GENERAL SUPERINTENDENT, TALCHER THERMAL STATION Vs. BIJULI NAIK

JUDGEMENT

(1.) This is an appeal under Section 30 of the Workmen's Compensation Act (for short, referred to as 'the Act') and an interesting question of law has been raised. The question that arises for consideration is: what is the true meaning of the expression 'arising out of and in course of his employment' used in Section 3(1) of the Act? Section 3(1) of the Act is extracted herein below in extenso: 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 liable - - (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) 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. Mr. Nanda, the learned counsel appearing for the petitioner, contends that there must be a nexus or proximate connection between the accident in question and the employment of the workman. If there is no connection, causal or proximate, between the accident and the employment of the workman, then the employer will not be liable to pay any compensation for the injury or death of the deceased workman.

(2.) IN order to appreciate the aforesaid contention, it is necessary to briefly state the facts of the present case. Late Tirtha Naik was admittedly an employee under the petitioner. He was working as a helper in the Mechanical Department. After completing his duties he came back home on Saturday, the 3rd of February, 1990 and availed of his weekly holiday on Sunday, the 4th. On Monday, the 5th February, 1990, he left his home to join the general shift in the factory which starts at 8.00 a.m. A colleague of the deceased, one Bijaya Kumar Naik, informed the claimant, Bijuli Naik, that her husband, Tirtha Naik, was feeling uneasiness at the factory gate. She immediately rushed to the spot and was informed that her husband had been shifted to the hospital and at the hospital she found her husband dead. She, therefore, filed an application before the Commissioner under the Workmen's Compensation Act claiming compensation. It was stated in the application that Tirtha Naik died due to coronary thrombosis. The employer filed a written statement taking the stand that late Tirtha Naik did not suffer any injury during and in the course of his employment and the accident did not take place during and in the course of his employment and, therefore, the employer is not liable for payment of any compensation. It was also stated that there was no official communication that late Tirtha Naik was coming to the duty and the claimant had not served any notice on the employer of the alleged incident.

