JUDGMENT
Bhawani Singh, J.
1. This appeal arises out of the order of Commissioner (under the Workmen’s Compensation Act, 1923), Bilaspur, in Case No. 8/84-1/87; decided on 15.11.1988. By this order, the claim of the appellants for compensation, to the tune of Rs. 50,000/-, has been rejected. The appellants feel aggrieved by this order, therefore, they have assailed the same by way of this appeal.
2. Briefly, the case of the appellants is that Tulsi Ram was on duty as watchman in the factory area between 12 p.m. to 8 a.m. on 31.1.1984. Since there was neither any heating arrangement nor woollens provided to him, Tulsi Ram caught cold as a result of which he developed pain in his stomach and during the course of his employment, he died on 1.2.1984 in the factory hospital where he was shifted. Therefore, Tulsi Ram died as a consequence of and in the course of his employment, thus enabling the appellants to move a petition to the Workmen’s Compensation Commissioner, Bilaspur, for the grant of compensation to the extent of Rs. 50,000/-. Respondent No. 1, although admitted that Tulsi Ram was got employed through him, denied his liability for the payment of any compensation. Similarly, respondent No. 2 has also denied the liability for the payment of compensation. It is further asserted by the respondents that the claims and allegations of the appellants were imaginary, erroneous and false. It has also been denied that the appellants are entitled for the payment of compensation under the Act. It has also been denied that the death of Tulsi Ram occurred as a consequence of and in the course of employment. Other averments of the appellants in the claim petition have also been denied. The Commissioner framed the following issues in this case and the parties examined their respective witnesses in support of their pleas:
(1) Whether the death of the deceased occurred as a consequence of and in the course of employment?
(2) Relief.
3. On issue No. 1, the Commissioner held that the death of the deceased did not occur as a consequence of and in the course of employment and as such, the claimants were not entitled to any compensation. The result of this finding was that the claim petition of the appellants was rejected. It is this order which is under challenge in this appeal and the learned counsel for the parties made their respective submissions concerning this order the appellants for setting aside the same and the respondents for upholding the same. I proceed to examine the respective contentions of the learned counsel for the parties.
4. Mr. K.S. Pathania, learned counsel appearing for the claimants, has contended that the order of the Commissioner under Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘the Commissioner’) suffers from grave error of law since, in view of the evidence on record, there is clear evidence to establish that the deceased was a workman and was in the employment of respondent No. 2 and he died by accident arising out of and in the course of his employment.
5. ‘Workman’ has been defined under Section 2 (1) (n) of the Act and the relevant part thereof can be stated as under:
(n) 'Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is (i) XXX XXX XXX (ii) employed on monthly wages not exceeding one thousand rupees in any such capacity as is specified in Schedule II.... 6. There is no doubt nor there is any dispute between the parties that the deceased was a workman. Under Section 3, of Chapter II, employer's liability for compensation has been prescribed. It is relevant to quote the provisions thereof since the counsel for the parties concentrated their submissions mainly to them: 3. Employer's liability for compensation. (1) If personal injury is caused to a workman by accident arising out of 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 workman, or (iii) the wilful removal or disregard by the workman of any safely guard or other device which he knew to have been provided for the purpose of securing the safety of workman,
(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section, and unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment:
Provided that if it is proved
(a) that a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment, and
(b) that the disease has arisen out of and in the course of the employment; the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section:
Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of the Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.
(2-A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was under more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.
(3) The State Government in the case of employments specified in Part A and Part B of Schedule III, and the Central Government in the case of employments specified in Part C of that Schedule, after giving, by notification in the official Gazette, not less than three months’ notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III, and shall specify in the case of employments so added the disease which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively and thereupon the provisions of Sub-section (2) shall apply as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.
(4) Save as provided by Sub-sections (2), (2-A) and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.
(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a civil court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury
(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or
(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.
7. Referring to the provisions of this section, claimant’s counsel submits that the deceased died during the course of employment because there were neither heating arrangements nor provision for the supply of woollen uniform and the result was that the deceased developed pain in the stomach and consequently died; this fact, it is submitted, has been proved by Leela Devi, PW 1, Ram Sahai, PW 2 and Sant Ram, PW 4; and even respondent No. 1 has admitted that there were no arrangements against the cold. On the basis of this kind of evidence, it is submitted that the deceased died during the period of his duty and that he died because of the circumstances aforesaid for which respondent No. 2 was solely responsible.
