Calcutta High CourtImperial Tobacco Co. (India) Ltd. vs Salona Bibi on 27 May, 1955Equivalent citations: AIR1956CAL458, 60CWN378, (1956)IILLJ35CAL, AIR 1956 CALCUTTA 458, (1956) 2 LABLJ 35, 69 CAL WN 378, 96 CALLJ 182JUDGMENT

 

Chakravartti, C.J.1. The only point urged in this appeal against an award made by the Commissioner for Workmen's

Compensation is that there was no evidence before the Commissioner on which he could properly hold that the death of the workman concerned had been caused partly by disease and partly by the stress and strain entailed on him by a journey to his place of employment which he had to undertake, because he was required to do so by the conditions of his service. According to the appellants, who are the employers the journey had been undertaken voluntarily and, in any event, it had nothing to do with the death which was caused solely by disease and, therefore, there was no death by an accident arising out of and in the course of the workman's employment and indeed no accident at all.2. Certain of the facts were admitted by the parties, but as to the crucial facts, they differed. It was admitted that the deceased person, one Mohammad Syed, was a workman under- the appellant-company, the Imperial Tobacco Company (India) Limited, and was employed as a sweeper or floor-boy in their Packing Department. It was also admitted that Mohammad Syed died on 22-4-52 on the table of the appellant-company's hospital, situated on the first floor of a building. As regards what had caused Byed's death and how he had come by it, the parties made different cases. The learned Commissioner has characterised the case made by the respondent, who claimed compensation on account of the death of her son, as full of untruths and he has characterised the case with which the company wanted to meet the claim as full of half-truths. He had, therefore, to find the facts for himself and has done so.3. The case made in the application for compensation was that Syed had previously been sick, but he went to his place of employment on 22-4-1952, in order to rejoin his duties. There, when going up to the dispensary of the employers' hospital, he stumbled on the staircase, suffered a fall and received injuries which subsequently proved fatal. That case was not adhered to in the course of the trial and the witnesses called for the applicant spoke of a different fall upon a different staircase. According to them, when Syed arrived at the company's premises on 22-4-1952, the doctor was net yet to be found & thereupon he took up a broomstick, placed it on a tin box, preparatory to starting the work for the day and went to the urinal. Upon his return from the urinal, he somehow slipped on the eastern staircase and it was there that he was found by certain of the witnesses in a prostrate condition. He was carried up to the dispensary ,where he died within a few minutes.4. I should explain here why it was necessary for Syed to seek out the doctor when he came to report for duty after the expiry of the period of his leave. According to the evidence in the case, the rule followed in the establishment of this company is that if a workman falls ill and is granted sick leave, & thereafter wants an extension of that leave he can have such extension only if the Medical Officer of the Company recommends the same and grants him a certificate. Similarly, if a workman goes on sick leave and wants to Rejoin his duties after recovery he has to obtain from the Medical Officer a certificate of fitness before he can be allowed to resume his duties. The case made by the witnesses for the applicant, therefore, was that Syed considered himself as no longer sick and as fit for work and it was for the purpose of obtaining a certificate of fitness that he required to see the doctor.5. The case made by the company was that even on 2274-1952, Syed had been on leave and he came on his own   account to consult their doctor

