Chagla, C.J:—
This is an appeal from a decision of the Commissioner for Workmen's Compensation, Bombay, by which he dismissed the application of Shrimati Laxmibai, the widow of one Atmaram Ramchandra Karangutkar, for compensation under the Workmen's Compensation Act. The learned Commissioner held that the deceased Atmaram was not a workman within the meaning of the Act, and he also held that the deceased did not die of an injury by an accident arising out of and in the course of the employment of the deceased Atmaram.
The facts really are not in dispute. The deceased was a watchman employed by the Port Trust at its pumping station at Carnac Bunder, Bombay, and as usual he was on night duty on the night of August 20, 1951, and the hours of his duty were 7 p.m to 7 a.m At 1 a.m on August 21, the deceased complained of pain in his chest and was asked to lie down. His condition deteriorated and at about 6 a.m he died. The medical evidence showed that the deceased was suffering from heart disease and that the death was brought about by the strain caused by the deceased being on his legs for a certain period of time; and the two questions that we have to consider in this appeal are whether the learned Commissioner was right in coming to the conclusion that the deceased was not a workman, and also whether he was right in holding that he did not die of injury by an accident arising out of and in the course of his employment.
There is not much difficulty about the first point. A “workman” is defined in s. 2(n) of the Act, and cl. (ii) of that section defines “workman,” to the extent that it is material, as a person employed on monthly wages not exceeding Rs. 400, in any such capacity as is specified in Schedule II, and we have to turn to Schedule II for the purpose of determining whether the workman was employed in one of the capacities set out in that Schedule, and the relevant clause of that Schedule is cl. (ii) which provides:
“(ii) employed otherwise than in a clerical capacity in any premises wherein, or within the precincts whereof, on any one day of the preceding twelve months, ten or more persons have been employed in any manufacturing process, as defined in clause (g) of s. 2 of the Factories Act, 1934, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, and steam, water or other mechanical power or electrical power is used;”
The finding of fact by the Commissioner is that in the premises where the deceased was working, cranes, sluices, hoists, capstans, and, other docks machinery were worked, by water pressure generated by the pumping station, but the view taken by the Commissioner is that the deceased was not employed in the pumping station itself but he was only a night watchman employed to keep watch on the premises of the pumping station. The error into which the Commissioner has fallen, with respect, is that it is not necessary for the purpose of satisfying the definition of “workman” that the deceased should be working in the pumping station itself. All that is necessary is that he should be working in the premises in which ten or more persons are employed in a manufacturing process. Therefore, if in these premises belonging to the Port Trust ten or more persons are employed for carrying on a manufacturing process, it is not necessary that the workman himself should take part in the manufacturing process. All that the law requires is that he must be employed in those premises otherwise than in the clerical capacity. On the facts there can be no doubt that the deceased was employed in these premises where manufacturing process was carried on by more than 10 persons and he was not employed in a clerical capacity. Mr. Petigara on behalf of the Port Trust has drawn our attention to the definition of “manufacturing process” in the Factories Act. “Manufacturing process” is defined in s. 2(k) of the Factories Act and the definition is that “manufacturing process” means any process for (and that is the material part of the definition) pumping oil, water or sewage. On the evidence it is clear that in the pumping station in question a process was employed for the purpose of pumping water, and if such a process was employed it was a manufacturing process. In our opinion, therefore, the Commissioner was in error in holding that the deceased was not a workman within the meaning of the Workmen's Compensation Act.
