M.F. Saldanha, J.
1. This is an appeal which creates a rather delicate situation for the Court and raises, once more a situation whereby the Court is required to almost bend over backwards for purposes of moulding a relief within the framework of the law. Though the issue appears to be relatively simple, namely, the question as to whether under the provisions of the Workmen's Compensation Act the heirs of the deceased employee are entitled to compensation in the light of the unusual facts of this case, the time frame itself and the paucity of evidence before the Trial Court have seriously complicated the matter. The appellant, in the year 1980, was employed as a supervisor with the first respondent-company. At the relevant time, his salary was Rs. 801.80 per month. He was deputed to visit Bangalore in connection with some official duties and, in the course of this visit, that too on a Sunday, he suddenly died of cardiac arrest. His widow who is the present appellant No. 1, on her behalf and on behalf of the three minor daughters and one son, filed an application for compensation before the authority constituted under the law. The case made out by her was that her husband was in the prime of his life, that he had absolutely no history of any cardiac ailment or any other serious problems of any kind. It is her case that he was subjected to abnormally high strain and tension in the course of his employment by the Company which included the fact that in addition to his work in the office, he had been deputed to Bangalore and that the cumulative effect of this was that he suffered an injury, though not of the ordinary type and a visible one, which resulted in his death. To amplify the argument, even though no apparent or visible injury or accident had taken place vis-a-vis the employee, the claimants contended that the term injury should be construed in a wider sense as opposed to the conventional approach and that in the facts of the case, if it can be justifiably demonstrated that in the course of employment, the heart of the deceased had sustained an injury which resulted in his death, that compensation is still awardable. The authority concerned dismissed the application principally on two grounds, the first one being that the Act would not apply, because due to a subsequent revision of salary which took place about approximately two years after the death of the appellant's husband, some revision in the pay scales was given effect to, as a result of which, as a notional correction, the salary of the deceased was deemed to have been revised to over Rs. 1,000/-. On this being pointed out, the learned Trial Judge held that the provisions of the Act would not apply to this case. The second ground on which the application was dismissed was that even assuming the Act was applicable, the deceased had died at Bangalore while he was on a visit there on a Sunday and the learned Trial Judge held that it could never be construed, that whatever happened at Bangalore can be termed as being either in the course of or arising out of his employment. The application was accordingly dismissed. The present appeal is directed against that order.
2. Appellants' learned advocate in the course of his submissions, contended that the first ground on which the appellant was non-suited is clearly erroenous. It is his case that the records clearly indicated the salary of the deceased as being Rs. 801.80 as on the date of his death. He submits that it would almost be carrying the proposition to a position of absurdity if one were to take cognizance of am subsequent revision of the salary that has taken place after the death has occurred and that at the highest, this can be treated as a paper or a book adjustment (sic) payment of arrears. What law the contemplates is the status of the person as on the date of the incident and he submits that in so far as the salary as on the date of the incident was below Rs. 1,000/-, that the application was clearly maintainable. Some justification is put forward as regards the view taken by the Trial Court, because the respondents' learned advocate submitted that even though his basic defence is with regard to the second aspect of the case, that from a strictly legalistic angle, the learned Trial Judge cannot be faulted in so far as retrospective application was given to the salary scale and therefore, the salary stood automatically altered to a figure over Rs. 1,000/- by virtue of this situation. He submitted that therefore, the Court should not ignore this change and that no interference could be called for with the finding in question.
3. The position in law is abundantly clear in so far as the Court has to take cognizance of the situation as it obtained on the date when the cause of action arose. Any subsequent revisions cannot be taken into account for purposes of conferring or depriving the Trial Court of jurisdiction on the basis of the salary slab. This is a case in which the salary was increased by virtue of a revision, but there could also be numerous cases in which for a variety of reasons such as a disciplinary proceeding, a salary may get reduced and if such a situation occurs, it can never be argued that the person who would normally be categorised as a workman, has suddenly ceased to be one only because of such a financial adjustment. The submission canvassed on behalf of the appellant is perfectly correct, valid and justified and to my mind, the learned Trial Judge ought to have ignored any subsequent revision, more so when it has taken place after the death of the employee concerned. The position in law is that for purposes of the cause of action and for purposes of ascertaining jurisdiction, the salary level stood frozen as on the date when the cause of action occurred and if that test were to be applied, the Trial Court clearly had jurisdiction to entertain the application.