8. Mr. K.S. Pathania refers to RE. Davis v. Kesto Routh AIR 1968 Calcutta 129, wherein the learned Judges, after referring to certain English decisions, observed as under:
…The principle underlying all these cases is that an act which is reasonable or necessary, having regard to all the circumstances, though not one which is part of the workman’s original duty may be within the sphere of his employment. What is necessary is that there should be a causal connection between the accident and the employment and further that the cause should be a proximate cause and not a very remote cause. But at the same time it has been held repeatedly that if a workman in the course of his employment has to be in a particular place and by reason of his being in that particular place has to face a situation in which he receives injuries that fact itself would be a sufficient causal connection between the employment and the accident. In this case the workman was on board the ship in course of his employment. But for his employment he had no reason to be there. A workman while in employment must necessarily be subjected to all the needs and calls of nature to which any other man would also be subjected. The need of a labourer, who is doing loading operations in the ship, for drinking water now and then must be taken to be an essential and unavoidable contingency. Therefore, if he goes to drink water or even to look for water and gets assaulted while doing so, it must be taken that the assault took place while he was in course of his employment.
9. This case, as a matter of fact, does not help the appellant-claimants, rather it is clear from this case that there should be a causal connection between the accident and the employment and further that the cause should be a proximate cause and not a very remote cause. It is further clear that the workman, in this case, gets assaulted physically, which is receiving of an injury by a workman during the course of employment and within the meaning of Section 3 of the Act.
10. In Shantaben v. New Raipur Mills Co. Ltd. 1968 ACJ 417 (Gujarat), it has been observed as follows:
…We are of the view that a pre-existing disease or infirmity would not by itself disentitle the dependants of the deceased workman from claiming compensation and that the existence of such disease or infirmity would not by itself negative the possibility of the existence of a causal connection which is required to prove a claim for compensation. We are also of the view that unless there were circumstances to the contrary, it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time and that it would also be natural to presume that if such work involved some strain, the disease that was existing was likely to be aggravated provided there was some evidence to support such a finding. Further, it would not be necessary for the claimant to establish specifically that the deceased at the relevant time was working on a particular job which exercised upon him such excessive strain that resulted in his death. The real question in such cases would be whether the deceased had worked at the relevant time on a job which would cause strain and whether the job that was assigned to the deceased was likely to cause strain that would accelerate his death.
11. The facts of this case do not, as a matter of fact, apply to the present case since there is no evidence pointing out that the deceased was suffering from any pre-existing disease and that the work assigned to the deceased was of such a nature that caused immense strain thereby accelerating his death. The only grievance raised is that he was not provided any uniform and there were no heating arrangements. So far as uniform is concerned, there was no duty nor any requirement for the employer to do so; rather clothings were to be worn by the deceased himself. Further, the nature of the job was such that he was not to sit by the side of fire. On facts, therefore, Shantaben’s case, 1968 ACJ 417 (Gujarat), does not apply to the facts of this case.
12. Then reference has been made to Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust AIR 1954 Bom 180. The facts in this case were that there was a watchman employed by the Port Trust. He complained of pain in the chest while on duty around midnight. He was asked to lie down but his condition deteriorated thereafter and he died. The medical evidence showed that the deceased was suffering from heart disease and the death was caused thereby. The Commissioner dismissed the claim of the widow of the workman. However, the court on appeal, reversed the judgment and allowed the compensation. It is noticeable that although the court has allowed compensation in this case, but there appears to be no indication pointing out that the pre-existing heart disease was the result of the nature of employment and the death of the workman was directly on account of the strain he had to put in while discharging the functions of his job. There is a clear-cut distinction between the provisions of Sub-section (1) and Sub-section (2) of Section 3. The first part deals with the injury directly caused to the person of the workman whereas Sub-section (2) deals with occupational diseases mentioned in Schedule III to the Act. This judgment, therefore, is of no assistance to solve the issue in the present case.
