SARANGPUR COTTON MANUFACTURING CO LTD Vs. DEV KARSAN WD O KRISHNAN VASHRAM

JUDGEMENT

(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:

(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: