J.B. Mehta, J. - (1.) THE General Manager, Western Railway, has come in this appeal because the claim for compensation of the dependent -widow under the Workmen's Compensation Act, which had been rejected by the Commissioner had been fully awarded by the learned Single Judge. The claimants were the widow and the children of one David Macwan, who met with the alleged accident on July 22, 1967, at about 5.30 p m. The deceased Macwan was serving as a night -in -charge at Nadiad locoshed and his ordinary duty hours were from 8.0 p.m. to 8.0 a.m. On 20th and 21st July 1967 the deceased was on a scheduled rest and he had to resume his duty at 8.0 p.m. on July 22, 1967. According to the claimants, one Chhotubhai Vaghjibhai Patel, Ex. 19, was a fitter -in -charge in the locoshed at Nadiad and he was on duty during day time. The deceased night -in -charge had to do the same duty of supervision over the staff working in the locoshed during the hours of his duty. According to the claimants, there was a meeting of the supervisory staff to be held sometime on July 23, 1967 and as Chhotubhai had to make arrangements for the same, he was required to leave his place of duty around 4.0 p.m. and, therefore he sent Josephbhai Jacobbhai Macwan, Ex. 14, to the house of the deceased David Macwan asking him to come over to the locoshed and to take over duty from Chhotubhai Around 5.0 p.m. David Macwan, who was suffering from pulmonary tuberculosis before his death, vomited blood and fell down in the locoshed. Immediately information was sent to Chhotubhai, who came post -haste from his house to the locoshed and removed David in a car to Mahagujarat Hospital, where the doctor on duty pronounced him dead. The deceased having died by a personal injury suffered in an accident that arose out of and in the course of his employment, the compensation amount of Rs. 9,000/ - was claimed from the Respondent. The plea of the Respondent was that the deceased David was not called to resume his duty by Chhotubhai at about 4.0 p.m. and there was nothing to show that strain of work aggravated the disease which resulted in his death. According to the Respondent, the deceased died on account of the disease from which he was suffering and death was on account of natural cause and that it could never be said that he died on account of a personal injury suffered by him in an accident arising out of and in the course of his employment. The Commissioner held that the claimants have failed to prove that the deceased David died as a result of personal injury caused to him by an accident arising out of and in the course of his employment, and so the claim for compensation was dismissed. The aforesaid finding was arrived at by the Commissioner because he disbelieved the case of the claimants that the deceased was called for duty and as he came to the conclusion that the deceased had come to the locoshed at 5.0 p.m. for personal work or was passing by the locoshed when he vomited blood and collapsed. The Commissioner accepted the evidence of Chhotubhai, Ex. 19, and Kantilal, Ex. 23. The Commissioner held that Laxmanbhai, Ex. 13 and Joseph, Ex. 14, were got up witnesses, who had come to oblige the claimants. He came to the conclusion that David did not meet with an accident in the course of his employment. The Commissioner did not go into the second question as to the compensation payable to the dependents. The learned Single Judge had held that this was a case where the Commissioner had misdirected himself and committed an error of law which resulted in gross injustice by disallowing the claim of compensation. The conclusion of the Commissioner was held to be perverse, against the weight of evidence and contrary to the evidence on record and it was found by the learned Single Judge that the deceased had been called for duty. The learned Single Judge further held that the deceased was suffering from pulmonary tuberculosis since one year prior to his death, which fact was undisputed in view of the evidence of Dr. Nicholos Fonseca, Ex. 18, who had treated the deceased ; the learned Judge was satisfied as to the causal connection between injury and accident and accident and employment. In that view of the matter, the learned Single Judge allowed the full claim of compensation of Rs. 9,000/ - with 6% interest and, therefore, the Respondent Railway has come in this appeal.
(2.) THE learned Single Judge has in view of the fact that the deceased was suffering from pulmonary tuberculosis found the necessary causal connection and as per the settled legal position allowed the claim. The only short question which, therefore, arises is whether the learned Single Judge was entitled to interfere with the alleged finding of fact that the deceased had been called for duty at 4.0 p.m. on that day, in view of the special exigencies alleged by the claimants even though his normal duty was to start at 8.0 p.m. on July 22, 1967. It is this basic finding of fact on which the entire result would turn one way or the other. If, therefore, in arriving, at this finding of fact, the learned Commissioner has misdirected himself by an error of law, the error would be clearly a substantial question of law. The test of a substantial question of law in such a context for entertaining an appeal under Section 30(1) of the Workmen's Compensation Act, 1923, would not be the narrow test of question of wide or general public importance adopted by their Lordships in Chunilal V. Mehta v. Century Spg. & Wvg. Company : A.I.R. 1962 S.C. 1314 in the context of Section 110 of the Code of Civil Procedure. The legislature having enacted to provide an appeal under Section 30 and in a proviso having enacted that no appeal shall lie unless substantial question of law was involved in the appeal, it is obvious that the substantial question of law in this context has reference to the individual parties in the case and therefore, if the result of the error of law goes to the root so that there would be gross failure of justice by disallowing such a claim which ought to have been allowed, the error of law which has vitiated the judgment of the Commissioner could be clearly a substantial question of law under Section 30(1) of the Act. We agree with the reasoning in Jwali v. Babu Lal : A.I.R. 1958 All. 564 by a Division Bench consisting of Mootham C.J. and Srivastava, J. where it had been held that a wider construction must be given to the phrase, 'substantial question of law used in the proviso to Section 30(1) of the Act to cover a case in which even the Commissioner had clearly misdirected himself on a question of law as to whether a notice of claim as required by law had been served on the employer.
(3.) THE next question which arises is, when the question is as regards the finding of fact, as to in what exceptional cases such a finding of fact would be vitiated by error of law. Admittedly, there was no direct evidence by any memo given to the deceased workman for calling him on duty. But still the workman could prove this case by relying on circumstantial evidence which would have to be weighed by due regard to all the relevant facts on the record for drawing legitimate inference from the evidence led. Mr. Bhatt in this context had relied upon the decision in Sri Meenakshi Mills v. I.T. Commissioner, Madras : A.I.R. 1957 S.C. 49, where the controversy as to question of law in the Income Tax reference context has been well settled. At page 65, their Lordships had summarised the various propositions and pointed out that when the point for determination was a mixed question of law and facts, while the finding of the Tribunal on the facts found was final, its decision as to the legal effect of those findings was a question of law which could be reviewed by the Court. In the next proposition it was held that a finding on the question of fact was open to attack under Section 66(1) as erroneous in law when there was no evidence to support it or if it was perverse. In the last proposition it was pointed out that where the finding was one of fact, the fact that it was itself an inference from other basic facts would not alter its character as one of fact. That is why at page 60 it was pointed out that the inferences from facts found need not necessarily be inferences of law but might be conclusions of fact, and such conclusions of fact could be attacked on grounds on which findings of fact could be attacked viz. there was no evidence to support them as for example, if the conclusion did not follow even if all the facts found were accepted. That is why it was held that in such cases such a finding of fact must be shown to be perverse or there being no evidence to support it or there being similar exceptional grounds. That is why at page 66, the first ground was gone into by their Lordship that the finding as to the Benami character had been leached by ignoring several matters relevant for such determination. In Somvanti v. Shri Ram : A.I.R. 1968 S.C. 466 their Lordships in terms held that when a finding as regards possession had been arrived at by the first appellate Court without referring to the important pieces of evidence or by ignoring very important evidence on the record or by making far fetched inferences, such a finding of fact could not be regarded as binding upon the High Court in Second Appeal.;