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Judgment
J.B. Mehta, J.—The claimants have filed this appeal as the workman compensation commissioner and the learned single Judge have turned
down the claim for compensation on the death of the deceased Murubhai, the motor driver of the respondent-factory.
The short facts which have given rise to this appeal are as under :
The claimants are two sons and the widow Maniban of the deceased who was working as a motor driver of the respondent since last 12 years.
Admittedly the deceased had been working with this factory and he was aged 62 years at the time of his death on August 28, 1965. His hours of
work were from 9.00 a.m. to 12.00 noon and from 3.30 p.m. to 7.00 or 7.30 p.m. in the evening. At about 6.30 p.m. on August 28, 1965, after
the factory was closed, the deceased driver had taken manager Anantrai, Ext. 27, to Chandi Bazaar about 1 1/2 miles from the factory. The
manager had to buy some grocery and therefore, both the manager and the deceased came on foot to the grocery shop after parking the car at a
distance of 100 yds. Within five minutes the deceased suddenly complained of the pain and started vomitting. Doctor was called and the deceased
was removed to the hospital. On the way the deceased collapsed. Admittedly, the salary of the deceased was Rs. 115 per month. The case of the
claimants was that even 7 or 8 days prior to the accident on August 28, 1965, the deceased during the Paryushan days was asked to take his
master to Surendranagar side and because of the mechanical defect in the engine of the car he had to start the car by manual handling and he had
to suffer lot of strain and thereafter he was unwell. Even on the day of incident, it was alleged that the deceased had worked strenuously before this
fatal trip. He suffered pain in the chest and he had succumbed on the day of the incident because of strenuous work. Therefore, the compensation
of Rs. 7,000 on the full salary basis was claimed with penalty and costs. The Commissioner posed a question as to whether there was overstrain
because of his duty on the day of the accident which accelerated death of the deceased. There being no evidence on the point and because the
Commissioner came to the conclusion that the story of the trip of Surendranagar side could not be believed and even the story of work for more
than 15 hours on the be of the incident being imaginary one, the claim was dismissed by the Commissioner. The learned single Judge also
disbelieved the story of Surendranagar side trip during Paryushan days or that the deceased had taken up any such excessive strain on that day.
The learned single Judge also found that the argument was plausible that the deceased having been is service for the whole of the day, strain must
have been involved which must have accelerated his death. But he observed that cases do arise in which the motor divers were not asked to drive
a car even once a be though on duty. The learned single Judge observed that there was nothing to show that on that day the deceased had either
driven a truck or any other car which resulted in some strain which would have some connection with his death which ultimately occurred that
evening. Even the fact about the manager being taken to Chandi Bazar at a distance of about 1 1/2 miles was not such as would impose such strain
which would accelerate the death because of the strain. Therefore, no causal connection having been established, the learned Judge found that it
was possible that at the ripe age of 62 the deceased must have died a natural death and, therefore in the absence of any evidence of the deceased
suffering any disease of heart, the inference of the commissioner was held to be justified. The learned single Judge, therefore, dismissed this appeal
and, therefore, the claimants have filed the present L.P. Appeal. It is true that this concurrent finding of fact that there this concurrent finding of fact
that there was no such previous trip to Surendranagar side 5 or 7 days prior to the day of the incident, nor 15 hours work was taken from the
deceased must be accepted. Mr. Zaveri vehemently argued that once these preliminary primary facts are accepted, the whole finding of fact of the
Commissioner and of the learned single Judge could not be disturbed in this appeal because the jurisdiction in appeal is to interfere only on a
substantial question of law. In Hind Trading Company Vs. Union of India (UOI) and Another, , their Lordship had pointed out the settled legal
position as to such errors of law when a conclusion was arrived at by the authority which had not properly understood the relevant enactment. In
that connection their Lordships had proved the relevant observations of Denning, L.J. in Regina v. Medical Appeal Tribunal, [1957] 1 Q.B. 574 at
page 582, which are as under :
No reasonable person, who had proper regard to Regulation 2(5) could have come to such a conclusion. It is now settled that when a Tribunal
come to a conclusion which could not reasonably be entertained by them if they properly understood the elegant enactment, then they fall into error
in point of law : (See Edwards (Inspector of Taxes) v. Bairstow, [1956] A.C. 14). When the primary facts appear on the record, an error of this
kind is sufficiently apparent for it to be regarded as an error on the face of the record such as to warrant the intervention of this Court by certiorari,
Therefore, the finding of fact which suffers from such material defect i.e., which is in this sense perverse, because it is not warranted, if the Tribunal
was duly instructed in the relevant enactment, or if certain material primary facts which would make the fundamental difference were ignored or a
wrong test had been posed, the decision would be suffering from the error of law, which could be surely interfered with. In the present case the
legal position is well-settled. In. Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, : Mackinnon Mackenzie and Co. (P) Ltd.
