The Superintendent Of Mines v. Smt. Lalo Devi .

S.S Sandhawalia, C.J:— Does sub-section (1) of Section 3 of the Workmen's Compensation Act, 1923 envisage the payment of compensation to a workman de hors the occurrence of any actual accident and consequential personal injury resulting therefrom 7 This is the somewhat ticklish and significant issue which falls for determination in this appeal.

2. Facts lie in a narrow compass and, indeed, are not in serious dispute. In view of the primarily legal issue involved, a brief reference to them suffices. The respondent, Shrimati Lalo Devi, had claimed compensation for the death of her husband, Mahadeo Oraon, who was employed as a coal loader under the appellant in a colliary. In substance, the express case spelt out on her behalf was that on the 1st of June, 1978 Mahadeo Oraon aforesaid was loading coal at his place of work when a big chunk of coal fell down from the running belt and hit his body, on account of which he fell down and died instantaneously of the injury. It was claimed that the death of her husband was caused by the accident arising out of and in course of his employment and consequently the appellant was liable for compensation. The firm stand taken on behalf of the appellant was that Mahadeo Oraon did not the because of any accident at all, the very happeniag of which was denied. The case in defence was that no coal at all fell from the running belt and the workman, who was loading coal, was suddenly taken ill and had collapsed and was immediately sent to the hospital where the medical examination disclosed that he was already dead Consequently, the stand was that the claim did not come within the ambit of Section 3 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the ‘Act’).

3. The learned Presiding Officer of the Labour Court particularly referred to the medical evidence including the post mortem report which did not show any external or internal injury on the body of the deceased workman, along with the other evidence. He, therefore, concluded that the case set up by his widow that he died because of the injury sustained by him on account of the fall of the coal from the running belt was wholly unsustainable. Never, the less, he proceeded to grant compensation to the tune, of Rs. 30,000/- on the entirely conjectural ground that because Mahadeo Oraon had become unconscious whilst loading coal, he was either physically weak or was suffering from some disease and his death was accelerated because of the exertion involved in the work in which he, at the time, was employed. Reliance was primarily placed on Srimati Laxmibai v. Port Trust, Bombay (AIR 1954 Bombay 180).

4. Learned counsel for the appellant has assiduously assailed the tenuously conjectural view taken in the judgment under appeal. It was forcefully contended that the happening of an actual physical accident and a consequential personal injury resulting therefrom is the sine qua non for the liability envisaged under sub-section (1) of Section 3 of the Act. Unless the happening of actual accident is first established, which directly results in injury to the workman, no question of compensation under section 3(1) can possibly arise. It was pointed out that the present case is not one of occupational disease covered by sub-section (2) and, therefore, the question of any physical weakness or accelaration of death by such-disease or exertion was wholly irrelevant to the issue. It was contended that the court below having come to the clear finding that, in fact, there was no accident at all or any fall of coal from the running belt resulting in any external or internal injury to the workman, the inevitable consequence must be the failure of the claim for compensation.

5. On behalf of the respondent, in essence, the stand taken is that in all cases where a workman dies in the course of his employment, he would be entitled to compensation. Any disease resulting in his death whilst on duty would attract the provisions of Section 3 of the Act, according to the learned counsel for the claimant. It was sought to be submitted that even under sub-section (1) the right to compensation would not be defeated by the total absence of any physical accident or consequential personal injury resulting therefrom.

6. It is plain that the appraisal of the aforesaid rival contentions must revolve around the somewhat exhaustive provisions of section 3. It is, therefore, apt to read the relevant parts thereof at the very outset:

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, 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 workmen, or

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.

(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein 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 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 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 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 that 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.