without being required to do so. When he arrived, he was in a serious condition, but was given immediate help. He was placed on a stretcher and sent up to the dispensary where some medical aid was given to him by the attending doctor. But as the doctor found him in a dying condition, he instructed one of his compounders to telephone for an ambulance. Before the ambulance arrived, the workman expired.6. I might pause here to indicate the point in the company's defence. They appear to have realised that if Syed was not on leave on 22-4-1952, and was required to come to his place of employment in order either to obtain an extension of his leave or to obtain a certificate of fitness and if the journey undertaken by him for the purpose caused his death or contributed to it, there would be a death by accident arising out of and in the course of his employment. It was obviously to exclude that possibility that the company made a case of leave even on 22-4-1952. If the workman was on leave on that date, he would not be required to come to his place of employment by the conditions of his service and if he had yet come, he had done so at his own risk and not by reason of any obligation imposed on him by his employment. If such were the facts, then even if the journey had caused or contributed to the death in addition to the disease, no claim for compensation against the company could be sustained.7. The above are the respective cases put forward by the contending parties. The facts found by the Commissioner, chiefly on admission, made by the company in the course of the evidence, are as follows:8. The workman reported sick on 15-4-1952, and was seen by the doctor who recommended two days' leave, which was granted. That leave took the workman to the 17th of April next. On the 17th, he came to his place of employment, still sick, and saw the doctor who found him suffering from malarial fever and broncho-pneumonia. This time the doctor recommended leave for three days, which again was granted. The second instalment of the leave took the workman to the 19th of April. The 20th was a Sunday. On the 21st he remained absent without leave, but on the 22nd he went  to the premises of his employers in a rickshaw. So bad was his condition that he had to be helped out of the conveyance and indeed carried on the shoulders by some of his fellow-workers who deposited him in the Labour Shelter Shed near the north-western gate of the factory. There he was seen by the Gate Sergeant of the Watch, and Ward Department who arranged for a stretcher and sent him up to the dispensary upstairs. The doctor also claims to have heard of a workman in a very serious condition, waiting downstairs for medical attention, and he too claims to have sent down a stretcher. But whether it was by the good offices of the Gate Sergeant or by those of the doctor or by the good offices of both, the workman was carried up to the dispensary and laid on a table. The doctor found him in "a dying condition" and gave him an injection. As, however, he thought that the condition of the patient was alarming, he instructed one of his compounders to telephone for an ambulance but the workman died within ten minutes. Some commotion appears to have been created by the suddenness of the death, which is not unusual in establishments where there is a large labour population, but it soon died down and when the Police arrived, some of the worsers furnished them with a statement In writing that they did not suspect any foul play. Thereupon the 
dead body was released.9. It will be seen from the facts found by the learned Commissioner, which I have recited above, that the company's case that the workman was on leave on 22-4-1952, was utterly false. It appears that not only was that case made before the Commissioner as a matter of argument, but the books and papers kept in the establishment were adjusted to it by appropriate entries. The Time Card, Leave Register and Attendance Register, all filled in by the Time Keeper of the Packing Department and countersigned by the Labour Liaison Officer, contain entries, showing that the workman was on leave on 22-4-1952. One of them even postpones the death to the next day and says that the workman expired on the 23rd of April. One can only express one's sense of despair that irregularities of this kind should occur in the offices of so reputed and well-established a company as the appellants. One can understand the anxiety of a large employer of labour to see that he is not made to pay compensation in any case where there is no real liability 'Under the law, because such cases serve as precedents, and once a workman or his dependents succeed in obtaining compensation for injuries for which the Act does not really provide compensation, the employer may well-nigh be overwhelmed by similar claims in future. The jealous-ness with which an, employer guards his immunity, such as it is under the Act, is intelligible, but nothing can justify the preparation of false records or the making of incorrect entries, designed to defeat a poor workman's claim. I should hasten to add that what has been done in the present case'may have been the work of an individual subordinate officer who wanted to acquire credit in the eye of their employers without the company themselves being a party to the misdeed. But even if that was the reason why the false entries came into existence, the affairs in the offices of the company do not appear to be in a stage of which they can feel proud.10. To revert now to the mother's claim for compensation, it depends on her being able to establish that the death was caused by the instrumentality of something arising out and in the course of her son's employment and secondly that the something was an accident, as the term is understood in law, and not some natural cause of death. The medical certificate granted by the company's doctor is that the workman's death was due to "cardiac failure resulting from malarial fever and pneumonia". The learned Commissioner has found that the death of the workman was due partly to his disease and partly to the stress and strain of the journey he had to undertake in order to report to the factory dispensary according to the prevailing practice of the factory. If these findings be correct, there can be no doubt that the death was caused partly at least by an accident and that such accident arose out of and in the course of the workman's employment.11. So far as the second point is concerned, there was really no dispute before us. All that was contended on behalf of the appellant company was that they had not received any opportunity or adequate opportunity for rebutting the applicant's case that the rules obtaining in the factory required a workman, who had gone on sick-leave, to obtain certificate from the company's doctor if he wanted an extension of leave and to obtain certificate of fitness, if he wanted to rejoin his duties. I can only observe that this contention cannot be entertained for a moment. The full particulars about the rules framed and enforced by the appellant-company were given by two of their own officers, who stated in elaborate detail what a workman, once fallen eject, had to do if he