The second point is a more interesting point which has been urged before us by Mr. Jayakar on behalf of the workman. As English Judges have from time to time pointed out, any decision under the Workmen's Compensation Act is not an easy decision free from difficulty. Learned Judges for a long period in England have construed the various expressions used under the Workmen's Compensation Act and it is not always easy to reconcile all the decisions, and therefore one must try and obtain such light as is possible from the decisions on which reliance has been placed at the Bar. Before we turn to the authorities, let us look at the section itself and see what the facts found in this case are. The employer's liability under the Workmen's Compensation Act arises provided the conditions laid down in s. 3 of the Act are satisfied, and that section provides that 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. Therefore, in the first instance, the workman must suffer personal injury and that personal injury must be caused by an accident. It is well settled that the expression “accident” in this section must be construed in its popular sense. It has been defined as an unlooked for mishap; an untoward event which is not expected or designed. It has also been pointed out that the statute does not make a distinction between a personal injury and the accident. What the statute intends to convey is what might be expressed as an accidental injury. The next condition that has got to be satisfied is that the accident must arise in the course of the employment of the workman. He must receive the accidental injury while he is actually working for his employer. The third condition that has got be to satisfied is that the accidental injury must arise out of the employment. This last expression has led to considerable judicial discussion in England. Whereas “the course of employment” emphasises the time when accidental injury was caused, “out of employment” emphasises that there must be a causal connection between the employment and the accidental injury. In this particular case the medical evidence clearly establishes that the deceased was suffering from heart disease. The medical evidence equally clearly establishes that the deceased died on the morning of August 21, as a result of the strain caused upon his heart by the particular work that the deceased was doing, viz. having to stand on his legs and having to move about as a watchman looking after the pumping station belonging to the Port Trust. Therefore it is clear on this evidence that the workman died as a result of an accident. He did not design that his heart should be strained, nor did he intend that he should die while he was working for his employer, and Mr. Petigara has not seriously disputed the proposition that we must hold in this case that death was caused by an accident. It may be said, that the death was the result of an ordinary strain which the deceased received while he was carrying out his normal duties. It may be urged that there was nothing exceptional which the deceased did on that particular day. But as we shall presently point out, the authorities have clearly laid down that in order to come within s. 3 it is not necessary that it should be established that the workman died as a result of an exceptional strain or some exceptional work that he did on the day in question. It is clear that the deceased died in the course of his employment, but what is seriously disputed by Mr. Petigara is that the death did not arise out of the employment of the deceased.
The question therefore that we have to consider is whether there was any causal connection between the death of this workman and his employment. The authorities again are clear 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. The authorities also have gone to this length that 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 fixed upon the employer. But it is equally clearly established that if the employment is a contributory cause, or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased. Mr. Petigara says that we are bound to accept the finding of fact of the Commissioner and the Commissioner has observed that he failed to see what was the strain caused on the heart of the deceased by his duties as a night watchman, and he has further observed that it is impossible to link the death of the deceased with any exertion the deceased may have had on the day of his death. Mr. Petigara is perfectly right that in appeals against the decisions of the Commissioner for Workmen's Compensation, we are bound by the findings of fact and the appeal only lies on substantial questions of law. But the finding of the Commissioner must be based on evidence and if the finding is contrary to evidence then we are not bound by those findings. In our opinion, in this case the finding of the Commissioner is clearly opposed to the evidence on the record, and the only material evidence on this point is the evidence of the doctor. Turning again to that evidence, the doctor says:
“The deceased had a heart attack before the attack which resulted in his death. Strain on the heart muscles is the cause of the death of a person suffering from heart disease. Standing for a long time, i.e, for an hour at a stretch, will cause strain on the heart muscles which are already diseased. If a watchman with a diseased heart stands for an hour at a stretch or walks for an hour at a stretch, it will cause a strain on his heart and may result in death. I am of opinion that the deceased died because of such strain.”
Therefore the evidence is clear and unequivocal that the deceased died because of the strain which the doctor has described in the earlier sentence, and the strain is the strain of standing or walking about for some time, and it is established on evidence that the watchman was on his duty from 7 p.m onwards. In face of this evidence and in the absence of any evidence to the contrary, it is difficult to understand how the Commissioner could take the view that it was impossible to link the death of the deceased with any exertion the deceased may have had of the day of his death. Therefore the question is whether on the evidence of the doctor and on the clear position that emerges from that evidence that the workman died as a result of the strain suffered by him by standing or walking on the day in question while he was in the employment of the Port Trust, it could be said that his death arose out of his employment.
