D.K.Seth, J. - (1.) This appeal is directed against the judgment and order dated June 2, 1998 passed in Claim Case No. 122 of 1992 by the learned Judge, in the Court of the Commissioner for Workmen's Compensation, West Bengal, Calcutta. Facts:
(2.) The appellant had lodged a claim under the Workmen's Compensation Act on account of her husband's death. She alleged that this death was due to injury suffered by her husband while in his employment on board the vessel Chatrapati Shivaji belonging to the Shipping Corporation of India Limited. The injury, according to her, is related to the stress and] strain suffered by her husband in the course of his employment. The husband had boarded the vessel, after he was found fit on medical examination in terms of Section 98 of the Merchants Shipping Act, on March 29, 1990. ; On board, he was found ill and was signed off on August 23, 1990. Thereafter, his treatment was arranged by the respondent. The husband of the appellant died on January 13, 1991. According to her, the death was the result of an injury, which is causally related to the employment. As such it is a case within the scope and ambit for grant of compensation under the Workmen's Compensation Act. The respondent, on the other hand, had denied that the death was related to any injury in course of employment. According to them, the husband of the appellant died out of the ailment, which is wholly unconnected with, employment. There is no exceptional circumstances to relate the death to any injury sustained during the course of employment. Relying on various documents, it was contended that it was a death out of a disease wholly unconnected with the employment and not as a result of any stress and strain.
(3.) Learned counsel for the appellant points out that this question involves substantial question of law, since the ascertainment of the relevance of the disease with the injuries sustained in course of employment is a question of inference which gives rise to substantial question of law and not a question of fact as such. He argued conversely that the learned Judge had omitted to consider certain material facts in order to relate the injury to employment. He had overlooked certain material facts available on record. He had come to an inference on the basis of such material facts, which, in law, could not have been arrived at. Such drawing of an inference is a question of law. In the present case, it is definitely a substantial one. Therefore, the appeal is maintainable under Section 30 of the Workmen's Compensation Act, as contemplated in Sub-section (3) thereof. He further contends that in the present case, the husband of the appellant was found to be fit and only then he was signed in on March 29, 1990. He fell sick on board on August 23, 1990, namely, within five months during voyage. According to him, the reasonable presumption would be that when a person declared fit fell sick, it must be due to stress and strain on voyage in course of employment. Therefore, the learned Judge had failed to appreciate the material and draw proper inference from the facts disclosed. The report that the husband of the appellant died out of cancer as has been sought to be made out on behalf of the respondents, according to him, cannot be sustained in view of the fact that the Medical Officer or the Doctor, who had examined or issued the said certificate, was not examined. As such the said medical certificate cannot be said to have been proved. Therefore, it could not have been marked exhibit and could not have been relied upon. A document, which could not have been admitted into evidence, if relied upon results into perversity, which is again a substantial question of law. He next contends that in a case under the Workmen's Compensation Act when it is asserted that the injury related to employment, the onus or burden is discharged, particularly, when the witness could not have any occasion to be on board or voyage to ascertain the truth. In such a case, assertion by such witness would be sufficient discharge of the burden or onus to prove that the injury related to employment and causally connected therewith. In such circumstances, the burden or onus shifts onto who is supposed to rebut such a presumption by leading adequate evidence. According to him, the employer has failed to discharge the onus or burden and has failed to bring on record sufficient materials to rebut such presumption that the injury was sustained in employment.Therefore, the Judge has failed to pass an award, which he ought to have passed on the basis of the materials on record. He then contends that the documents that have been produced, particularly, the Continuous Discharge Certificate (in short CDC) shows that the victim was physically and medically fit. The learned Judge ought to have drawn inference from the said CDC in favour of the claimant and ought not to have relied upon the report of the Medical Officer either on board or of the Nursing Home where the victim was admitted. Reliance on a document, which prevailed upon by CDC is also a cause, which brings the question within the scope and ambit of substantial question of law. He has relied upon various decisions in support of his contention to which reference would be made at appropriate stage.;