Kikubhai alias Kikabhai Fakirbhai Patel vs Mafatlal Fine Spinning and Manufacturing Co. Ltd.

S.L. Talati, J.—Kikubhai alias Kikabhai Fakirbhai Patel who had filed a petition in the Court of Civil Judge (S.D.) and Ex-officio Commissioner under the Workmen''s Compensation Act at Navsari and which was registered as Non-fatal Case No. 7 of 1977 filed this appeal as his application came to be dismissed on 28.8.1978.

The Petitioner was working in the weaving department in the opponent-mills which is a company and having a spinning and manufacturing unit at Navsari. The Petitioner put up a case that on 20.10.76 while he was working in the weaving department he had severe chest pain at about 2.30 p.m. and he was required to go to the dispensary of the Mills and ultimately he was referred to civil hospital at Navsari. Thereafter he was treated by Dr. Thakorbhai and it was diagnosed that he had heart trouble and ultimately he was advised not to do any hard work. He thereafter resigned. After his resignation was accepted he obtained his gratuity and other benefits which he was entitled to and thereafter he submitted claim petition on 3.11.1977 and by that petition his case was that he was entitled to a sum of Rs. 30,240/- as compensation with running interest at 9% from the date of the application till realisation. According to him his average monthly pay was Rs. 510/- and because there was permanent total disablement he was entitled to the above amount.

The claim petition was resisted by the opponent-Mill-company by filing written statement at Exh. 9. It was admitted that the Petitioner was a workman serving in the Mill-company. It was also admitted that while the Petitioner was working in the Mills he had pain in the chest and therefore, he was sent to civil hospital for treatment. The other averments were denied.

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The admitted facts are that the Petitioner was serving in the weaving department of the Mill-company from 1951. He had chest pain while he was on duty on 20.10.1976 at about 2.30 p.m. He was sent to the dispensary of the Mills and thereafter he was referred to civil hospital at Navsari. He thereafter took treatment from Dr. Thakorbhai. Before we go to the evidence of the two doctors who examined or treated him we would refer to the document Exh. 62 which is an accident report. Here again there is a controversy. The Mill-company''s case is that there was no accident and therefore, this report was not required to be filed in. However, as the inspector insisted the report was sent. It is not the case of the company that anything which was suggested in the report was false. Therefore, the fact remains that though the Mill-company did not admit that there was an accident, in the report there is a clear admission of the fact and that fact is that on 20.10.76 the Petitioner started his work at 7.00 a.m. and at about 2.30 p.m. while working he got severe pain in chest and thereafter there is an averment that he was sent to M.G.G. (Civil) Hospital, Navsari for treatment. Now that, therefore, one fact is established and that fact is that on that day the Petitioner who was a weaver worked in the weaving department in the loom shed from 7.00 a.m. onwards till 2.30 p.m. at which time he had got severe pain in the chest. These facts cannot be disputed. Thereafter on behalf of the Petitioner Dr. C.R. Gandhi who was serving as civil surgeon and who is qualified M.S. and who examined him on 20.10.1976 stated that the Petitioner was referred to him by the Mill-company and he treated him. He had given certificate Exh. 24. In the certificate Dr. Gandhi stated as under:

This is to certify that Kikubhai Fakirbhai attended this hospital on 20.10.76 with a note from The Mafatlal Fine Spg. and Mfg. Co. Ltd., Navsari and with a complaint of Tain in Chest'' while he was working.

He was advised complete rest and certain investigations were done. He did not attend the hospital thereafter till today. However, the E.C.G. taken by Dr. Thakorelal M. Desai, Sayaji Road, Navsari, on 12.11.76 shows that there is ''Posterior Myocardial Infraction''.

