- (1.) This appeal is brought from the judgment of the Bombay High Court dated 2.03.1966 dismissing the appeal brought by the appellant against the order of the Commissioner of Workmen's Compensation awarding a sum of Rs. 4,500.00 to the respondent.
(2.) The respondent is the widow of one Baptista Mascrenbas (hereinafter referred to as the deceased). The deceased was employed on board the S.S. "Iberia" a ship belonging to the P. & O. Steam Navigation Co. Limited, of which the appellants are the agents. On 2.12.1961 at about 4 p.m. the deceased was admitted to the ship's hospital suffering from "hapatomagaly" and "basal pulmonary congestion". The deceased died on 10.12.1961 at about 6.20 p.m. and the cause of death according to post mortem examination was found to be cardiac failure with pulmonary collapse and abscess of the liver. On 4.12.1962 the respondent filed an application before the Commissioner for Workmen's Compensation Bombay claiming a sum of Rs. 4,500.00 as compensation and contending that the deceased was working as a general servant and had to perform his duties standing up, that this caused an undue strain on his heart and that the cause of his death was cardiac failure and hopatomagali which he had contracted "as a result of disease in the course of employment". The claim was resisted by the appellant on the ground that the illness which resulted in the death of Baptista had nothing to do with the employment and that the deceased did not die of any injury by accident arising out of and in the course of employment. By his judgment dated 29.03.1965 the Commissioner allowed the application of the respondent and awarded a sum of Rs. 4,500.00 to the respondent The commissioner held that the deceased died of an injury due to an accident arising out of and in the course of employment. He took the -view that the very fact that the deceased had to be hospitalised on December 2, 1961 showed that he must be suffering from the disease sometime prior to that and the strain of the work he had to do must have accelerated the illness and the consequent death. Against the judgment of the Commissioner the appellant preferred an appeal to the Bombay High Court contending that the finding of the Commissioner was contrary to evidence and was based upon surmises and speculation. By his judgment dated 2.03.1966 Chitale J., dismissed the appeal The learned Judge held that under the provisions of the Merchant Shipping Act, 1894 it was incumbent upon the Master of the ship to enter into the official log book the medical treatment given to an ailing seaman, that there was no entry in the Log Book or any or her evidence on record to show that the deceased remained in hospital from December 3 to 10, 1961, that these facts were within the special know, ledge of the appellant, that the failure to lead such evidence would result in an adverse inference being drawn against the appellant and that the adverse inference to be drawn was that the deceased worked between the 3rd and 10.12.1961 and "that may have" aggravated his illness.
(3.) Section 3 of the Workmen's Compensation Act, 1923 reads as follows: "(1) If personal injury is caused to a workman by accident arising out 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 the total or partial disablement of the workman for a period exceeding three 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. It is well established that under this section there must be some casual connection between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease, he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contrir butory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment then it could be said that the death arose out of the employment and the employer would be liable.;