wanted leave or if, on recovery, he wanted to rejoin work. There can be no question of the company rebutting a case which not the claimant but they themselves made or placed before the Court through their own witnesses. Indeed, in the course of the hearing before the learned Commissioner, it does not seem it have been disputed at any stage that no workman who had gone on sick-leave could obtain an extension of that leave without a fresh certificate from the doctor, nor could a workman who had been on sick-leave report for duty, unless he was certified by the company's doctor as physically fit. As I have stated, the particulars of the rules were furnished by the company's own witnesses. In those circumstances, it hardly lies in the mouth of the company to contend that they had had no opportunity to disprove the existence of such rules and it is hardly graceful on their own part to attempt to put forward such & contention.12. We must, therefore, proceed on the footing that rules, such as spoken to by the company's own witnesses, were in existence and are enforced by the appellant-company. Given that such rules exist and are enforced, it seems to me to be plain that if the stress and strain of the Journey did cause or contribute to the workman's death, the accident constituted of such Stress and strain arose out of and in the course of the workman's employment. The case is a stronger one than the decision in the case of 'Riley v. William Holland and Sons, Ltd.' (1911) 1 KB 1029 (A), where before the accident had happened, the last fluty to be performed by the employee under the contract of service had been performed. As one of the learned Judges put it, there was, at the time when the accident happened, no longer any continuing obligation to serve, no continuing duty to obey and the whole time of the ex-employee had reverted to her own disposal. Her work having been finished on a Wednesday, she had only gone to the mill on the following Friday in order to receive her wages according to the practice followed in the mill. In the present case, the workman's position is far stronger. His employment under the appellant-company was continuing and he was still a workman serving under a contract of service with them. The journey which he had to undertake was imposed on him by one of the conditions of his employment during a period when the employment was continuing and it was to meet requirement or discharge an obligation of his employment that he had to undertake the fateful journey which resulted in his death. In my view, it is impossible to contend that even if the journey caused the death or contributed to it in part, the stress or strain entailed by it was not an accident arising out of or in the course of the workman's employment. It appears to me to be beyond argument that if during the continuance of his employment, a workman is required by the conditions of his service to do any particular thing and the act so done involves him in an accident by reason of which he suffers personal injury or death, such accident arises out of and in the course of his employment, even if the act done may not be one of the duties attached to his post, but some other incidental act, required however to be done or necessitated by reason of the conditions of employment. I must, accordingly, hold in agreement with the learned Commissioner that if the stress and strain of the journey was responsible for causing or precipitating the workman's death, there was an accident arising out and in the course of his employment.13. The real question in the appeal, however, is whether the strass and    strain of the journey

had, in fact, anything to do with bringing about or accelerating the death. The appellant's argument was that there was nothing to show that anything other than the workman's disease of malaria and brcncho-pneumonia had operated to bring about his death. Reference was made to the positive evidence constituted by the certificate of death granted by the appellant's own doctor and the negative fact of the absence of any direct evidence that physical strain entailed by the journey was an additional cause of death.14. Certain decisions were cited at the Bar, but they do not seem to me to cover the instant case.    The decision  in  'Clover,  Clayton and   Co. Limited v.  Hughes' (1910) AC  242  (B),   was inevitably cited on, behalf of the respondent, but that case does not seem to me to be of any assistance. There, the workman was suffering from an advanced aneurism of the aorta which   means an   enlargement of a vein or artery serving the heart and he suffered a rupture while doing his work in the ordinary way by tightening  a nut with  a spanner.   In that case, as also in the case of 'Moore v. Tredegar Iron and Coal Co. Ltd. (1938) 31 BW CC 359   (C), there was positive medical evidence to the effect that the strain of the work had operated to accelerate the death.    The  only     case where there was, no medical evidence, so to speak, but it was yet held that the  strain of the worte had occasioned the death is the case of 'Sm. Rajpalia v. Champdani Jute Mills, Ltd.'  1949 Cal 121 (AIR V36)   (D), which proceeded largely on  the decision in the case of 'M'lnnes v. Dunsmuir and Jackson, Ltd.' (1908)  1 BW CC 226 (E).    In both the cases I have just referred to, the decision rests be the fact that apart  from  the  strain   of   the work  which  preceded  the  fatal   accident,   there was   nothing   else   either   in   the   general   condition of the workman's health or any other extraneous circumstances which could account for his sudden collapse and demise.    The present case is not  one where there is any medical evidence to the   effect  that,  in addition to the   disease,  the strain imposed by the     journey on the physical system of the workman was  also a cause of his death; nor can it be said, in view of the diseases from which the workman was suffering, that apart from the stress and strain   of the journey which was completed  a few   minutes before the death, there was no cause by which the death could at all be explained.   The facts of the present case, therefore do not come under any of the decided cases cited at the Bar.15. The principles applicable to cases of this kind are well-settled. If the death of a workman was due solely to his disease, no compensation could be claimed against the employer. But if looking at the whole body of facts, it can be drawn as a fair Inference and without over-nice conjectures that an act done in carrying out the conditions of the employment caused, in part at least, a physiological injury which resulted in or accelerated the death, the employer will be liable for compensation, because one of' the causes of the death arose out of the employment under him and by reason of the conditions of that employment. The short question we have to decide is whether judged by that test, the finding arrived at by the learned Commissioner can be held to be correct.16. It will be useful at this stage to recall the broad facts. The workman fell sick on the 15th apparently of fever, but his condition was grave enough for the doctor to come to be of the opinion that he needed leave and could not be required to perform the duties of his post. Leave for only two days was recommended and granted. When the workman returned on the third day,