4. A serious controversy essentially arises with regard to the second head, namely, the circumstances under which the compensation is claimed. The evidence in this case is minimal in so far as the medical evidence consists only of the limited material to indicate that the appellant died of a heart attack at Bangalore. There is no other material nor has the doctor been examined to indicate that an injury had occurred to the system or to the heart of the deceased by something that can be associated with his employment. The appellants' learned advocate relies heavily on the oral evidence of the claimant-wife which has virtually gone uncontroverted whereby she has relied on two circumstances, the first being that the deceased was in perfect health and had no history of any cardiac ailment or any other disease. Secondly, she has contended that it was the stress and strain to which the job functions subjected him, that was the direct cause of his death. What is sought to be contended is that because of these factors to which the deceased was exposed in the course of his employment and which continued right up to Bangalore, because he was on a company assignment, that the provisions of the Act would apply. The submission is that the Workmen's Compensation Act takes into account the situations wherein exposure to hazardous chemicals or situations that could be injurious, which may result in death or personal disability, the nexus between the injury to which the claimant was exposed in the course of employment and the premature death or disablement or injury being directly relatable, that a compensation is payable under the provisions of the Act.
5. The liability under this head is seriously disputed by the respondents' learned Advocate who points out that though one has the fullest sympathy for the situation in which the claimant was placed and for the fact that a relatively young person of 36 met with a sudden end, that this cannot cloud the correctness of the approach which a Court has to adopt. In the first instance, respondents' learned Advocate points out to me that there must be reliable cogent evidence produced before the Court which in this class of cases would necessarily have to be medical records and evidence of medical experts, to definitely indicate that the death has occurred due to circumstances that can be categorised as having been injurious or having resulted in an injury. The learned Advocate submits that no doctor was examined and that there is no medical evidence to establish the above. He further submits that the evidence of the claimant-wife is at the highest in the form of a charge or accusation or perhaps her inference or opinion with regard to the circumstances relating to her husband's employment. He points out to me that in a given situation if there is cogent evidence that an employer has treated the employee like a slave or that he has pushed an employee beyond the limits of physical and mental capacity to a point of breakdown whereby it can be reasonably inferred from the evidence that an injury has resulted which culminated in death, that perhaps the position would have been different, but he submits on the material placed before this Court in this case that the Trial Court was fully justified in holding that the provisions of the Act would not apply. I must clarify that the respondents' learned Advocate has pointed out that his defence is purely on a point of law and that he does not subscribe to the unsatisfactory observation of the Trial Court wherein it is held that because the death occurred on a Sunday, which was a holiday, that the provisions of the Act will not apply. Respondents' learned advocate submits that where the cause of action has taken place within the premises or at the work station, that there is no difficulty, but where the cause of action has taken place at a point of time and at a place and in a situation other than the above, that it would be necessary to attribute a direct nexus and that therefore, what the learned Trial Judge was basically alluding to was the fact that since the death occurred at Bangalore and on a day when the deceased was hot at this work station, that in fact the circumstances are too remote to bring the case within the ambit of the Act.