Vs. Ibrahim Mahmmed Issak, , their Lordship in terms pointed out that 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"" meant ""in the course of the work which the workman was employed
to do and which was incidental to it"". The words ""arising out of employment"" would mean that 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 casual 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 is incidents. If by reason of annual 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 the risk which is an incident of an employment,
the claim for compensation must succeed, unless of course the workman has exposed himself to an added pail by his own imprudent act. Their
Lordship also explained the onus of proof in such cases which is said to be on the workman. Their Lordship pointed out that the burden as regards
these two ingredients that the accident arose out of employment as well as in the course of employment rested on the workman. But that did not
mean that he must necessarily onus of proving that the injury by accident arise out of inferred when the facts proved 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 was
impossible to lay down any rule as to the degree of proof which is sufficient to justify an ignorance being drawn, but the evidence must be such as
would induce a reasonable man to draw it. Their Lordships quoted the observations of Lord Birkenhead, L. C. in Lancaster v. Blackwell Colliery
Co LTD., [19.8] W.C. & I.R. 345 as under :
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 in upon the appellant. 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 or able conclusion in that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour.
This identical question had been concluded also by the Division Bench consisting of Bhagwati, J. (as he then was) and Bakshi, J. in Shantaben v.
New Rajpur Mills. CO. LTD., 8. G.L.R. 1012. The Division Bench in terms overhand the test involved by Raju. J., in the earlier decision by
pointing out that such a contention could not be accepted that there must be positive evidence to how that death was not caused by the disease but
due to excessive strain on doing a particular work in which the workman was engaged at the time of death. Therefore, it was in terms held that it
was not necessary for the defendants to establish that the deceased was engaged in some exceptional work of a particular kind which involved
excessive strain so as to result in his death. If the work that the workman was doing was likely to accelerate death, it could be said that the causal
connection between the injury and the accident was established and the accident employment. The question whether the evidence in a particular
case was sufficient to create the liability of the employer for compensation would no doubt depend upon the fact whether evidence was of such
tendency and probability that it would satisfy a reasonable man that the work contributed to the causing of the injury or that the workman was
engaged in such activity that was likely to cause such strain as would accelerate his death. It was further held in para 14 after referring to the cases
G.L.R. 23, and Sarangpur Cotton Mfg. Co. Ltd. v. Dev Karsun, 8 G.L.R. 81, as under :
Now as discussed above, the authorities show that it is not necessary 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 authorities further show that when such factors as
disease or old age have pre existed they do not necessarily rule out the possibility of death having been accelerated by strain. The crux of the
matter is 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. It may be that in the case of a workman with good health and a strong body
that amount of strain which the deceased had undergone at the relevant time might not have resulted in his death and it may also be that in the case
of another workman a lesser previous result might have followed. If the principle that a pre-existing disease or infirmity would not by itself
disentitle, the dependants of the deceased workman from claiming compensation and that if 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, was right, the next question then would
be whether in spite of the disease there was or there was not strain that was likely to be caused in the work in which the employee was engaged or
in the work which was assigned to him. 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. It would also be natural to presume the if such
work involved some strain, the disease that was existing was likely to be aggravated, provided, of course there was medical or other evidence to
support such a finding. The question, therefore, would really be whether it was established that the deceased died purely as a result of the disease
from which he was suffering and the strain of work which he had been doing until the attach did not contribute to or accelerate his death. Or
whether it was established that deceased workman, though suffering from a disease had strain of work which he was doing in the course of his
employment which contributed to or accelerated his death. In the former case, the employer would not be liable; whereas in the latter, he would
be. The findings on these points would necessarily depend upon the circumstances and the inferences which could legitimately be drawn firm the
facts on record.
It is in the light of these settled principles that this question has to be examined to find out whether the accident arose out of employment, as there is
no dispute in the present case that it was during the course of employment while the manager was carried to the grocery shop during the duty hours
of the deceased driver.
