JUDGMENT
Shelat, J.
1. This is an appeal under Section 30 of the Workmen’s Compensation Act, 1923.
2. The appellant’s husband, Narandas Maganlal, was ’employed in the weaving department of the Respondent Mills. On the 14th of August 1955, he had to work in the second shift which was to commence at 3-30 P.M. At 3-20 P.M. while he was sitting in the Grey folding department, where he had gone to see a friend, he got a serious heart attack and was removed from the Mills to the Civil Hospital. He remained as an indoor patient in the Civil Hospital for about a month and a half and was then discharged. He died on 16-3-1956.
3. The case of the appellant was that her husband died as a result of an injury caused to his heart by the accident which arose out of and in the course of his employment. The respondent’s case was that the deceased got an attack at 3-20 P.M. on the 14th of August 1955 before the second shift commenced and while he was sitting in the Grey folding department where he had gone not for the Mills’ work bat for his personal work. It was also the case of the respondent that the appellant’s husband died due to a subsequent heart attack while he was not in the Mills’ employment and, therefore, he cannot be said to have died of an injury which occurred as a result of and in the course of his employment.
4. The evidence of the appellant was that although the deceased was discharged from the hospital, he was not completely cured; that after he was brought home he was again taken to the hospital where he remained for 8 or 10 days as an indoor patient and was brought home again. He had then gone to Bhayla for a change of air at the house of his maternal uncle where he took medicine from a Vaidya. On the 16th of March 1956, when be died, he was not under the treatment of any Doctor. He was however examined on that day by Dr. Rameshchandra of Bhayla who declared him to be dead. Dr. Rameshchandra could have perhaps thrown some light as to the cause of death but he was not examined. The appellant said that her husband had told her that he had fallen on a loom while he was working and that as a result of that fall he had become unconscious. She also asserted that prior to the 14th of August 1955, her husband had never fallen ill and had taken no treatment for any disease.
5. Both these statements were false. If her statement that her deceased husband had fallen on the loom, while he was working on the 14th of August 1955 were to be correct, it would have been easy for him to examine a number of persons who must have been present in the weaving department at that time. The fact that she did not do so shows that no such statement could have been made by her deceased husband. Dr. Gupta of the Civil Hospital treated the deceased from the 14th of August 1955 to the 10th of September 1955. He deposed that the deceased had had a previous heart attack. He also deposed that considering the previous attack any exertion on the part of the deceased may precipitate another attack. He also deposed that at the same time even without such exertion the man, might get an attack. The attack would occur even if the man were resting. The evidence of the appellant that her husband did not have any disease or illness prior to the 14th of August 1955 was, therefore, false.
6. Dr. Desai of the Civil Hospital stated in his evidence that on the 14th of August, 1955, the appellant’s husband had a heart attack. It was a case of myocardial infraction. He also deposed that the deceased had a previous heart attack and had a bad heart. Dr. Desai has, however, stated that he was a patient who could have continued with a bad heart all his life. He has also stated that on the 29th of September 1955 when the appellant’s husband left the hospital, “he had survived the attack”, meaning thereby that he had survived the heart attack which the appellant’s husband had on the 14th of August 1955. Dr. Desai was of the opinion that a subsequent heart attack is not caused by a previous heart attack and that the appellant’s husband must have died on the 16th of March 1959 because he must have had a further attack after he left the hospital.
7. The evidence of Dr. Gupta and Dr. Desai thus establishes:
(1) that the deceased had a previous attack about a year prior to the 14th of August 1955;
(2) that the deceased was working in the Mills with a bad heart;
(3) that though on the 14th of August 1955 he had an attack he had survived that attack;
(4) that on the 16th of March 1956 when he died he must have had a fresh attack, and
(5) that it was possible that that attack was not caused by the attack which had occurred on the 14th of August 1955.
8. The question is whether on these facts it can be said that the deceased had suffered personal injury by an accident arising out of and in the course of his employment with the respondent Mills even though he died on the March 16, 1956 long after his employment with the respondent’s Mill had ceased.