6. In support of his submission, the respondents' learned Advocate has drawn my attention to certain decisions which I shall briefly refer to. In a decision of the Bombay High Court reported in 1985 (1) LLJ 472, in the case of J.F. Pareira v. Eastern Watch Company Ltd., where an employee who had left the premises of the Company was found dead on the third floor obviously due to some strain that took place because of the fact that the lift was not working, the Court dismissed the claim for compensation holding that under no circumstances, can that situation be attributable to the employer. On an analogy, learned Advocate submits that the principle embodied in this decision is that the direct and clear connection between the injury or death and the circumstances under which it took place is absolutely essential and if the cause is remote or extraneous or different, that the provisions of the Act will not apply. The learned Advocate has also relied on a decision of the Supreme Court reported in l970(l)LLJ 16 in the case of Mackinnon Mackenzie and Co. (P) Ltd. v. Ibrahim Mahommed Issak, wherein an employee of a ship who was admittedly off duty on medical grounds was lost at sea, the Court held that there was no material to hold the employer liable under the provisions of the Act. Appellants' learned Advocate places heavy reliance on this decision to support his proposition that the situation in which a death has occurred must be directly and closely relatable to the employment and in the absence of this, even if, as in the present case, there is a virtually grey area or a question mark with regard to the exact circumstances, the provisions of the Act cannot apply. Next the learned Advocate has drawn my attention to a decision of the Himachal Pradesh High Court reported in Volume 76 FIR 153 in the case of Leela Devi and Anr. v. Ram Lal Rahu and Anr., whereby, a watchman who caught a severe cold in the course of his night duty and thereafter succumbed to the ailment, was disqualified from the compensation under the Act as the Court held that even if this had occurred in the course of employment, that it was no obligation on the part of the employer to provide the watchman with requisite protection which in this case was the proximity of fire and warm clothing in order to avoid such an injury occurring. Though the facts are very different, appellants' learned Advocate submitted that the responsibilities cast on an employer cannot be stretched beyond reasonable limits into situations where the employer has absolutely no control and that the awarding of compensation under the provisions of the Act are attracted only to injuries and injurious effects that result from the employee's duties.
7. There can be no quarrel with regard to the propositions that have been laid down in the aforesaid decisions, but the issue involved in the present case is slightly different. I do concede that the material before the Court is very limited and very wanting. At one stage, appellants' learned Advocate submitted that the matter be remanded so that once the legal position is clarified, his client could adduce the requisite evidence. Having regard to the fact that the death occurred in 1980 and that too in Bangalore and the circumstances in which it happened, to my mind, after the lapse of 15 years, it would be impossible for the claimant to produce any better evidence. A remand would therefore, not serve any useful purpose, I cannot overlook or for mat matter ignore the objections raised on behalf of the respondent, because the principles of law under which compensation can be awarded as well defined and the line or boundaries that are parameters set by the law are very clear in so far as either the employee is eligible or the employee is disqualified. Though I have held on the first count that the application was maintainable, it is necessary for me, having regard to the weak nature of the evidence, to hold that one would have to virtually stretch the law almost to a breaking point in order to bring the present case within the ambit of the provisions. The deceased was an employee of the Company and it may be that he was in perfect health for all apparent purposes. Similarly, the fact that he was relatively young and that he had no serious ailments is a factor in his favour, but on the other hand there is no conclusive evidence to indicate that the duties assigned to him were so strenuous or that he was subjected to so much of stress mentally and physically, that he suffered injuries. On an overall view of the case, if one were to stretch the law to almost a breaking point as indicated by me, the appellant would perhaps be entitled to a compensation in the sum of Rs. 75,000/-approximately.
8. With regard to the approach of the Court in a situation of this type, I need to hold that on a strict application of the law, the appeal would fail on the second head. The appellants' learned Advocate has, however, drawn by attention to a decision of the Supreme Court reported in 1994 AIR SCW 1009 in the case of Smt. Reena Padhi and Ors. v. Owners and Parties and Anr., The Great Eastern Shipping Company Limited, wherein the Supreme Court laid down a principle that would certainly be applicable in situations of the present type. That was a case in which a compensation claim had been pending for 15 years purely on the point of the jurisdiction, because the death had occurred at a foreign port and the Bombay High Court had taken the view that the claim was outside its jurisdiction. When the matter ultimately reached the Supreme Court, the Court took the view that where no useful purpose would be served by going through the full gamut of a regular Court proceedings, but where the conscience of the Court indicated that on the rule of fairness and on humane considerations, both combined with each other, that a certain quantum of compensation would have been otherwise justifiable, the Court directed the employer to pay that amount and conclude the proceedings. Appellants' learned Advocate submitted that she was widowed at a young age and left with three daughters and a son to bring up and in these circumstances, the Court should brush aside all technicalities and even inadequacies if any, and give to the claimants what in the Court's opinion would be a fair compensation and that in these circumstances, the respondents who are a Corporation, should not grudge such payment. I do see sound substance in this appeal, because it is well settled law that in difficult situations, a Court is required to virtually mould a relief in a way to a large extent which would normally not be done, provided the case is a deserving one.