the doctor found him suffering from malaria as also from broncho-pneumonia.  Yet no more than three   days'  leave was  recommended  or  granted, The result was that, on the expiry of his  leave,the workman had to come again to the premises of the company, whatever his physical condition might at the time be.   He had to come in a rickshaw and when he came he was in such a.condition that he  had to be lifted bodily  out of the vehicle and carried upstairs to the dispensary in   a stretcher.    The condition in   which the doctor then found him was a dying condition and indeed it was so serious that he hastened   to administer an injection.    Death followed within a few minutes.17. It appears to me that it requires no expert or medical evidence to appreciate that a patient suffering from malarial fevers and broncho-pneumonia requires rest in bed more than anything else and cannot safely be required to under- 3 take a journey after a period of only three days. Mohammad Syed. was, however, given only three days' leave and was thus compelled by the shortness of that leave and the conditions of his employment to undertake a perilous journey to the company's premises, while still suffering from his ailments and indeed when arrived at an advanced stage of the malaria. He, a malaria and broncho-pneumonia, patient, had to undertake the stress of the journey, then to be bundled out of the rickshaw on the shoulders of his fellow workers and deposited in the Labour Shelter Shed and then hustled upstairs to the dispensary in a condition which the appellants' doctor himself declared as a dying condition. I consider it not without significance that the doctor, while giving evidence, was careful to avoid all mention of the injection he had administered, although the company's written statement referred to some medical aid given to the workman. It was only the compounder, who came later, who spoke of the injection and threw further light on the condition in which the workman had been after the journey from his house in a rickshaw, the journey on the shoulders of his friends from the rickshaw to the Labour-Shelter "Shed and the journey in a stretcher from the Labour Shelter Shed to the dispensary.   In my
view, here was a case where a workman suffering from malarial fever and broncho-pneumonia which, as it is common knowledge requires rest in order to prevent hypostatic congestion of the lungs, was compelled by the company to undertake a long journey after only three days and the journey undertaken, when suffering from those serious diseases, involved the strain of travelling in a rickshaw, that of being carried on the shoulders of other men and that of being sent upstairs. The injection given to the workman immediately upon his arrival at the dispensary suggests what effect the recent turmoil had on his physical system. I find myself entirely unable to hold that if on those facts, the Commissioner came to the view that the strass and strain entailed by the journey contributed in part to the death of the workman there was no evidence before him, on which he could properly come 'to such a rinding. As it has often been emphasised by English Judges of great experience, the Commissioner must always ask himself one broad question: Are the facts such that, in addition to physical ailments to which the workman was subject, there was some strain Imposed by the performance of the duties of his post or the performance of some other act required by the conditions of his employment which contributed to the ultimate death? The learned Commissioner asked himself that question and came to a finding which I am unable to hold is not a finding that he could come to on the materials before
him.18. For the reasons given above, this appeal is dismissed with costs - the hearing-fee being assessed at three gold mohurs.19. The order restraining the respondent from withdrawing the balance of the compensation money is automatically vacated.Lahiri, J.20. I agree.