13. Mr. Sood submits that the claimants have not been able to discharge the onus cast on them to prove their case for compensation and the provisions of Section 3 of the Workmen’s Compensation Act did not, at all, apply to the present case. The workman did not sustain any physical injury nor could his death be said to arise by accident arising out of and in the course of employment. Furthermore, it is also argued that the deceased did not die of any occupational disease thereby making his client liable for payment of compensation. It is further submitted that the claimant has changed her original statement reflected in notice, Exh. RA, issued by Prem Singh Thakur, RW 3, who has specifically stated that this notice was sent by him under the instructions of Leela Devi. This notice was received by respondent No. 2 and duly replied, Exh. RB. Same was done by respondent No. 1 as well although issuance of these notices has been denied by Leela Devi. Her version in this regard cannot be accepted and it is to be taken that she had issued the notices under Section 10 of the Act and the nature of the averments that are found in her claim petition have differed considerably with the passage of time. It is clear that the deceased developed pain in the stomach and he was shifted to the hospital where he died. His deadbody was taken to her place by respondent No. 2 and her assertion that she had come to the place and had insisted for medical examination cannot be accepted, as rightly held by the Commissioner. The medical evidence, Exh. RC, points out that the deceased died of cardio-respiratory arrest. The sole question, for determination, in this case is whether this case comes within the meaning of Section 3 of the Act already reproduced above. The answer to this question is in the negative, for the simple reason that the deceased may have died during the duty period but there is no causal connection between his employment and the cause of his death. He developed pain and died of cardio-respiratory failure. It cannot be said that he died of physical injury out of any accident since no direct injury was sustained by him nor it can be said that cardio-respiratory failure was one of the occupational diseases mentioned in Schedule III of the Act.
14. In Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak 1969 ACJ 422 (SC), their Lordships of the Supreme Court observed in paras 5 and 6 thereof as under:
(5) To come within the Act the injury by accident must arise both out of and in the course of employment. The words ‘in the course of the employment’ mean ‘in the course of the work which the workman is employed to do and which is incidental to it’. The words ‘arising out of employment’ are understood to mean that ‘during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered’. In other words, there must be a causal relationship between the accident and the employment. The expression ‘arising out of employment’ is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises ‘out of employment’. To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Rly. Co. v. Highley, 1917 AC 352, Lord Summer laid down the following test for determining whether an accident ‘arose out of the employment’:
There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? If yes, the accident arose out of his employment. If nay, it did not, because, what it was not cart of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was acting, or should have been in the position in which he was, whereby in the course of that employment he sustained injury.
(6) In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant, these essentials may be inferred when the facts proved justify the inference. On the one hand, the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it. Lord Birkenhead, L.C. in Lancaster v. Blackwell Colliery Co. Ltd. 1918 WC Rep 345, observed:
If the facts which are proved give rise to conflicting inferences of equal degrees or probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case, because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour.
However, in view of the facts of this case, the order of the Additional Commissioner was sustained.
15. In Om Prakash v. Surjeet, 1989 ACJ 854 (Rajasthan), the workman’s hand was stuck in the charkhi machine while putting cotton in it in a factory and the workman died after hospitalization for 17-18 days. The court held that the accident arose out of and in the course of employment and the employer was held liable to pay compensation.
16. in Mohd. Hanif Gudusab v. South India Corporation (Agencies) Pvt. Ltd. 1987 ACJ 471 (Bombay), the workman, a painter and chipper, went to the bathroom to wash his hands during duty hours and met with accident there with a laundry machine when he slipped and fell on it and got the injury in question; there was no evidence that the workman was instructed not to go to that room or any warning board affixed there to warn them. Although the employer had denied that the claimant was its employee and that the accident had occurred during duty hours, however, the evidence was found enough to prove both these aspects of the case and the employer was held liable to pay the compensation and it was also held by the court that the deceased had gone to the room during the service hours and simply because he had gone there to wash his hands, it could not be said that he did not sustain the injury during the course of his employment or out of the employment.