9. Having regard to this factor, to my mind, the interests of justice would be served if the appeal were to be disposed of with a direction that the respondents do agree to pay to the claimant No. 1 on her behalf and on behalf of the children an aggregate sum of Rs. 75,000/- as ex-gratia compensation. It is necessary to categorise the compensation so payable as ex-gratia compensation, because to my mind, even though this is a case where I had observed that the law will have to be stretched to a breaking point, it may not be legally correct to categorise it strictly compensation admissible under the provisions of the Act.
10. The appeal accordingly succeeds. The respondents are directed to pay directly to the appellant No. 1 within a period of 12 weeks from today, a sum of Rs. 75,000/- in the circumstances of the case. It is clarified that the amount of Rs. 6,000/- that has already been paid, shall be adjusted while making the final payment provided that amount has been received by the appellant No. 1.
M.F.A. No. 2210/1993
FOR BEING SPOKEN TO:
29.3.1995
Shortly after this judgment was dictated in open Court, Mr. Kasturi, respondents' learned Advocate applied for a reconsideration of the last aspect of the matter, namely the quantum of compensation which was awarded by the Court on a very substantial ground, namely that the Workmen's Compensation Act was amended in the year 1984 and that the present incident has taken place in 1980. He clarified that after the amendment, the limit of Rs. 1,000/- has been revoked, but more importantly, that there has been a considerable alteration with regard to the scale of compensations payable. He has brought to the notice of the .^, Court that under the amended Act, when the monthly wages were between 900 *v and 1,000 which is the category applicable to the present case, because the --deceased workman was drawing a salary of Rs. 917.20, that the total compensation is limited to Rs. 30,000/-. For this purpose, the matter was placed on board and I have heard the two learned Advocates at considerable length. Mr. Kasturi submitted that in the first instance, the liability or obligation to pay compensation arises as on the date when the death has occurred if it is alleged that this death, or the circumstances under which the death has taken place call for the payment of compensation under the Act. He, therefore, submits that the cause of action has arisen in the year 1980 and that the state of the law as on that date is what is material. It is true that the Court has condoned the delay when the application was filed in 1988, but he submits that the change of law cannot be made applicable in this case in so far as the amendment of 1984 which came into operation on 1.6.1984, clearly specifies that it will not have any retrospective application and that it would apply only prospectively. He relies on the celebrated decision of the Supreme Court in the case of Workmen of F.T. and R. Co, v. The Management reported in : (1973)ILLJ278SC and particularly, paragraphs 53 to 57 of that judgment. An argument was advanced that this was in the nature of a welfare legislation, that Section 11-A had brought about certain far reaching changes which must be given application to in respect to all pending proceedings also and the Supreme Court, after examining the law in great detail and referring to several Indian and English cases, clarified that in the absence of a specific provision giving retrospective application, that the amendment could only apply prospectively. Reliance was also placed on a later decision of the Bombay High Court reported in 1990(1) LLN 178 in the case of Bombay Gas Public Company Ltd. v. P. Akbar and Ors., wherein, while dealing with Section 73A of the Payment of Gratuity Act, the Court held that no retrospective application was permissible.