This certificate is dated 1.12.1976. Now from this certificate one thing becomes clear that when the Petitioner went to Dr. Gandhi with a note from the Mill-company he complained that he had pains in chest. Doctor after certain investigations advised him complete rest. In his evidence he stated that he advised complete rest because of heart trouble. Now, therefore, from the evidence of Dr. Gandhi it was abundantly clear that from the investigations that he did he came to a definite conclusion that the chest pain was because of heart trouble and that the Petitioner required complete rest. Here we may mention that the evidence is led to show that this Petitioner went to the Mill-company on 5.11.1976 and on 6.11.1976. This is established by the evidence of Ishwarlal Naik Exh. 64 who was serving as a clerk in the weaving department. It is his duty to mark presence in the muster roll. He is not a person who would be able to say whether a person worked on that day or did not work. However, it was for the Petitioner to say as to what he did on those two days in the Mills. He in his evidence stated that he did not remember to have gone to the Mills on those two days. According to him he could not say definitely whether he was present on duty on 5th and 6th November, 1976 in the Mills. The best person was the Petitioner to say as to whether he had gone to the Mills on those two days and if he had gone, how much work he did or if he had not done, for what other purpose he had gone to the Mills. He did not say anything and just contended by saying that he did not remember. The Mill-company established that the muster roll showed that he remained present on those two days. However, they also did not establish as to whether he worked and if he worked for how much time. But the evidence established that the Petitioner did go to the Mill-company and got his presence marked on 5th and 6th November, 1976. Thereafter on 12.11.1976 his cardiogram was taken by Dr. Thakorbhai who is examined at Exh. 52. He had produced the cardiogram at Exh. 53. He prescribed medicines and the prescription is produced at Exh. 54. Dr. Thakorbhai is M.B.B.S. and M.R.C.P. and he is practising for the last 35 years. In his evidence he stated that the nature of the disease was Posterior Myocardial Infraction. According to him that would mean heart attack. He also stated that the drugs prescribed were for heart disease. He gave certificate, Exh. 25 which reads as under:

This is to certify that Kikubhai Fakirbhai Patel is under my treatment. He is suffering from Myocardial Infraction and due to this he is unable to work in the Mill and so he is unfit for mill work.

Exh. 53 shows that there is a remarks column where the history of the patient is shown and the history shows that he had tense, precardial pain on 20.10.1976.

The above evidence would clearly establish that on 20.10.1976 the Petitioner had severe chest pain which is diagnosed by Dr. Gandhi Exh. 58 after investigations to be the heart trouble and he was advised complete rest. After that it is quite likely that a Mill hand who never understood the consequences may have attended the Mills for two days. But it further appears that thereafter he did not and perhaps could not attend the Mills. On 1211.1976 his cardiogram was taken and what was found was that there were signs of previous attack. The doctor would not be able to say as to whether the previous attack was on 20.10.1976 or on any other date. But the other evidence on record clearly established that the first attack was on 20.10.1976 and thereafter the condition deteriorated on 12.11.1976 and on that day, therefore, he went to a heart specialist where his cardiogram was taken and ultimately it was found that it was a case where there was Posterior Myocardial Infraction. The question which is required to be determined is whether this could be considered to to be an accident and further this could be considered as an injury. There is no dispute that the Petitioner was a workman and that whatever happened, happened in the course of his employment while he was on duty. The question which is required to be considered is, therefore, whether it is a personal injury by accident which arose out of the employment meaning thereby that whether there was any causal connection between his employment and the injury, if caused?

The learned advocate Mr. Shelat strenuously urged that there was no causal connection established. He referred to two cases. The first case to which reference was made was a case of the Divisional Controller, Gujarat State Road Transport Corporation v. Bai Jiviben Arjan and Anr. 1981 A.C.J. 188 (Guj.). It was a case of an assistant traffic inspector attached to the Gujarat State Road Transport Corporation, who got a heart-attack while on duty on 26th May, 1972. He was an assistant traffic inspector who was travelling in an S.T. bus plying between Rajkot and Navlakhi and when the bus was on its way to Morvi, he got a heart attack and was removed to hospital at Morvi. His duty was to travel in the bus which he is expected to inspect, note its number, the conductor and driver, the route, the time taken by the bus, number of passengers who travelled and check the tickets whether properly issued by the conductor or not. In that case it was held that his duties were ordinary duties which were neither excessive nor strenuous and he died of the disease from which he suffered and not because of his duties or employment.

The second case to which reference was made was the case of Municipal Corporation for Greater Bombay v. Sulochanabai Sadashiv Joil 1978 A.C.J. 208 (Bom.). It was a case where a bus starter; died because of heart failure. His duties consisted mainly of maintaining the record; of arrival and departure of buses. It was also held that he had clerical duties. He was not a workman within the meaning of Workmen''s Compensation Act. In that case it was held that the word ''injury'' and ''accident'' imply the existence of some external factor to cause death apart from internal ailment of the body. Some causal connection between the employment and the death independently of the bodily ailment must be shown to invoke Section 3.

