arose from an unobserved leakage which caused the material in the machine to choke the mechanism. The machine was accidentally put out of order. It had worked properly until it was stopped by an accident. It is not straining language but using it in its ordinary sense to describe the personal injury as caused by an accident. The personal injury was the rupture; the cause of it was the unintended and unexpected resistance of the wheel to the force applied to it. Such a case appears to me to fall within the Act. The next case of importance to which reference may be made is Wicks v. Dowell & Co. Limited (1905) 2 K. B. 225. In that case the applicant was employed in unloading coal by means of a hydraulic crane from a ship lying at the wharf. His duty was to stand on a wooden stage close to the edge of a hatchway the stage being so constructed as to enable him to look down into the hold and while standing on the stage he had to regulate the descent of the bucket into and its ascent out of; the hold by means of a long pole and also to give the necessary signals to the man who was working the crane. While thus engaged he was seized with an epileptic fit and fell through the hatchway into the hold and sustained very serious injuries. He had had epileptic fits on previous occasions. The county Court Judge on these facts held that the accident was due to the epileptic fit and did not arise out of and in the course of the employment and he consequently refused to make an award in favour of the applicant. While allowing the appeal of the applicant the Court of Appeal held that in such cases regard must be had to the proximate cause of the accident resulting in the injury which was to be found in the necessary proximity of the workman to the hatchway and that the accident therefore arose out of as well as in the course on his employment. In that appeal it was contended on behalf of the employers that the original cause of the applicants fall was the epileptic fit with which he was seized and that the cause was one which the man himself carried about with him and that the damages which he sustained did not arise out of and in the course of his employment but arose out of the idiopathic condition of the workman at the time. It was observed by Collins M. R. that the Court was precluded by authority from giving effect to such an argument. It was suggested in the arguments in the appeal that if the occurrence was analyzed it would be seen that the accident was caused by the idiopathic disease from which the man was suffering and that therefore the accident did not arise out of his employment and it was observed that At that point the authorities come in to the effect that although the cause of the fall was a fit the cause of the injuries was the fall itself and they are direct authorities that the injury in the present case was caused by an accident. On the question whether the accident could be said to have arisen out of the applicants employment it was observed that When we get rid of the confusion caused by the fact that the fall was originally caused by the fit and the confusion involved in not dissociating the injury and its actual physical cause from the more remote cause that is to say from the fit the difficulty arising from the words out of the employment is removed. It was observed that an accident did not cease to be such because its remote cause was the idiopathic condition of the injured man and that we must dissociate that idiopathic condition from the other facts and remember that the employee was obliged to run the risk by the very nature of his employment and that the dangerous fall was brought about by the conditions of that employment. Such factors as disease and old age suggested to be the cause of the injury have been referred to in the observations of Cozens-Hardy L. J. at page 231 as under: If I could adopt the view that has been pressed upon us that the employer is not liable for the remote consequences of a disability which the workman brings with him to his work I should come to a different conclusion; but I think the truer view is that a man always brings some disability with him: it may be a disability arising from age; it may be of some other nature. A workman who is put in a dangerous position in order to do his work is more liable to an accident by reason of the disability which he brings with him than he would otherwise be. Again an old man is inherently more likely to meet with an accident than a young one but an employer could not excuse himself on the ground of the mans age. The same consideration applies to a tendency to illness or to a fit and if a man with such a tendency is told to go to work in a dangerous position and there meets with an accident the accident none the less arises out of his employment because its remote cause is to be found in his own physical condition. It may be mentioned that in the case of Lander v. British United Shoe Machinery Co. Ltd. (1933) 102 L.J.K.B 768 the workman a known epileptic had a fit while crossing a hard floor to the lavatory and fractured his skull on the hard floor. The floor was held to be not in itself dangerous to normal people. On these facts the Court of Appeal reverse the county Court judge holding that the workman could not recover distinguishing Wicks v. Dowell (1905) 2 K.B. 225 on the ground that the workman in that case also an epileptic was required to stand at a place which was dangerous in itself namely an open hatchway down which he fell as a result of a fit. It may be mentioned here that the case of Lander v. British United Shoe Machinery Co. Ltd. was not followed subsequently by the Court of Appeal in Wilson v. Chatterton (1946) 1 All E. R. 431 to which reference will be made later.