As per the settled legal principles which we have earlier pointed out the causal connection test has to be applied to determine whether the
accident arose out of the employment. It is this nexus between the work and the injury or this causal connection which attracts the liability for
compensating the workman who met with this accident. That is why the relevant test or question which has to be posed is whether the deceased
died purely as a result of the disease if he was suffering from any or old age, and the strain of work did not contribute to or accelerate his death or
whether it was established that the deceased workman had been suffering from a disease or being old had strain of work which he was doing in
course of his employment which contributed to or accelerated his death. In the former cases the concept of work-connected injury not being there,
the necessary nexus being absent would not make the employer liable, while in the later case it being the work-connected injury the necessary
nexus would make hun liable. While answering this question the Division Bench had further pointed out that is was not necessary to establish
specifically as per the settled legal position that the deceased at the relevant time was working on a particular job which exercised upon him some
overstrain or excessive strain which resulted in his death. As per the settled legal position when such a factor exists as the disease, infirmity or old
age the pre-existing factor will not necessarily rule out the possibility of death having been accelerated by even ordinary strain. The crux of the
matter in such cases when where is such pre-existing disease infirmity or old age as the material factor, is whether the deceased had worked at the
relevant time on a job which would cause some strain and whether the job that was assigned to the deceased was likely to cause strain that would
accelerate his death in view of the pre-existing factor. That is why it may be that in the case of a workman with good health and a strong body that
amount of strain which the deceased had undergone at the relevant time might not have resulted in his death, and it may also be that in the case of
another workman a lesser perilous result might have followed. If the principle that a pre-existing disease or infirmity or old age would not by itself
disentitle the dependants of the deceased workman from claiming compensation, and that if such disease or infirmity or old age would not by itself
negative the possibility of the existence of a causal connection which us required to prove a claim for compensation was right, the next question
would then arise for consideration would be whether inspite of the disease, infirmity or old age, there was or there was not the strain that was likely
to be caused in the work in which the employee was engaged or in the work which was assigned to him. 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 natural
to presume that if such work involved some strain the disease infirmity to old age, that was existing was likely to contribute to or accelerate the
death. In such cases the pre-existing disease, infirmity to old age is the pre-disposing factor which will supply the necessary causal link to make this
work-connected if death takes place while the workman is engaged in his normal work.
In the present case, the Commissioner had obviously applied wrong test as to whether there was overstrain or excessive strain on the day of the
incident. Even though the learned single Judge has mentioned the test of casual connection with great respect, he also fell in the same error when he
ignored these primary facts which made the fundamental difference to the whole ultimate conclusion that the deceased was an old man of 62 years,
who had out in the whole days work and who was driving the manager to the grocery shop at a distance of 1 1/2 miles and had walked with the
manager a distance of 106 yds, after parking the car and had complained of pain in the chest at the grocery shop. Within a short time while he was
being removed to the hospital after he was given on the spot an injection, he had collapsed. Therefore, in such a case sudden collapse of the
worker after he suffered this injury resulting in his chest pain was clearly a result of a work-connected injury and not one which had no nexus or
connection with the worked the wrong test as, to whether a healthy worker who would be at a young age might not have fatal consequence by
such strain. Both the Courts had to keep in mind the relevant old age factor of this pensioner who was rerouted by this factory and was working in
this factory for about 12 years. On the day in question had been on duty for the whole day and it was while driving the manager for grocery shop
at a mile and half from the factory at 6.00 P.M. That this accident happened near the grocery shop. If all these primary facts which would have
made fundamental difference in the ultimate conclusion were kept in kind and the settled principles were applied by the learned Commissioner as
well as by the learned single Judge the conclusion is inescapable that this work connected injury or there was causal connection or that whatever
strain which this driver had undertaken on that day in the course of his employment had clearly contributed to or accelerated his death. The
evidence which is necessary in such case need not be direct evidence of a medical witness as Mr. Zaveri expects. If the correct question was
posed on these primary facts it could never be answered by holding that the deceased died purely as a result of his old age and the strain of work
which he had undertaken by attending duty for the whole day and while driving in the evening in this Jamnagar City at the relevant time did not
contribute or accelerate his death. In fact, this was a clear rate his death. In fact, this was a clear case where the old age got coupled with the
employment and therefore, the employment was contributory cause and the casual connection being established the conclusion was inescapable
that the accident arose out of employment and during the course of the employment. That answer clearly fastens the liability of compensation on the
respondent.