(3.) THE pre -conditions for attracting the provisions of Section 3(1) of the Act are that death or injury must be caused to a workman; the said injury must have been caused by accident; and the accident must have arisen out of and in the course of his employment. A causal connection between the employment and the injury caused by the accident must exist. If after looking at the entire facts, a fair inference can be drawn that the employment caused the injury, then the employer would be liable to pay the compensation. The liability under Section 3(1) of the Act would accrue, if it is established that an injury has been caused to a workman and the accident arose out of and in course of his employment. The expression 'injury' has not been defined in the Act, but it is of wide import. The dictionary meaning as given in Oxford Dictionary is 'wrongful action or treatment, harm, damage'. 'Personal injury' spoken of in Section 3(1) may lead to death or disablement or impairment of the powers of the body and mind in either of which event the employer is liable to pay compensation if the conditions laid down in Section 3(1) of the Act are satisfied. This view was expressed by the Bombay High Court in the case of Mariambai v. Mackinnon Mackenzie and Co. Pvt. Ltd. 1967 ACJ 348 Bombay. 'Occupational diseases' which are especially incidental to a particular employment are also held to be 'personal injuries' which would come within the ambit of Sub -section (2) of Section 3 of the Act. Coming to the meaning of the word 'accident', in Halsbury's Laws of England, it has been stated: The term 'accident' generally means some unexpected event happening without design, but perhaps no general definition can be given of the word to cover all cases falling within the Act. To decide whether an occurrence is an accident, it must be regarded from the point of view of the workman who suffers from it, and if it is unexpected and without design on his part, it may be accidental though intentionally caused by the author of it, or caused by some act committed wilfully by him... The word 'accident' in Section 3(1) has been used in the popular and ordinary sense and means 'mishap' or 'untoward event not expected or designed'. In the case of Parwatibai v. Manager, Rajkumar Mills AIR 1959 MP 281, it has been held that 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 some other cause to be found in the condition of the workman himself. The basic and indispensable ingredient of 'accident' is unexpectedness and the second ingredient is that injury must be traceable, within reasonable limits, to a definite time, place and occasion or cause. If the death or the disability is due to heart attack which resulted from the exertion of the employee in the performance of the duties of his employment, the compensation should be awarded under the Act. [See Madras State Electricity Board v. Ambazhathingal Itha -chutty Umma (1966) 2 Lab LJ 12]. The Gujarat High Court in the case of Bai Shakri v. New Manekchowk Mills Co. 1958 -65 ACJ 53 (Gujarat), held: Though the word 'accident' occurring in Section 3 of Workmen's Compensation Act is not defined in the Act, the word has been the subject -matter of a number of decisions as a result of which it has come to acquire a settled meaning. The word 'accident' generally means some unexpected event happening without design even though there may be negligence on the part of the workman. It is used in the popular and ordinary sense and means a mishap or an untoward event not expected or designed. What the Act really intends to convey is what might be expressed as an accidental injury. It includes not only such occurrences as collisions, tripping over floor obstacles, fall of roof, but also less obvious ones causing injury, e.g., strain which causes rupture, exposure to a draught causing chill, exertion in a stokehold causing apoplexy and shock causing neurasthenia. But the common factor in all these cases is some concrete happening at a definite point of time and incapacity resulting from the happening. The next element of the section is the expression 'arising out of and in the course of employment'. This expression has been taken from the English Act of 1897. It has also been adopted in the American and the Dominion Acts and this phrase has received the greatest amount of judicial consideration. Lord Macmillan in the case of Mecullum v. Northumbrian Shipping Co. Ltd. (1932) 147 LT 361, held: That few words in the English language had been subjected to more microscopic judicial analysis than these, and in the effort to expound them, many criteria had been proposed and many paraphrases suggested. But it was manifestly impossible to exhaust their content by definition, for the circumstances and incidents of employment were of almost infinite variety. This at least, however, could be said that the accident in order to give rise to a claim for compensation must have some causal relation to the workman's employment and must be due to risk incidental to that employment as distinguished from risk to which all members of the public were alike exposed. The Calcutta High Court in the case of Golden Soap Factory (P) Ltd. v. Nakul Chandra Mondal AIR 1964 Cal 217, held:.There is hardly any general principle which can be evolved to explain and define the phrase 'arising out of the employment' but attempts have been made to explain it by classification, viz., to the nature, condition, obligations and incidents of the employment. Whether in a given case an accident arises, on the one hand, out of the injured person's employment, although he has conducted himself in it carelessly or improperly, or, on the other hand, arises not out of his employment but out of the fact that he was outside the scope of it, or has added to it some extraneous peril of his own making, or has temporarily suspended it while he pursues some excursus of his own, or has quitted it altogether, are all questions which, often as they arise, are susceptible to different answers by different minds as explained by several well -known Judges and jurists and are always questions of nicety. So it is here. I doubt if any universal test can be found. Analogies, not always so close as they seem to be at first sight, are often resorted to, but in the last analysis each case is decided on its own facts. But the general principles are that (i) there must be a causal connection between the injury and the accident and the work done in the course of employment; (ii) the onus is upon the applicant to show that it was the work and the resulting strain which contributed to, or aggravated, the injury; (iii) it is not necessary that the workman must be actually working at the time of his death or that death must occur while he was working or had just ceased to work; and (iv) where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed. But where the accident involved a risk common to all humanity and did not involve any peculiar or exceptional danger resulting from the nature of the employment, or where the accident was the result of an added peril to which the workman, by his own conduct, exposed himself and which peril was not involved in the normal performance of the duties of his employment, then the employer will not be liable under Section 3 of the Act. Chief Justice Chagla in the case of Laxmi -bai Atmaram v. Chairman and Trustees, Bombay Port Trust AIR 1954 Bom 180, was considering a case where the deceased was a watchman and was on night duty on the night of 20th August, between 7 p.m. and 7 a.m. At 1 a.m. on 21st August, he complained of pain in his chest and he was asked to lie down. Finally, his condition deteriorated and he died at about 6 a.m. and the medical evidence showed that the deceased was suffering from heart disease and the death was brought about by the strain caused by the deceased being on his legs for a certain period of time. The question was whether he died of injury by an accident arising out of, or in the course of his employment. The learned Chief Justice observed:.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... In that case, the learned Chief Justice has observed that if the workman died as a natural result of the disease from which he was suffering, then it cannot be said that the death was caused out of his employment and if a workman was suffering from a particular disease and as a result of wear and tear of his employment, he died of that disease, no liability can be fastened upon the employer. But it is equally established that if the employment is a contributory cause or the employment has accelerated death or it can be said that the death was due not only to the disease but the disease coupled with employment, then the employer would be liable and it can be said that death arose out of employment of the deceased.