Bai Anandibai and Others vs Employees'' State Insurance Corporation, Bombay

The applicants who claim to have been the window, a minor son and a minor unmarried daughter of the deceased Dewoo Gopal Ninawe, an insured employee of Victoria Mills, Ltd., Bombay, a factory covered by the Employees'' State Insurance Act, seek to recover dependants'' benefits from the Employees'' State Insurance Corporation, Bombay, in view of the death of the said D. G. Ninawe on 16 September, 1960 due to accident arising out of and in the course of his employment.

The applicants'' case is that the deceased while working suddenly complained of pain in the chest and vomited blood due to exhaustion of work and died immediately on removal to the hospital dispensary and that as the deceased was getting Rs. 130 as pay per month the applicants are entitled to dependants'' benefits at the rate of Rs. 5 per day.

The Employees'' State Insurance Corporation, the opposite party, by written statement contended that the deceased was an insured workmen, that he joined duty at 7 a.m. on 16 September, 1960, that he was working in the stores department in the said mills, that at 1-15 a.m. he went to the latrine, that at about 1-20 p.m. he came out of the latrine when he was seen vomiting blood by Sri Haridas Gopal, another employee of the mills, that after giving him first aid he was removed to the Podar Hospital where he was pronounce dead, that the medical history shows that the deceased was suffering from tuberculosis that the deceased died of natural causes and not due to any employment injury, that opposite party does not admit that the deceased suddenly complained of pain in the chest and vomited blood due to exhaustion of work, that opposite party is not aware of the relationship of the applicants to the deceased employee, that as the death was not due to any employment injury, the applicants are not entitled to any dependants'' benefits, that in case they are held to be entitled to get dependants'' benefits, then as per provision of S. 53(ii) and Sch. II, Rs. 2.50 per day will be available for distribution.

The issues for distribution are :

(1) Do applicants prove that the deceased died of an injury due to accident arising out of and in the course his employment ?

(2) Are applicants dependants of the deceased ?

(3) What benefit are applicants entitled to ?

(4) What order ?

My findings are :

(1) Yes.

(2) Yes.

(3) Rs. 2.50.

(4) See order below.

Reasons

Admittedly one Dewoo Gopal Ninawe was employed as a labourer in the stores department of the Victoria Mills and was insured under the Employees'' State Insurance Scheme. It is also admitted that at about 1-15 p.m. he had gone to the latrine and when he came out he was found vomiting blood. He was taken to the hospital of the factory where he died immediately. It is argued that the strain of work did contribute to the death, at least in part, and that consequently it arose out of the employment. The Employees'' State Insurance Corporation, on the other hand, urges that the deceased was a tuberculosis patient and that he died due to natural causes, i.e., the decease of tuberculosis, and not due to any injury caused by accident arising out of the employment.

Both parties have examined doctors to support their respective versions. Witness Sawant, clerk in the stores department of the mills, states that the deceased worked from 8-15 to 10-30 a.m., that after the lunch interval from 10-30 to 11 a.m. he resumed work, and that at 1 or 1-30 p.m. he collapsed. He also state that the work of the deceased including going up and down three floors of the building 5/10 times for carrying reports and that he had to receive, arrange and issue articles in the stores. But in cross-examination he admitted that due to his not keeping good health the deceased was given light work. In cross-examination he also stated that he did not know if the deceased resumed duty after lunch interval at 11 a.m. On the other hand, opposite party examined Haridas Gopal, the worker who saw the deceased coming out of the latrine vomiting blood. There was no cross-examination of this witness. So Sri Vyavaharkar for the opposite party urged that there is no evidence if the deceased worked after the lunch recess, and that the injury by accident, if any i.e., the rupture of a blood vessel, occurred when the deceased was coming out of the latrine and not earlier. It is urged for the corporation that the rupture of a blood vessel might as well be due to the strain of passing stools, as there is no evidence of any work done between 11 a.m. and the time of the accident. It is also urged that this rupture could be due to the decease of tuberculosis itself which might occur even when resting. So Sri Vyavaharkar argues that there is no causal connexion between the employment strain and the injury, i.e., rupture of the arteries in this case, to make it an accident arising out of the employment.

As against this it is urged that there is no evidence that the deceased complained of any pain earlier so as to make him stop working. The reasonable inference, in the absence of such evidence of previous pain, is that he must be working till 1-15 p.m. unless he got pains earlier. Normally no employee would be allow to sit idle for no excuse. So I see no reason to hold that the deceased did not work till he want to the latrine which was at about 1-15 p.m. With these conclusions, I now pass to the evidence of the doctors to see if this strain of work could be tacked to the accidental injury at about 1-15 p.m. when the deceased was in the latrine or when he was coming out of it.