Turning to the authorities, there are two decisions on which Mr. Jayakar has relied which are very much in point. They are both reported in Butterworths' Workmen's Compensation Cases. The first in McFarlane v. Hutton Brothers.(6) In this case the workman suffered from coronary disease of the heart. He was working as a stevedore, and on the day in question he was employed in unloading a ship and he had to fill a tub with iron ore, and while he was pulling the tub he suddenly said, “Oh!” and ceased work for a moment, but recovering put some iron ore into the tub, when he again felt ill and stopped. He lay down and within half an hour was dead. The County Court Judge held that the death was due to disease, and that it had not been shown that he had been subjected to any sudden strain, but that the work was proceeding in the ordinary way, and therefore there had been no accident such as would entitle the dependant to compensation. It would be noticed that what the County Court Judge emphasised was the fact that there was no sudden strain and that the workman was carrying out his ordinary duties. The Court of Appeal in England held that the County Court Judge had misdirected himself and that to establish an accident it was not necessary to find a sudden or special strain and an award should be made in favour of the dependant, and Lord Hanworth, Master of the Rolls, at p. 227 enunciates the law as follows:
“If there is an unexpected personal injury arising from some physiological condition set up in the course of the work, that may be described as an accident even though there is at the moment nothing unusual or particular which sets it up.”
In the case before us the unexpected personal injury arises from the strain upon the heart which has been caused in the course of the work and that is the physiological condition to which reference has been made in the judgment of the Master of the Rolls.
The next case is Moore v. Tredegar Iron & Coal Co. Ltd.(7) This was a case of a collier and he also was suffering from a disease of the heart. His work during the night in question was heavier than his usual work, but not heavier than what he was occasionally required to do. A quarter of an hour after he had ceased work, and after he had walked some 190 yards from his place of work, on his way to the surface, he was found unconscious on the ground. On being helped up, he recovered and walked a short distance but collapsed again and died. The County Court Judge posed the question, which he had to answer, as follows:
“Whether the work which the workman had been doing at any time on that night caused or contributed to his death or in any way accelerated it?”
But having posed that question, according to the Court of appeal he did not answer it properly because the answer he gave was that there was nothing abnormal in the work which would be likely to cause or accelerate death. The County Court Judge was unable to find any particular strain which actually caused death and therefore he was constrained to hold that there was nothing unusual likely to contribute to death, and the Court of Appeal held that on the evidence the workman's death had been accelerated by his normal work on the night in question and therefore there must be an award in favour of the dependent. Therefore here we had a case of a workman doing his normal work and yet that normal work accelerating his death.
Mr. Petigara has relied on the well known decision of the House of Lords in Cloyer, Clayton & Co. Ltd. v. Hughes.(8) In that case the learned Law Lords were sharply divided, Lord Loreburn, Lord Macnaghten and Lord Collins taking one view and Lords Atkinson and Shaw of Dunfirmline taking the other view. This was a case where a workman was suffering from serious aneurism and he 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 that the 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, and Lord Loreburn very succinctly lays down the law (p. 247):
“…In each case the arbitrator ought to consider whether in substance as far as he can 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, did he die from the disease alone or from the disease and employment taken together. Looking at it broadly, I say, and free from over-nice conjectures, was it the disease that did it, or did the work he was doing help in any material degree?”
If that is the correct principle, and with respect we say it is, then there cannot be the slightest doubt in this case that it was not the disease alone which brought about the death of the workman, but it was his work also which helped in a material degree in bringing about his death. Lord Macnaghten at p. 249 says that the fact that the man's condition predisposed him to such an accident seemed to him to be immaterial. Therefore the fact that a man suffers from heart disease and he is likely to suffer from such an accident is immaterial in deciding whether the death arose out of the employment of the workman. Mr. Petigara has asked me to look at the judgment of Lord Show, which is a dissenting judgment, and the learned Law Lord says (p. 261):
“…In my opinion, in the present case it is impossible for me to attribute this unfortunate and afflicted workman's death to injury by accident, as such a pronouncement, however prompted by compassion for those bereaved, would be erroneous in fact and involve a liability which is not imposed either by the language or in the intention of the statute.”