9. Though the word ‘accident’ occurring in Section 3 of the Workmen’s Compensation Act is not defined in the Act, the word has been a subject matter of a number of decisions as a result of which it has come to acquire a settled meaning. The word ‘accident’ generally means some unexpected event happening without design even though there may be negligence on the part of the workman. It is used in the popular and ordinary sense and means a mishap or an untoward event not expected or designed. What the Act really intends to convey is what might be expressed as an accidental injury. It includes not only such occurrences such as collisions, tripping over floor obstacles, falls of roof, but also less obvious ones causing injury, e.g. strain which causes rupture, exposure to a draught causing chill, exertion in a stokehold causing apoplexy and shock causing neurasthenia. But the common factor in all these cases is some concrete happening at a definite point of time and incapacity resulting from the happening. Since Section 3 provides that the accident must arise out of and in the course of the workman’s employment, the accident in order to give rise to a claim for compensation must have some causal relation to the workman’s employment and must be clue to a risk incidental to that employment. But, although an accident must be a particular occurrence which happens at a particular time, in order that it may constitute an accident within the meaning of Section 3, it is not necessary that the workman should be able to locate it in order to succeed In his claim. There would be cases where a series of tiny accidents, each producing some unidentifiable result and operating cumulatively to produce the final condition of injury, would constitute together an accident within, the meaning of this section. Thus, where the duties of a workman’s employment were such that his eyes were exposed to the glare of a furnace and the successive assaults on his eyes by the high light of the furnace and the absorption on each occasion of ultra-violet rays slowly impaired his eye-sight till a crisis came with the effect of completely blinding him. The workman was held to have suffered personal injury, namely, the affliction of his eyes caused to him by an accident. Thus, the case of a man, who with a history of previous heart attack, knowing that he has a bad heart, continues to work in an employment, which by the very nature of work he has to perform might cause further strain on his heart and might thereby suffer a further heart attack, would be included within the ambit of Section 3. The fact that the workman continued in his employment knowing that he had a bad heart, against even the advice of his Doctor and also knowing that his work would cause strain on his heart and precipitate another attack is irrelevant. Once it is found that the work which he has been doing is within his employment, the question of negligence, great or small, on his part is irrelevant. Once it is established that a workman is doing an act which is within the scope of his employment though in a way which is negligent in any degree and is injured by risk incurred only by that way of doing it he is entitled to compensation : Per Lord Atkin in Harris v. Associated Portland Cement Manufacturers, Ltd., 1939 AC 71. The determinant factor is whether the personal injury suffered by the workman arose out of and in the course of his employment.
10. Similarly, Lord Lorebum L. C. in Clover, Clayton and Co. Ltd. v. Hughes, 1910 AC 242, remarked that an accident had been defined by the House of Lords in a previous decision as an unlocked for mishap or an untoward event which is not expected or designed. In that case, the workman was suffering from serious aneurism and was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. The County Court Judge found upon conflicting evidence that death was caused by strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal. The House of Lords held that there was evidence to support the finding that it was a case of personal injury by accident arising out of and in the course of the employment within the Workmen’s Compensation Act, 1906. At page 245 of the report, the learned Lord Chancellor said that the workman died from the rupture of an aneurism, and that the 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 the strain fatal. The aneurism was in such an advanced condition that it might have burst even while the man was asleep, and very slight exertion, or strain, would have been sufficient therefore to bring about a rupture. These were the findings of facts by the learned County Council Judge and these findings of facts the learned Lord Chancellor considered binding. The question then arose whether on these findings the learned trial Judge was entitled to regard the rupture as an ‘accident’ within the meaning of the Act. The learned Lord Chancellor said that he was so entitled. Rupture was an untoward event. It was not designed and was unexpected. It was, however, contended on behalf of the employer that when the man’s condition was such that he might have died in his sleep, and the mere tightening of the nut, with no more strain than ordinary in such work caused the accident, it could not be said that the accident was one arising out of the employment. Lord Loreburn felt that not much importance could be attached to the fact that there was no strain or exertion out of the ordinary in the work carried on by the workman, for the learned County Court Judge had found that the strain in fact had caused the rupture, meaning thereby that if it had not been for the strain the rupture would not have occurred when it did. It was next contended that if the Act admitted of a claim in that case, everyone who is diseased but got killed while at work, would he entitled to compensation. The reply was that that was not so. If it was that the work bad not, as a matter of substance, contributed to the accident, though in fact that accident happened while he was working there could be no claim. Therefore, in each case, the arbitrator had to consider whether in substance, so far as he could judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing, it would probably have come all the same, or whether the employment contributed to it. In, other words, in each case the Court would have to ask itself the question : Did the workman die from the disease alone or from the disease and employment taken together, looking at it broadly. If it was the latter, then the workman would be entitled to compensation. The relevant factor to be ascertained in each case therefore would be; did the workman suffer from personal injury or did he die because the work that he was doing contributed to the injury or accelerated his death? The fact that the workman was not actually working at the time of the personal injury would also not be relevant. In some cases it may be that by reason of his working in the employment his condition might, due to continuous work, be worsening until the crisis comes, though when it does occur, he may not actually be working. That would not mean that the injury was not caused by an accident arising out of and in the course of his employment.