7. Before one goes into a close and indepth analysis of sub-section (1) (which admittedly is the provision applicable here), it is necessary to look at the broad scheme of the employer's liability for compensation provided by Section 3 as a whole. Herein there is a sharp line of distinction between sub-section (1) and sub-section (2). Indeed, much confusion in this field could perhaps have been avoided if a watershed betwixt the two had been clearly kept in mind. Sub-section (1) is general in nature which spells out the employer's liability to pay compensation arising out of actual accident resulting in personal injury to the workman in the course of his employment. However, sub-section (2) is a particular provision with regard to occupational diseases arising from certain hazardous employments. This can only be meaningfully understood by reference to Schedule III and Parts A, B and C thereof. This Schedule gives a list of occupational disease specified under three distinct heads. These have been recently altered and somewhat exhaustively amended by Act 22 of 1984. Now, Part A includes in its ambit five occupational diseases and the employments related thereto. Then again, Part B of Schedule III, as now amended, contains as many as twenty-four occupational diseases with their corresponding hazardous employments. Similarly, Part C contains five such occupational diseases. Sub-section (2) by legal fictions, provides that the contracting of these occupational diseases would be deemed to be an injury by accident within the meaning of Section 3 and unless contrary is proved, would be further deemed to have arisen out of and in course of the employment. It seems manifest that it is the particular and peculiar provision of sub-section (2) which brings an occupational disease in its corresponding field of employment within the ambit of an injury by accident entirely by a deeming fiction in express terms. It was only in this context that the contracting of a disease as a natural hazard of the employment has, by a legal fiction, been brought within the scope of ‘injury by accident.’ Herein alone the issue of such disease accelarating death, etc., would arise. To my mind, therefore, the questions of occupational disease, how and when it is contracted and the same either accelarating death or otherwise are wholly foreign to sub-section (1). The line of distinction between two sub-sections is sharp and clear.

8. Reverting back to sub-section (1) (which, as already noticed, is the only relevant provision for the present case), what would meet the eye is the designed employment of the word ‘accident’ by the Legislature in the very opening part of the section. What precisely is envisaged by this word herein is indeed the primal question. Though no definition as such has been given in the Act itself, yet the concept of accident is not unknown to law generally or as employed in the specialised field of torts. It seems somewhat plain that this word must be given its ordinary dictionary meaning. It has been defined as an unlooked for mishap, and untoward event, which is not expected or designed. Equally well settled it is by a long line of precedent that the word ‘accident’ in section 3 has been used in its popular sense and the meaning given to it in common parlance. It has not been employed as term of art nor technically constricted or enlarged from the basic concept noticed above. It would thus appear that the language of the statute herein is so clear and unambiguous that it would be only doing violence to it by traveling into the conjectural field of ordinary disease or accelaration of death thereby becoming accidents within the scope of the sub-section. There appears to be no ambiguity or obscurity in the plain words of this sub-section which can warrant one to launch on a voyage of discovery for the meaning of a word which is unequivocal in its nature. Reference in this context may be made to the succinct enunciation of the rule in Maxwell Treatise on the Interpretation of Statutes (12th Edition, at page 21):—

“The length and detail of Modern Legislation, wrote Lord Evershed M.R, “has undoubtedly reinforced the claim of literal construction as the only safe rule” (Maxwell, 11th ed., p. vi). If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences (See Attorney Gen. v. Mutual Tontine West-Minister Chambers Association Ltd., (1876) 1 Ex. D. 469, per Jessel M.R Bradiangh v. Clarke, (1883) 8 App. Case 354, per Lord Fitzgerald; Re No. 12 Regent St. Oxford (1948 Ch. 735). “The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, reference to cases”. (Barrell v. Fordree (1932) A.C 676, per Lord Warrington of Clyffe at p. 682).

The rule of construction is to intend the Legislature ‘to have meant what they have actually expressed’ (R. v. Bandhury Inhabitants) (1884) 1 A & E 136, per Parker, J. at p. 142). The object of all interpretation is to discover the intention of Parliament ‘but the intention of Parliament must be deduced from the language used’ (Capper v. Baldwin (1965) 2 Q.B 53 per Lord Parker C.J at p. 61), for it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament, cannot make the law. (Davies Jenkins & Co. Ltd. v. Davies, (1967) 2 WLR 1139, per Lord Monies of Borth-Y Guest at p. 1156; I.R.C v. Dowdall, C' Mahoney & Co. (1952) A.C 401, per Lord Reid.”