So far as this case is concerned as the bus starter was a clerk and he was not held to be a workman the other questions which were discussed were incidental. However, so far as the first case is concerned on facts it was found that the assistant traffic inspector was required to perform his ordinary duties which were neither excessive nor strenuous and he died of the disease from which he suffered. This is a finding of fact. Here we have a case where the person was neither a clerk nor a person who was required to perform ordinary, routine and non-strenuous duties. He was required to work in a Mill in the weaving department which is to be considered to be a strenuous work. He had reported to duty on that day as per Exh. 62 at 7.00 a.m. After many hours of strenuous work he had chest pain at 2.30 p.m. which Was so severe that the Mill-company itself by a note referred the man to the civil hospital where after investigations it was found that the person suffered from a heart trouble and was required to take complete rest.

We may refer to certain other cases and the first case is a case of Fife Coal Co. Ltd. v. Young (1940) 2 All E.R. 85 . It was a case of a packer who sustained physiological injury in the reasonable performance of his duties and as the result of work in which he was engaged at the time of the injury, the injury resulted in incapacity. The important observations which are required to be noted are as under:

The phrase ''injury by accident'' as used in successive Workmen''s Compensation Acts has been the subject of repeated and elaborate discussion and in the course of the 40 years or more which have passed since the first decision under the Act of 1897, it is possible, as Lord Tomlin pointed out in Walker v. Bairds A Dalmellington Ltd. to trace a gradual but steady extension of its meaning. The early cases seem to have been decided on the footing that the word ''accident'' was to be interpreted in the sense in which it was understood in policies of insurance as describing some event of a fortuitous and unexpected charater.

Now the expression ''accident'' is used in the popular and ordinary sense as denoting an unlooked for mishap or an untoward event which is not expected or designed. In other case it was observed 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, there is accidental injury in the sense of the statute. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss.

In regard to ''injury'' in the same ruling at page 91 the following observations are important:

A man suffers from rupture, an aneurism burst, the muscular action of the heart fails, while the man is doing his ordinary work turning a wheel or a screw, or lifting his hand. In such cases, it is hardly possible to distinguish in time between accident and injury. The rupture which is an accident is at the same time an injury, from which follows at once, or after a lapse of time, death or incapacity.

Now, therefore, whenever something which is not expected happens and as a result there is an injury one may not have to look to only external injury. Any internal injury in the body would also amount to an injury, it may be a rupture of heart, it may be a rupture of vein, or it may be some thing internal which may be dangerous to the human being. Now, therefore, there cannot be any difficulty in coming to the conclusion that the chest pain which was because of heart trouble was accidental in the sense that it was not expected and it was certainly an internal injury. It did happen at the time while he was working. The only question that remains is whether there was any causal connection between the injury and the work that he was doing. We have already observed that in the Mill, in weaving department, one has to put strenuous work which he was doing on that day from 7.00 a.m. onwards.

Another case which is of importance is the case of Diva Kaluji Vs. Silver Cotton Mills Ltd., . It was a case of a normal healthy worker working eight hours on a hot day in Ahmedabad in the weaving department of a textile Mill. He collapses and is taken to the hospital and the police surgeon opines that Kaluji was feeling giddy, complained of being unconscious and clinical examination revealed nothing abnormal. On that very day Kaluji died at about midnight. There was no evidence to suggest that the death was due to any disease which could be diagnosed or which could be disclosed on a mere superficial examination. The Division Bench of the Bombay High Court comprising of Chagla, C.J. and Dixit, J. observed on these facts as under:

There are occasions when the Court is compelled to draw inference which naturally and inevitably arises from such evidence as there is on the record. The mere paucity of evidence should not relieve the Court of its obligation to come to a conclusion on necessary and material issues.

Thus, where the certificate of the police surgeon establishes that the giddiness and the collapse of a workman while working in a Mill on a hot day was not due to any disease which was capable of being discovered by clinical examination and that very day the workman dies at about mid-night, then it is a natural inference to draw that when a man suddenly collapses and dies very soon after and the doctor is not in a position to suggest any reason for this sudden collapse and the death ensuing, that he was suffering from heart trouble which cannot be discovered on a mere clinical examination.

It was further observed as under:

Where a workman suffering from heart disease after working for eight hours on a hot day in a Mill dies, then it is proper to hold that he died of injury by accident arising out of and in the course of his employment.

October is the hot month in Gujarat and it is in evidence that the Petitioner was working on that day right from 7.00 a.m. till he had heart trouble and severe chest pain at 2-30 p.m.