11. The question whether the work of a workman contributed to the personal injury or not becomes difficult of determination where it is a case of a heart attack. In such it case there am always two possibilities. A man with a bad heart might die in sleep or while he is actually resting. He may also die with the slightest strain arising out of even ordinary work, not involving any out of the ordinary physical strain. Such a case arose in Whittle v. Ebbw, Vate Steel, Iron and Coal Co. Ltd., (1936) 2 All ER 1221. The deceased in that case was a grease boiler aged 61, and was at the time of the accident suffering from heart disease. Notwithstanding his doctor’s advice, he insisted upon going to work. The evidence of the doctor was that he might have died at any moment and any strain, even stooping, was prejudicial to him. He was seem about his work at 5-20 A. M. and found dead at 5-40 A. M. lying over a water tank, his face being covered with water. The post mortem examination showed that he died of heart-disease. Upon these facts, the County Court Judge held that the work upon which the deceased was engaged contributed to and accelerated his death and made an award in favour of his dependants. The Appeal Court also held that the employment contribute to the death of the deceased. It will be seen that in this case the cause of death was not known with certainty since there was no evidence as to how the deceased met his death. The question therefore that arises in such a case is whether upon the known facts there is an equal degree of probability that death was due to the employment or whether that was a more probable conclusion in the view of a reasonable man. In an earlier case in Lancaster v. Blackwell Colliery Co. Ltd., (1919) 12 BW CC 400 quoted by Slasser LJ in this decision, Lord Birkenhead L. C. had observed that if the facts which are proved give rise to conflicting inferences of equal degrees of 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. In the case of (1936) 2 All ER 1221, there was clear medical evidence that the workman was not fit for a job involving continuous bard work; that he was a weak man by reason of his cardiac condition; that a man with a heart like that might break down under any physical strain and that the work described would have a deleterious effect upon him. What impressed the Appeal Court in that case was the fact that the workman was found dead within 20 minutes of the time when he would cease work and at the place where he would normally end the last of the four times he had to go to the tank. The tank where he was found dead was the very place where be would complete his work; the last process he had to do was to carry the grease to the tank to cool, and that was the place where he was found. In other words, the fact that the man died within 20 minutes from the time that he would cease his work that day and the fact that he was found dead at the place where he would go last before he ceased working that day were not only consistent with the conclusion that showed a greater probability that he died as a result of strain from his work, than his having died purely by the effect of the disease he was suffering from. Goddard, J. (as he then was) stressed this principle at page 1235 of the report where he observed:
“the principle which I extract from the case of Partridge Jones and Paton, Ltd. v. James, 1933 AC 501 seems to me to be this: the House of Lords have decided that where a man in a diseased condition dies, and it is found that the disease and the work together contributed to his death, then his death results from accident within the meaning of the Act”.
12. Similarly, in Hilton v. Billington and Newton Ltd., (1936) 3 All ER 292 it was held that the workman’s dependants were entitled to compensation as the medical evidence clearly showed that it was the strain of the work that had contributed to or accelerated the death of the workman concerned. The facts there were that on Feb. 21, 1936, a cold day, a lorry driver strained himself by having to crank up his lorry at frequent intervals. On February 23, he was found to be suffering from influenza. He returned to work on March 16, having recovered from influenza. He died on April 27. The evidence showed that the strain on February 21 was much more than the ordinary strain of work and that the lorry driver was continuously ill from the day of the strain to the day of his death. The lorry driver had been suffering from heart disease of long standing and he might have died from the effects of any sudden strain. One doctor said that death was due to the strain, another that excessive strain would have shortened his life, and the lorry driver’s own doctor stated that he had apparently well recovered, “but heart irregular — having impulse”. The County Court Judge held that the medical evidence did not show that death had been caused by strain and dismissed the application for compensation. The Appeal Court held that the County Court Judge had misunderstood the evidence of the doctor, when he thought that it meant that the lorry driver had recovered from the strain. It was held that the evidence meant that he had recovered from influenza but not from strain and the appeal was allowed and an award in favour of the workman’s widow followed. This is yet another case where the medical evidence clearly showed that it was the strain on the heart which the workman was subjected to on February 21, 1936 and which had contributed to his death.