Mr. Zaveri vehemently argued that when the facts specially alleged by the claimants have not been proved the aforesaid conclusion could not be
arrived at because that would be a new case. The other facts were only additional grounds. Even if these facts were not established, the claimants
could succeed, once they establish the causal connection between the work of the deceased and the injury. The work-connected injury necessarily
attract the liability as casual connection test would be satisfied.
Mr. Zaveri, therefore, next concentrated his attach on the technical ground that this application was not made by the dependants. This
contention is founded on the fact that the two sons who had been joined as applicants were major sons having independent earning and therefore,
would not satisfy the definition of dependents. So far as the widow is concerned even though she was a dependent who was entitled to make this
claim, the application having been signed on behalf of the claimants only by the major son Bhagvanji, Mr. Zaveri argued that the application was
not a valid application in the eye of law. This contention of Mr. Zaveri was never urged before the Commissioner at all. The issues bad been
framed by the predecessor of the Commissioner as early as on March 20, 1968 and still no contention was raised on the ground that this widow
had not put her signature on the application. If this contention which was mentioned in the written statement was pressed, nothing could have
prevented the Commissioner from getting that defect rectified at that stage by getting the widow to sign the application. The respondent having
waived that contention and having fought on merits, it hardly lies in the mouth of the respondent to urge this contention in this contention in this
appeal for the first time, as it would cause a great prejudice. It is true that the learned single Judge has observed that the present petition was not
validly filed are presented by going in to that contention. It is open to this Court in the Letters Patent Appeal to refuse to permit that contention
because it was raised at the proper stage, the Commissioner could have got the application duly signed. In any event, that was merely a procedural
defect which would not affect the substance of the claim. Mr. Zaveri relied on S. 22(2) of the Act which provides that the application to the
Commissioner may be made in such form as prescribed giving the particulars mentioned. The relevant Rule 20 was also relied upon which provides
in clause (I) that the application under S. 22 may be sent to the Commissioner by registered post or may be presented to him and therefore unless
the Commissioner otherwise directs it must be be made in the proper form if any and shall be signed by the applicants. Under clause (2) a
certificate shall be annexed to the application which shall be signed by the applicant to the effect that the statement of fact contained in the
application was to the best of his knowledge and belief accurate. The relevant Form F proceeds for the applicants signature. In the present case as
all the three applicants had joined in the application the application was signed by applicant No. 1 son Bhagvanji on their behalf. It may be that
ultimately in his individual capacity the son could not support his claim. But that would not make the application incompetent merely because the
widow applicant had not herself signed. Mr. Zaveri in this connection ignores the material S. 22(3) which proceeds that if the applicant was
illiterate or for any other reason was not able to give the required information in writing and if the applicant so desired, the application could be
prepared under the direction of the Commissioner. Therefore, if this found had been pressed at the hearing the commissioner would have been able
to cure the defect. In any event all this procedure is to serve as a handmaid of justice and not to work tyranny so as to defect such substantial
claims especially in such labour matters. Therefore with great respect to the learned single Judge such contention involving such a great prejudice
could never be permitted if it was not raised before the Commissioner, as it was a mere technical detect which could be cured if it was raised at
proper time.
Mr. Zaveri rightly did not challenge the salary of Rs. 115 and, therefore, on that basis the compensation which should be allowed to the
dependent widow be Rs. 7,000. Under S. 4A(3) where the employer is in default in paying the compensation under the Act within one month from
the date it fell due, the Commissioner may direct in addition to the amount of arrears, simple interest at the rate of 6% per annum on the amount
due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent, of such
amount, shall be recovered from the employer by way of penalty. This is not a case where any penalty can be ordered but the employer would
have to pay simple interest at the rate of 6% from September 28, 1965, after the period of one month.
In the result, this appeal so allowed by setting aside the order of the learned single Judge as well as the Commissioner and by allowing
compensation claim of Rs. 7,000 with 6% interest from 28-9-1965 till the date of realisation with cost of Rs. 250 for both the forums. The
aforesaid compensation amount shall be deposited before the Commissioner within the period of one month from today, Mr. Zaveri applied for a
certificate under Art. 133(1) of the constitution. The law being completely settled, we do not think any question of wide public importance arises
which, in our opinion would justify any certificate being issued for taking the matter for decision to the Supreme Court. The request is, therefore,
rejected.