SUNDARBAI Vs. GENERAL MANAGER ORDNANCE FACTORY

JUDGEMENT

(1.) THE appellant Suderbai's husband Moolchand was a workman in the Ordnance Factory, Khamaria, the respondent in this appeal. Moolchand died on 8th May 1969 while working in the Factory. The post mortem examination revealed that Moolchand was suffering from aneurism of aorta and cause of death was rupture of aneurism. The appellant applied to the Commissioner for Workmen's Compensation for award of Rs. 7,000 as compensation alleging that death of Moolchand resulted from injury caused by accident arising out of and in the course of his employment. In particular it was alleged that injury was caused due to strenuous work. The respondent denied that the death of Moolchand resulted from any injury by accident arising out of his employment. It was, however, admitted that Moolchand was doing his normal work as a labourer in the Box Plant Section when he died. The appellant led evidence to prove that on 8th May 1969 Moolchand before the tea break was engaged in loading and unloading heavy boxes from a lorry and after the tea break he was cleaning covers when he died (see the evidence of Hari a. W. 3 ). The respondent on the other hand examined the Foreman Harliker (N. A. W. 2) to prove that Moolchand throughout was doing the comparatively light work of cleaning covers. Dr. Srivastava, who had conducted the post mortem examination, was also examined. He stated that Moolchand died due to rupture of aneurism of arch of aorta. He further stated that "if a man is already having disease of aneurism, then over-strain will accelerate the death". The Commissioner rejected the evidence that Moolchand on 8th May did the work of loading and unloading heavy boxes and he accepted the evidence of harlikar that Moolchand was throughout doing the comparatively light work of cleaning covers. The Commissioner then concluded that he was unable to believe "the applicant's theory of overstrain to the deceased on the date of incident" and that he found no force in the contention that "moolchand died due to strenuous work". In this view of the matter, the application for compensation was dismissed by the Commissioner by his order dated 19th July 1972 against which the present appeal has been filed.

(2.) THE employer's liability to pay compensation under sub-section (1)of sect on 3 of the Workmen's Compensation Act, 1923, arises only "if personal injury is caused to a workman by accident arising out of and in the course of his employment". In the instant case there is no difficulty about the course of employment as the workman died while doing his normal work in the factory where he was employed. The question that arises for consideration in the case is whether the workman's death resulted from an injury by accident arising out of his employment.

(3.) SECTION 3 of the Act is modelled on the lines of similar provisions contained in the corresponding English Acts and English decisions which show a progressive and liberal approach, are useful in understanding and applying this section. In the leading case of Fenton v. Thorley and Co. Limited (1903 A C 443, pp. 448, 449.) Lord macnaghten said that the word "accident" should be understood in the popular and ordinary sense "as denoting an unlooked for mishap or an untoward event which is not expected or designed," and he quoted with approval the opinion of lord M 'laren in Stewart v. Wilsons and Clyde Coal Co. Ltd ( (1902) 5 F 120.) that "if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in, this is accidental injury in the sense of the statute. " In Fenton's case the workman ruptured himself by an act of over exertion in trying to turn the wheel of a machine. The injury occurred while he was engaged in his ordinary work and in doing or trying to do the very thing which he meant to accomplish. The House of Lords in reversing the order of the Court of Appeal and the award of the County Court Judge held that the workman suffered injury by accident arising out of and in the course of his employment. Then in Clover, Clayton and Co Limited v Hughes (1910 AC 242.)the workman died due to rupture of an aneurism while doing his ordinary work in the ordinary Way without any unusual exertion or strain. The aneurism was in such an advanced condition that it might have burst while the man was asleep, and a very slight exertion, or strain, would have been sufficient to bring about a rupture. Even so, the House of Lords held that the rupture of aneurism was an injury by accident as it was an unexpected event so far as the workman was concerned and that this accident arose out of his employment as the strain of the work in which he was engaged, howsoever ordinary it may have been, was in fact one of the contributing causes. The points that can be taken to bs decided in this case are: