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. 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.
(3.) 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.;