17. In J.F. Pareira v. Eastern Watch Co. Ltd. 1984 ACJ 699 (Bombay), the deceased was working as a salesman. He died due to heart failure while he had gone to the urinals after climbing three storeys; the question was whether the death of the deceased could be said as one arising out of and in the course of employment? The learned Judge answered the same by saying that the deceased died in the course of employment but there was no causal connection between heart failure and employment nor could it be said that the providing of urinals on the third floor rendered the place not a safe place for work.
18. In Municipal Corporation for Greater Bombay v. Sulochanabai Sadashiv Joil 1978 ACJ 208 (Bombay), the duties of the deceased consisted mainly of maintaining the record of arrival and departure of buses and starting of buses only was not in any way different from clerical work and the deceased who felt pain in the chest while on duty and removed to the hospital where he died, was held not entitled to compensation since no causal connection with duty and bodily injury was found. It was held by the learned Judges of the Division Bench of Bombay High Court that mere death in ordinary course by some bodily ailment or even in the course of employment cannot attract liability of the employer under Section 3. The words ‘injury’ and ‘accident’ imply the existence of some external factor to cause death apart from internal ailment of the body. Some causal connection between the employment and the death independently of the bodily ailment must be shown to invoke Section 3. The claimants were not held entitled to claim compensation although ex gratia payment to the extent of Rs. 5,000/- was made to which the employers willingly agreed.
19. The view taken in these judgments is in tune with the view taken by me in the present case. Further, I see similar views in the Division Bench decision of the Patna High Court (Ranchi Bench) in Superintendent of Mines v. Lalo Devi 1985 ACJ 850 (Patna), wherein Chief Justice Sandhawalia (as he then was) has very elaborately discussed and interpreted the provisions of Section 3(1) and Section 3 (2) of the Workmen’s Compensation Act, 1923. In this case, it has been specifically stated by the learned Chief Justice that ‘injury’ must be a physical injury on account of accident. ‘Accident’ has been defined as “an unlooked for mishap, an untoward event, which is not expected or designed,” to be used in its popular sense and the meaning given to it in common parlance. Further, this section takes into consideration occupational diseases which have been taken to be injuries for the purpose of Section 3 (2) of the Act by deeming fiction and no other kind of ailment or injury can be considered for the purpose of Section 3 (1) and Section 3 (2) of the Act. I adopt the interpretation and reasonings on this side of the argument as against the one contended by the appellants by placing reliance on certain decisions referred to above to which I have deepest respect but cannot accept them for the correct interpretation of the provisions involved in this case. Accordingly, in the face of the evidence and the facts of this case, I hold that the deceased, in this case, may have died during the duty hours but his death cannot be considered owing to any physical injury or occupational injury under Section 3 of the Act and Schedule III thereof. So, the appellants are not entitled to claim compensation and the order of the Workmen’s Commissioner is upheld for the aforesaid reasons in this judgment.
20. Mr. K.D. Sood, learned counsel for the second respondent, has contended that the present appeal is not maintainable since there is no substantial question of law involved in this case which is the requirement of Section 30 of the Act. Reliance, in this regard, is placed on N.L. Lalan v. VA. John 1972 ACJ 248 (Kerala). Since I have already discussed and decided the case on merits, I do not think it necessary to discuss and decide this objection and the same is left open.
21. Mr. M.C. Mandhotra, who appears for respondent No. 1, submits that his client is not liable for the payment of compensation. He further argues that under Section 12 of the Act, respondent No. 2 is liable in case it is so held by this court. From the pleadings of respondent No. 2,1 do not see that respondent No. 2 has made any effort to cast the responsibility on respondent No. 1. No such argument was set up by the counsel for respondent No. 2 during the course of hearing of this case. In such a situation, it cannot be held that respondent No. 1 is in any way responsible for the claim in question. Even otherwise, when once it is held that the appellants are not entitled to compensation, this aspect of the case is rendered of little significance and consequence.
22. In view of the aforesaid discussion, there is no merit in this appeal and the same is dismissed. However, looking to the matter equitably, the deceased was a workman with respondent No. 1, and was discharging the duties of a watchman, I recommend that respondent No. 2 may make ex gratia payment of Rs. 5,000/- to the appellants to be shared by them equally.