(3.) Reference may now be made to the case of Clover Clavton & Co. Limited v. Hughes 1910 A.C. 242. This decision has been referred to in subsequent cases and therefore requires to be referred to in some detail. In Appeal No. 1079 of 1960 the New Rajpur Mills Co. Ltd. Ahmedabad v. Shantaben Thakore Raju J. has referred to some of the observations of the minority view expressed in this case i. e. Clover Clayton & Co. Ltd. v. Hughes by Lord Shaw. The facts of that case were that a workman suffering from aneurism in so advanced a state of disease that it might have burst at any time was tightening a nut with a spanner when the strain quite ordinary in the ordinary work ruptured the aneurism and died. The county Court Judge 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 fatal. This decision was affirmed by the Court of Appeal which was confirmed by the House of Lords. It was held by the House of Lords 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 within the Workmens Compensation Act. While speaking on what was an accident Lord Loreburn L.C. stated that the word accident had been defined by the House of Lords as an unlooked for mishap or an untoward event which is not expected or designed and that all the Lords who took part in the decision of Fenton v. Thorley (1903) A.C. 443 agreed in substance with this definition in Lord Macnaghtens speech. As regards the requirement that the accident must be one arising out of the employment it was stated that there must be some relation of cause and effect between the employment and the accident as well as between the accident and the injury and what was stated by Lord Lindley in Fenton v. Thorley was relied upon. At page 245 it was observed that: My Lords I think some of our difficulties in applying the Act are due to this. Courts of law have frequently been obliged to consider especially in actions on policies of insurance what is to be regarded as the cause of some particular event. In one sense every event is preceded by many causes. There is the causa proxima the causa causans the causa sine qua non I will not pursue scholastic theories of causation. The causa proxima is alone considered in actions on a policy as a general rule. I do not think that is the proper rule for cases under the section now under discussion for the reasons explained by Lord Lindley in Fenton v. Thorley. It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened and if the accident is one of the contributing causes without which the injury which actually followed would not have followed. One of the arguments that was advanced in that case was that there might have been an injury by accident caused to the workman but that would not establish that the accident was one arising out of the employment. The question that arose was that when the workmans condition was such that he might have died in his sleep and the mere tightening the nut with no more strain than ordinary in such work caused the accident could it be said that the accident was one arising out of the employment. Lord Loreburn at page 246 observed that he did not think that any importance should be attached to the fact that there was no strain or exertion out of the ordinary and in his connection he observed that I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the county Court Judge that the strian in fact caused the rupture meaning no doubt that if it had not been for the strain the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases there must be some standard of exertion varying in every trade. Nor do I think we should attach any importance to the fact that this mans health was as described If the state of his health had to be considered there must be some standard of health varying I suppose with men of different ages. An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work whatever the degree of exertion or the condition of health. It was urged that in such an event if the Act admits of a claim every one whose disease kills him while he is at work would be entitled to compensation But the reply that was given was that in each case the arbitrator would consider whether in substance as far as he could 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 to it. In the words of Lord Loreburn the question would be did the workman die from the disease alone or from the disease and employment taken together looking at it broadly and free from over-nice conjectures. It appears that on the real question whether the accident arose out of the employment of the workman the evidence before the county Court Judge in that case was conflicting. But the learned Judge held that the 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 and on such a finding Lord Macnaghten observed at page 249 that the fact that the mans condition predisposed him to such an accident was immaterial. Lord Collins in his observations was of the view that the case was concluded by the authority of Fenton v. Thorley in which one of the cases that were over-ruled was commented upon by Lord Macnaghten i. e. Hensey v. White (1900) 1 Q.B. 481 Lord Collins observed at page 255 that One of those specially commented upon by Lord Macnaghten Hensey v. White was in essentials identical with this case. The workman who was in an unsound physical condition ruptured himself in attempting to turn a wheel which proved too stiff for his physical powers. A postmortem examination disclosed the fact that he had been suffering from chronic inflammation and congestion of the intestines and to this as the antecedent cause one of the medical witnesses attributed the fatal result of the strain. The county Court Judge had found as a fact that the death was the result of chronic disease and held that something beyond the mere fact that a long standing disease had suddenly assumed a fatal form in consequence of the deceased doing his ordinary hard work in the usual way was necessary in order to constitute an accident within the meaning of the Act. The Court of Appeal had affirmed this view. Lord Macnaghten in overruling this and a group of other cases decided on the same lines by the Court of Appeal says: If a man in lifting a weight or trying to move something not easily moved. were to strain a muscle or rick his back or rupture himself the mishap in ordinary parlance would be described as an accident. Anybody would say that the man had met with an accident in lifting a weight or trying to move something too heavy for him. He then goes on to express his entire agreement with the case of Stewart v. Wilsons and Clyde Coal Co. Ltd. and singles out for special approval a passage in the judgment of Lord MLaren: If a workman in the reasonable performance of his duties sustains a physiological injury as a result of the work he is engaged in this is accidental injury in the sense of the statute. Lord Lindley likewise expresses his approval on the same decision. The observations of Lord Collins thus supports the view that 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 Workmens Compensation Act.;


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