Admittedly the deceased formerly suffered from tuberculosis and though it seems that he had recovered and was working for nearly two years, applicants'' witness says that he was given light work. The post mortem report records the cause of death as "tuberculosis lungs." It also mentions the condition of the organs : "Left lung - Extensive cavitations of the 2 inches by 2 inches and infiltration congestion lower lobe and bleeding; hear - normal, all other organs - normal." So it is clear that a large cavity was formed in the left lung and there was bleeding due to rupture of a blood vessel as the doctors state. Now the question is if in this condition of the lungs of the deceased the day''s work would cause acceleration of the disease to a crisis of breach of a blood vessel already corroded by disease. The tuberculosis specialist examined for the corporation admitted in cross-examination that if patient in such condition of his lungs goes up and down three staircases and vomits blood within 10 minutes/15 minutes the possibility of the strain of work affecting death or vomiting of blood is not ruled out. He admitted that the rupture of the blood vessel due to strain of work may be caused up to 15 minutes. So it is urged for the applicant, that the causal connexion, however slight it may be, cannot be ruled out.

But this contention presupposes thee climbing up and coming down of three stairs, within 15 minutes of the vomiting. There is no evidence to that effect. The only evidence is that in the course of the day the deceased had to go up three stairs. That is not enough to prove that he did so within 15 minutes before the vomiting. In the examination-in-chief the specialist stated :

"I do not think that the normal work the patient was doing has anything to do with the cavity in the lungs, nor that the work he did that day caused any additional strain to cause haemoptysis. I say that this case of haemoptysis was due to natural causes. If it was due to strain, the effect would be immediately on the spot."

So he does not rule out the possibility of strain affecting the natural cause of the disease. He also explained :

"Any strain that increase the blood pressure considerably will cause the rupture of a blood vessel."

It is true that the erosion of the blood vessels continues due to the tuberculosis germs, strain or no strain, medical treatment keeping them under control for the time being There is little doubt that the accident of rupture of the blood vessel already corroded by the disease, might occur naturally due to the disease without strain But the question in these cases is if the strain of work gave helping hand to the disease to bring the accident nearer In such cases the day-to-day wear and tear of the employment does not amount to cause an accident. But the last day''s strain reaching the accident time would be treated as causing the accident if the causal connexion is established.

So here is a case that the deceased with an already corroded blood vessel and a large cavity in the left lung worked on that day. He was to go up and down three staircases to receive, arranges and issue goods from the stores and go to various departments 5/10 times in a day to give reports and brings remarks. There is no evidence whether the work caused a rise in the blood pressure. The doctor-witness examined for applicant, Dr. Sunawala, F.R.C.S., does state that physical exertion in such a case can precipitate death, the strain of work aggravating the disease. He admitted in cross-examination that without strain the rupture of the blood vessel would occur. But that does not negative the statement that strain of work aggravates it. He stated that even strain of passing stool may bring about rupture. But opposite party''s expert witness has explained that normally passing urine or stool does not involve strain enough to cause rupture of a blood vessel. There is no evidence if the deceased did pass stools when he went to the lavatory.

So here is a case when the applicants witness states categorically that physical strain of work would accelerate death in such cases. The opposite party''s witness has not ruled out the effect of the strain of work, but he qualifies it by saying that the effect would be immediate. But he conceded in the re-examination even, it would last for 15 minutes. So there is enough evidence to hold that the strain of work the deceased was doing could accelerate the accident and even according to opposite party''s witness, the effect could be up to 15 minutes. If he is considered to be working till 1-15 p.m. and the accident occurred within 5 minutes, it is reasonable and just to infer the strain of the day''s work did accelerate the rupture of the artery which caused the bleeding and precipitated death. In these circumstances, I hold that a causal connexion between the employment strain and the accident leading to death is established sufficiently.

The applicant has gone in the box to swear her relationship with the deceased. There is no cross-examination of her on this point. I see no reason to disbelieve her. I hold that the applicant-widow, the minor son Vijay of six years and minor daughter Asha of eleven years are dependants.

The amount available for distribution is Rs. 2.2/5. Under Sch. II of the Employees'' State Insurance Act, the widow, unmarried daughter and minor son are entitled to benefits in the 3/5, 2/5 and 2/5. So I allow Rs. 1.06 to widow and 72 nP to each of the minor son and unmarried daughters. Though it was not disputed, ultimately in the application the full rate of Rs. 5 was claimed for distribution. But under Sch. II Rs. 5 is the average wage and under rule 3 of the schedule the dependants'' benefits will be half of the average wage, i.e., Rs. 2.50 as opposite party has stated. I agree with opposite party on this point.

ORDER

Applicants are entitled to claims dependants'' benefits from opposite party from 17 October, 1960. I allot Rs. 1.06 to the widow and 72 nP per day to each of the minor son Vijay and unmarried daughter Asha.