9. To the same tenor are the following words in Crawford's Construction of Statutes at page 274:—

“The first source from which the legislative intent is to be sought is the words of the statute. Then an examination should be made of the context, and the subject-matter and purpose of the enactment…”

10. The view that the word ‘accident’ herein is to be given its plain and known connotation is further buttressed when reference is made to sub-clause (i), (ii) and (iii), of clause (b) to the proviso to sub-section (1) of Section 3. Sub-clause (i) exonerates the employer where the workman has been under the influence of drink or drugs at the time of the accident. The words “at the time” thereof are significant and clearly refer to the occurrence or happening of an actual physical accident. Similarly, sub-clause (ii) exonerates the employer from the payment of compensation where there is wilful disobedience by the workman to any order or rule framed for the purpose of securing the safety of workmen. This again visualises a factory or establishment where the prevention of accidents is sought to be affected by certain safety measures. To the same effect/are the provisions of clause (iii) pertaining to the wilful removal or disregard by the workman of any safety guard or other device provided for the purpose of securing the safety of workmen. All these provisions, when viewed together, would leave no manner of doubt that in sub-section (1) the word ‘accident’ is being employed not figuratively but as an actual physical happening which was avoidable by safety measures or other care or caution at the time of its happening.

11. The same result seems to flow when reference is made to the procedural provisions of Section 10 providing for notice prior to making a claim for compensation. The relevant sub-sections (1) and (2) thereof are in the terms following:

Notice and Claim—(1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or, in case of death, within two years from the date of death:

(2) Every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened, and shall be served on the employer of upon any one of several employers of upon any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed.

12. An analysis of the above would indicate that the statute visualises the actual happening or the occurrence of an accident. It further requires that the notice containing, inter alia, the specific date on which the accident happened, should be, served on the employer. A period of limitation of two years from the specific date of occurrence is then prescribed for making a claim in cases other than those of death. All these provisions, therefore, seem to be consistent only with the actual happening or occurrence of a physical accident which, in term, causes the injury to the workman for which compensation is claimed.

13. In the light of the above, and confining oneself strictly to sub-section (1) of Section 3, it would appear that the statute prescribes three basic preconditions for the employer's liability for compensation. Firstly, there must be an accident in the sense of actual physical happening or occurrence of “an unlooked for mishap an untoward event, which is not expected or designed”, secondly, such an accident must directly result in a personal injury to the workman and thirdly the accident must arise out of and in course of the employment of the workman. These preconditions appear to be foundational for the claim of compensation by the workman. This, however, can still be defeated if the employer can bring the case within clauses (a) and (b) of the proviso to sub-section (1) of Section 3. It seems plain that under sub-section (1) even by a strained or most liberal construction ordinary disease cannot be termed as accident nor can these distinct concepts be treated as if they Were synonymous.

14. Even at the cost of some repetition, one must sound a clear note of caution that sub-section (2) of Section 3 is on an entirely different and independent footing. This is so because of an express legal and deeming fiction in terms provided therein.

15. Now adverting to precedent, pride of place must inevitably be given to Mackinnon Mackenzie and Co. Private Ltd. v. Ibrahim Mohammad Issak ((1969) 2 SCC 607 : AIR 1970 Supreme Court 1906), even though it does not directly cover the issue. Their Lordships reversed the judgment of the High Court and dismissed the claim for compensation for the death of a missing seaman employed as a deck-hand aboard the ship. It was held unequivocally therein that the burden of proof rests upon the workman to prove that the accident arose out of the employment as well as in the course of the employment. More directly in issue is the Division Bench judgment of Bombey High Court in The Municipal Corporation For Greater Bombay v. Smt. Sulochanabai Sadashiv Joil, (1977 Labour and Industrial Cases 1735) wherein it has been held as under:

“Three factors must be established to attract the liability under Section 3 of the Act. Firstly, there must be an injury. Secondly, it should be caused in an accident. Thirdly, it should be caused in the course of the employment. 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’ in Section 3 of the Act imply the existence of some external factor to cause death apart from internal ailment of the above.”

16. To the same tenor are the observations in Mrs. Kamalabai Chintaman v. Divisional Superintendent, Central Railway Nagpnr (AIR 1971 Bombay 200) holding that it was clear that in all cases where a workman dies in course of the employment, he cannot be given compensation merely on that score. Reference may also be made to Mrs. Leticia Martins v. Mackinnon Mackenzie and Co. Pvt. Ltd. (1976 Lab. IC 664) and Sarat Chatterjee & Co. (P.) Ltd. v. Smt. Khairunnessa (1969 Lab. IC 778).