The last case to which reference is required to be made is the case of Madras State Electricity Board v. Ambaz-hathingal Ithachutti Umma (1966) 2 L.L.J. 12. It was of a person who met with an accident on 16th December, 1959, in the dam construction in Nilgiris district when he was working in the job of loading and unloading. He was taken to hospital where he died on 18th December, 1959, as a result of the accident. The report of the supervisor was that the deceased died of sickness, in the ordinary course, while he was an in-patient in the hospital and did not meet with an accident while he was on duty. The report of the medical officer of the hospital where the deceased was admitted and treated was also filed in the case. The doctor stated that the deceased was complaining of chest pain and giddiness. He found some tenderness over the substernal area of the chest and lung signs in the form of rales and rhenche. Clinically, his heart was found to be enlarged. When he enquired the deceased about the pains, the deceased told him that he had occasional attacks of substernal pains. The doctor stated that the deceased died as a result of heart failure. The Court held as under:

acceleration or aggravation of an employee''s heart conditions, thereby causing death or disability, may constitute a compensable injury within the meaning of the Workmen''s Compensation Act. The sudden manifestation of the heart condition from the effect of strain or over-exertion at work constitutes an accidental injury within the meaning of the Act. In all cases it must be determined whether the real cause is the disease or the hazard of the employment.

On a review of the entire case law on the subject, it was held as under:

It is desirable and in accordance with the general rule that the Workmen''s Compensation Act should be broadly and liberally construed in order to effectuate their evident intent and purpose in the application of the provisions which govern the nature and determination of injuries for which compensation may be had, Court should favour adoption of liberal construction of the words ''by accident arising out of and in the course of employment''.

The principle in heart cases seems to be that if death or disability is due to heart attack which resulted from the exertion of the employee in the performance of his duty, compensation should be awarded. If death of an employee is brought about by an injury due to some mishap, or accident, happening during the course of his employment, the fact that the deceased had a chronic ailment which rendered him more susceptible to such injury than an ordinary person would be, will not defeat the right to compensation. The fact that the injury and preexisting disease combined to produce the disability does not prevent the injury being compensable and it is not necessary to prove that the injury accelerated or aggravated the disease or that the accident was a contributory cause. If the accidental injury suffered in the course of his employment is the proximate cause of the employee''s death, the previous physical condition is unimportant.

In this case the Mill-company tried to bring the evidence to establish that there were other workers of his age and some 6 or 7 persons of more age than the Petitioner working on that day. It was so stated by Indravadan Chimanlal, Exh. 68 who was working as a Supervisor on that day. He tried to suggest that the working hours and nature of work of all 50 workers were the same who were in his charge. In the same condition if many persons work it is not necessary that an accidental injury should occur to each and every person. Every person has a different physic and his condition on every day and at every point of time differs from the other individual. The comparison of this nature could only lead to absurd results. The real question which is required to be decided is whether the workman was doing strenuous work and while so doing did he or did he not receive an injury to his heart ? If the answer is yes and if it is found on facts that while so working strenuously he did receive injury to his heart, all the ingredients which are specified in Section 3 of the Workmen''s Compensation Act, 1923, are fulfilled. In our opinion, therefore, the Petitioner is entitled to compensation.

The next question which is required to be considered is as to what compensation he would be entitled to. The learned advocate Mr. Shelat submitted that the burden of proof was on the Petitioner and he did not establish that as to how much extent his earning capacity was diminished by this particular heart trouble. He relied upon a case of Calcutta Electric Supply Corporation Ltd. v. Habul Chandra Das 1968 A.C.J. 270 (Cal.). He relied upon the observations where it was stated as under:

It must be proved by evidence which will establish that the workman was, as a result of the injury unable to earn as much as he did before. This being a question of fact it has to be proved by the evidence like any other question of fact.

We may only refer to Section 4 of the Workmen''s Compensation Act, 1923, where Section 4(1)(c)(ii) reads as under:

4 (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:

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(c) Where permanent partial disablement results from the injury--

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(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury.

There is evidence on record to show that because of this particular heart trouble the Petitioner was advised not to do any hard manual work, as a result, he in fact resigned. He in his deposition stated that he was unemployed. There is no cross-examination on that point. Therefore, he prayed for total permanent disablement. However, the medical evidence showed that he was capable of doing light work. Here also there is evidence that by the time his evidence was recorded he was able to come in rickshaw to the Court and slowly climb the staircase. This would mean that though he was forbidden to do strenuous work he would be able to do some light work. A Mill hand who had not received any education would not be able to do some clerical job but do some manual work which might involve less strain. Under these circumstances we would only say that his earning capacity is permanently reduced to 50%.

The result would be that the appeal is partly allowed and the Appellant would be entitled to Rs. 15,120/-. He would also be entitled to simple interest at 6% from the date of the application till realisation and proportionate costs throughout.