And Lord Shaw points out that such a construction may introduce a new peril preventing employers from employing persons who may be suffering from certain kinds of diseases, and Mr. Petigara asks us not to be led away by compassion in construing s. 3 of the Workmen's Compensation Act. In one sense, a Judge must approach every problem that comes before him with compassion and humanity, but ultimately when he comes to a decision he has got to decide according to law, even though he may find the law harsh and cruel, and therefore in holding as we do that the employer is liable in this case, we are not giving effect to what we consider are claims of humanity and compassion, but we are strictly construing s. 3 of the Act in the light of the decision to which reference has already been made.
Then Mr. Petigara relied on two recent English Cases. One is Whittle v. Ebbw Vale, Etc. Co.(9) This case, if anything, strongly supports the contention of the Appellant. This was a case of a grease boiler who was at the time of the accident suffering from heart disease, and the medical evidence was that the doctor had asked him not to go to work, but he insisted on going. But the doctor said that he might have died at any moment, and any strain or stopping was prejudicial to him. The post-mortem examination showed that he died of heart disease. On these facts the County Court Judge held that the work upon which the deceased was engaged contributed to and accelerated his death, and he made an award in favour of the dependants and the award was upheld by the Court of Appeal.
The next decision on which Mr. Petigara has relied is Ormond v. C.D Holmes & Co. Ltd.,(10) and Mr. Petigara strongly relies on this decision and says that this decision clearly points out that unless the death is caused by some specific event or specific act and not by an incident which is part of the ordinary duties of the workman, the employer is not liable. In this particular case the workman was a blacksmith's striker and had been doing strenuous work for years, and on the day in question he gradually became ill at work and collapsed, and the finding of the County Court Judge was that on the medical evidence the work the man was actually engaged on neither caused, nor contributed to, nor accelerated the second stroke, and that he could not associate the second stroke, with the work the man was engaged upon on the day in question. It seems that he had a stroke a few days earlier. Therefore here we have a clear finding of the County Court Judge that the work he did on the day in question did not contribute to or accelerate the death. Mr. Petigara has relied on certain observations of Lord Justice Slesser at p. 798. The learned Lord Justice says:
“…Of later authorities, all of which I think lead to the same conclusion that the workman must prove, to succeed, an accident, though not necessarily punctuated, yet identifiable in time and circumstance…….”
And Mr. Petigara says that in this particular case there is no accident which is identifiable in time and circumstance. That, in our opinion, is not the medical evidence. The accident which is clearly identifiable in time and circumstance is the strain caused upon the workman by his being on his legs or moving about during the time that he was on duty. Further, Lord Justice Slesser says (p. 799):
“…Divorced from this date, December 20 (that is the day on which the workman died), the case becomes starkly one of disease, or tendency to disease, or weakness, accelerated by continuous exertion at work.”
Therefore the death in this case was due solely to the disease from which the workman was suffering which took its natural course and became worse and worse. And Lord Justice Romer points out (p. 804):
“…The difficulty in treating an industrial disease as an injury by accident in fact is manifest. It is the result, not of any particular untoward event, or unlooked for mishap, but one gradually brought about in the course of time. It is not therefore accidental.”
And he also says on the same page that the change in the condition of the workman on December 20, was due to “waste overrunning repair” during the whole period. Therefore, in our opinion, this decision does not in any way run counter to the decisions to which we have drawn attention. This decision merely emphasises the point to which we have already made reference that where we have a case where death is due solely to a disease from which the workman is suffering and his employment has not been in any way a contributory cause, and if death is brought about by what might be called mere wear and tear, then it may be said that the death did not arise out of the employment of the workman. But where the death is due to a strain caused while the workman is doing the work of his employer, and if it is established that strain, however ordinary, accelerated the death or aggravated the condition of the workman, then the death could be said to have resulted out of the employment of the deceased.
In our opinion, therefore, the learned Commissioner was in error when he came to the conclusion that the deceased did not die of injury by an accident arising out of and in the course of the employment. There is no dispute as to the compensation to which the widow is entitled. We would therefore set aside the order of the Commissioner and direct that the opponent should pay to the applicant the sum of Rs. 3,000 as compensation. The opponent must pay the costs throughout.
Appeal allowed.
K.B.S