17. In fairness to Mr. Tapen Sen, learned counsel for the respondent, must now be made to Srimathi Laxmibai's case (supra) which forms the cornerstone for his stand. Undoubtedly this case, by analogy, lends considerable support to the respondent's case. Therein a watchman employed by the Port Trust complained of pain in the chest whilst on duty around mid-night. He was asked to lie down but thereafter his condition deteriorated and it about 6 A.M he died. The medical evidence showed that the deceased was suffering from heart disease and death was caused thereby. The Commissioner for Workmen's Compensation dismissed the claim of the widow of the workman for compensation. The Division Bench, however, on appeal reversed the judgment and allowed compensation.

18. With the greatest deference, I am unable to agree with the approach and line of reasoning which seems to have been tacitly adopted in Srimathi Laxmibai's case. It would appear that the sharp distinction between sub-section (1) and sub-section (2) of Section 3 was altogether missed. The concept of occupational disease and its prescription in Parts A, B and C of Schedule III to the Act seems to have been altogether lost sight of Equally, the deeming fiction in terms provided in sub-section (2), which brings occupational disease within the ambit of an injury by accident, went totally unnoticed.

19. Reliance in the said judgment was plainly on English cases without clearly noticing the identity or otherwise of the law as also with regard to the fact whether those were cases of occupational disease or cases simpliciter of accident. The judgment again seems to proceed on a concession of Mr. Petigara, the learned counsel for the employers, who did not seriously dispute the proposition that in that case death was caused by an accident. The whole matter seems to have proceeded on the assumption that it was an accident and the issue debated primarily was whether there was any causal connection between the assumed accident and the employment of the workman. It seems to me that it would be doing great violence to the plaint English language to term disease as an accident for the purposes of sub-section (1). With respect, cardian arrest or heart failure cannot per se be termed as accidents to grant compensation to the legal representative of a workman who dies because of the same whilst merely on duty. What has then to be borne in mind is the fact that under sub-section (1) it is not merely an accident for which compensation is envisaged but a direct physical injury caused thereby to the workman. To my mind, plainly enough sub-section (1) envisages an accident in the physical and not in the figurative or poetic sense. Both the accident and the personal injury directly resulting therefrom have to be co-terminus and, indeed must concur to bring into play the provisions of the sub-section with the added requirement that the accident had arisen out of and in course of the employment. With the deepest deference, I would wish to record by dissent from Srimathi Laxmibai's cases (supra).

20. For identical reasons, I am unable to agree with the learned single Judge's view in The Indian News Chronicle Ltd. v. Mrs. Luis Lazarus, (AIR 1951 Punjab 102). Therein, without any elaborate discussion, it seems to have been held that pneumonia allegedly contracted by working in a cooling room would be an accident within the meaning of Section 3(1).

21. Similarly, it is not possible to subscribe to the observations in paragraph 6 of Parwatibai v. Manager Rajkumar Mills, Indore (AIR 1959 Madhya Pradesh 281). The workman therein was suffering from heart disease and died therefrom. It has been observed in the said judgment as under—

“If the injury or death from the point of view of the workman, who dies or suffers the injury is unexpected or without design on his part, then the death or injury would be by accident although it was brought about by a heart attack or so other cause to be found in the condition of the workman himself. Kalu clearly did not design the heart attack or intend that he should the as a result of it. His death was thus caused by an accident.

With the deepest deference, if such a view were to be adhered to, then, indeed, all deaths by heart attacks or otherwise would be accidents because the person had himself not designed the heart attack or disease or intended that he should die. I am indeed constrained to record my dissent from so wide ranging an observation which could not be supported by either principle or other precedent.

22. Equally I record my inability to subscribe wholly to the somewhat overly wide ranging observation made in paragraph 9 in Bai Shakri v. New Manekchok Mills Co. Ltd. (AIR 1961 Gujarat 34).