13. Mr. Daru on behalf of the appellant relied on Laxmibai v. Chairman and Trustees, Bombay Port Trust, 55 Bom LR 924 : (AIR 1954 Bom 180) as a case which he argued has gone even further than the two English decisions referred to above. In that case the Bombay Port Trust had employed a night watchman at its pumping station where a process was carried on for pumping water by more than ten persons. One night when the watchman was on duty as usual he complained of pain in his chest and he was asked to lie down. His condition deteriorated and he died after a few hours. The medical evidence showed that the deceased was suffering from heart disease and that the death was brought about by the strain caused upon his heart by the particular work that he was doing, viz., having to stand on his legs and having to move about as a watchman. The question was whether the deceased died of injury by an accident arising out of and in the course of his employment. The High Court of Bombay held that he died of an injury by an accident falling within the scope of Section 3 of the Act. The learned Chief Justice, who delivered the judgment for the bench, observed that if the workman died as a natural result of the disease from which he was suffering, then it could not be said that his death was caused out of his employment. If a workman is suffering from a particular disease and as a result of wear and tear of his employment he dies of that disease, no liability would be forced upon the employer. But if the employment is a contributory cause, or if the employment has accelerated his death, or, if it could be said that death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could then be said that death arose out of the employment of the deceased. These observations clearly show that the High Court did not make any departure from the principles laid down in the decisions referred to by me above.
14. The principles which emerge from these decisions are :
(1) there must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.
(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.
(3) It is not necessary that the workman must be actually working at the time of his death or that death must occur while he is working or had just ceased to work.
(4) where the evidence is balanced; if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed.
The question then is what is the position on the evidence on record in this case. There is clear medical evidence both of Dr. Gupta and Dr. Desai that the workman’s heart was bad there having been attacks prior to the 14th of August 1955. The attack which the workman had on the 14th of August 1955 occurred when he had not yet started his work and was sitting in the grey folding department for his personal work. That as I have said would not matter. What is important is that according to the medical evidence the workman survived the attack which had occurred on the 14th of August 1955. He left his employment and went to another village, Bhayala, to his maternal uncle’s house and it was there that he died on the 16th of March 1955. There was no evidence as to the cause of death though perhaps it was available as Dr. Rameshchandra of Bhayala had examined the deceased workman soon after he died. The fact, however, that there was no evidence as to the cause of death would not matter so much if it could be otherwise established that there was some relation or nexus between the death which occurred on the 16th March 1956 and the work that the workman had been performing until the 14th of August 1955. But as Dr. Desai deposed the attack on the 14th of August 1955 could not possibly be said to have caused the last attack which the man must have received on the 16th of March 1956. Consequently, it cannot be said, in the absence of any evidence to the contrary, that the work that he had done until the 14th of August 1955 or the strain involved therein was responsible for or had contributed to the causing of the death. Either the workman died because his heart was bad and in a diseased condition, or something might have happened after he went to Bhayla where he stayed for a pretty long time after he had ceased to be in the employment of the respondent Mills. There was no evidence whatsoever to show that the work he had been, doing until the 14th of August 1955 had contributed to the causing of his death. There was no evidence also to show as to what was the condition of the deceased during all these months while he was living at Bhayla. It would not be totally unreasonable in these circumstances to think that during the time that he was living at Bhayala something might have happened to cause strain to his heart and which must have contributed to the collapsing of Ms heart. The burden was upon the appellant to establish that the heart of the workman which was already in a diseased condition after the first attack had, by the strain of the work he was doing, became weaker and which ultimately collapsed causing his death on the 16th of March 1956.
15. That being the position, the learned Commissioner, in my view, was right in coming to the conclusion that the appellant had failed to establish that her husband died as a result of injury caused by accident arising out of and in the course of his employment. The appeal, therefore, fails and is dismissed. There will be no order as to costs.