23. With the greatest deference, it appears to me that the common fallacy underlying the aforesaid judgments is their reference to and reliance on English cases without noticing the wide difference and divergence of the language of English statutes from what we are called upon to construe under Section 3(1) of the Act. Plainly enough, the English statutes are not in pari materia and in some respects are radically different and further have undergone various statutory changes which inevitably had been construed by English judgments. It would perhaps suffice to mention that in England earlier provision was of the Workmen's Compensation Act, 1906. This was then amended by the Workmen's Compensation Act, 1923. Thereafter the Workmen's Compensation Act, 1925 was expected to consolidate the law relating compensation for workman. It deserves notice that prior to 1906 no disease was recognised as a cause of injury unless it could be shown to have been occasioned by some accident or untoward event; but in that year provisions as to compensation were made applicable to certain industrial diseases and these were further extended by Section 43 of the English Workmen's Compensation Act of 1925. It is thus manifest that the scheme and the language of the statutory provisions in England are distinct and different from the one prevailing in our Act and in particular the sharp line of distinction betwixt sub-section (1) and sub-section (2) of Section 3. Even in England where, as has been pointed out, the language of the section is distinct and different and inevitably so the line of precedent, Lord Atkinson had observed as follows in Clover, Clayton & Co. Limited v. Hughes, (1910) Appeal Cases 242:—

“I think the meaning put upon the word, ‘accident’ in Fenton v. Thorley (1903) A.C 443 must now be accepted in all cases turning on the construction of the phrase ‘injury’ by accident used in the Workmen's Compensation Act, 1906, as its true meaning, namely, an unlooked for mishap or an untoward event which is not expected or designed. ‘It must exclude disease. What is unlooked for or ‘unexpected’ must, in every case, exist either in the external influences to which the sufferer is subjected, or in the effect upon him which those influences produce.”

24. In that very case, Lord Shaw unequivocally observed as follows at page 257:—

“Apart from these cases, my Lords, and on these facts, I am of opinion that this workman did not the owing to injury by accident, but died of heart disease. There was nothing unusual or abnormal in the work, no strain ‘more than ordinary’ was imposed or involved, no occurrence took place to intercept or even disturb the work of the workman; all that can be said is that, being at work, and diseased, he died. His death was caused, in my view, not by any injury by accident, but simply by the disease under which he unhappily suffered. That, my Lords, is my opinion on the facts, apart from the decisions; and having considered the latter with much anxiety and respect, and recognizing to the full the delicacy of some of the distinctions drawn. I am confirmed in the opinion that neither in language nor intention does the Workmen's Compensation Act, 1906, apply to this case.”

25. Reference in this connection may also be made to Ormond v. C.D Holmes & Co. Ltd., (1937) 2 All ER 795. It would thus be manifest that even in England where the language of the statute is distinctly different, there exists a strong line of judicial thought that the death of a workman by disease is not synonymous with in accident, barring the cases of occupational diseases which have been brought with the ambit by an express legal fiction. As I have earlier shown, under sub-section (1) of Section 3 of the Act, this seems to be more so.

26. Learned counsel for the respondent had attempted to place reliance on Bai Devi Kaluji v. Silver Cotton Mills Ltd. (1966 1 LLJ 740); Imperial Tobacco Company (India) Ltd. v. Satone Bai, (1956 II LLJ 35) and Assam Railways and Trading Co. Ltd. v. Saraswati Devi, (AIR 1963 Assam 127). But these cases either turn entirely on their own facts or are otherwise distinguishable.

27. To conclude, the answer to the question posed at the very outset is rendered in the negative and it is held that sub-section (1) of Section 3 envisages the payment of compensation to a workman only upon the occurrence of an actual physical accident and consequential personal injury resulting therefrom. Now applying the above, it is common ground herein that court below had come to the firm finding that in fact there was no accident at all in the present case. No chunk of coal from the running belt fell nor any question of any injury to the workman therefrom thus arose and indeed the medical evidence showed that the body did not have any external or internal injury. That finding was very fairly not ever assailed on behalf of the respondent and, indeed, could hardly be in the present proceedings wherein an appeal lies only on a question of law. Once it is held that in fact there was no accident as such then the very foundation of the claim under sub-section (1) of Section 3 is eroded. Herein admittedly there was no question of any occupational disease or the applicability of sub-section (2). That being so, the appeal must succeed and is hereby allowed. The judgment of the Labour Court is set aside and the claim application dismissed. There will however, be no order as to costs.

Satyeshwar Roy, J.:— I agree.