2. Mr. Kasturi further submitted that even if it is held that some liability existed vis-a-vis his clients or for that matter that the heirs of the deceased workman had a vested right to claim compensation, the enforcement of that right )^ was governed by the parameters of the law in operation as on the date when the ^ cause of action arose and that the right could neither be affected prejudicially nor beneficially by any change in the law. He demonstrated that in the present instance, had the application been filed when it ought to have been filed in 1980 or shortly thereafter, that there would have been no ambiguity about the fact that the unamended provision of the Workmen's Compensation Act would have governed the decision. Under these circumstances, he submitted that it would be legally impermissible to give effect to the change that has occurred, merely because the application was filed at a later point of time.
3. The appellants' learned Advocate has submitted that once the delay was condoned, the application is deemed to have been presented in time i.e., in 1988and it is his submission that the refusal on the part of the respondents to pay the compensation which resulted in the institution of claim proceedings is what must really be construed to be the cause of action in this case and therefore, that the law in operation as on the date of filing of the application is what governs the proceedings. As far as this argument is concerned, I need to observe that the principle and law in the argument is that even if the delay has been condoned in the year 1988, the deemed position in law is that the Court has relegated the appellants to the position in which they would have been had the application been in time, namely in 1980 itself. This is the correct way of looking at the matter. There can be no two opinions about the fact that it is Well settled law that the cause of action is to be determined as far as compensation cases are concerned, when the liability has accrued, namely on the date of the incident and not on the date when the claim proceeding is instituted howsoever early or late. This position is abundantly clear from the fact that the law prescribes serious penalties on the employer who does not deposit the compensation that is due from him within the prescribed time.
4. The respondents' learned Advocate has placed strong reliance on a decision of the Supreme Court reported in AIR 1952 SC 325 in the case of S.V. Parulekar and Ors. v. District Magistrate, Thana, Bombay and Ors., wherein the Supreme Court was concerned with an issue of preventive detention. While construing a provision of the Preventive Detention Act, the Supreme Court observed that when a subsequent Act amends an earlier one in such a way as to incorporate itself or a part of itself into the earlier one, then the earlier Act must thereafter be read and construed in such a way that there is no need to refer to the amending Act at all. One needs to take note of the fact that Supreme Court was dealing with a situation that arises under criminal law, wherein the constitutional safeguards are implicit with regard to the change of law in so far as the change can prejudicially affect an accused person. The present situation is entirely different, in so far as it is not a question of the change of law that we are concerned with, but the simple issue is as to which of the two provisions are to be applied.
5. the respondents' learned Advocate thereafter drew my attention to a Division Bench decision of this Court reported in 1972(1) MLJ 321 in the case of S.C. Sohanraj v. T. Gurushantappa. The Court was concerned with Mysore Act 14 of 1969 whereby certain amendments had been carried out to the Mysore Rent Control Act of 1961. Relying on a passage from Crawford, Statutory Construction -- Interpretation of Laws pages 110-111, the Court observed that 'where a section of a statute is amended, the original ceases to exist and the new section supersedes it and becomes part of the law just as if the amendment has always been there'. In the same decision, the Division Bench had occasion to observe as follows:
An amending Act is not regarded as an independent statute. The statute in its old form is superseded by the statute in its amended form, the amended section of the statute taking the place of the original section, for all intents and purposes as if the amendment had always been there. The amendment should be considered as if embodied in the whole statute of which it has become a part. Unless a contrary intent is clearly indicated, the amended statute is regarded as if the original statute had been repealed and the whole statute re-enacted with the amendment. (Vide Para 468 of American Jurisprudence-Vol. 50 pages 481-482).
The above principles of cannons of construction have been accepted by the Supreme Court in Shamrao v. District Magistrate, Thana. This is what Bose, J. has stated in the said decision.
'The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would -lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.'
No repugnancy or inconsistency between the old and the new subsections have been pointed out to us. When the amending Act has stated that the old sub-section has been substituted by the new sub-section, the inference that the Legislature intended that the substituted provision should be deemed to have been part of the Act from the very inception.
On the basis of this judgment, appellants' learned Advocate submitted that the effect of the amended Act of 1984 is in fact to rewrite the law as it originally stood and once that law has been statutorily done away with and replaced by the new one, that it is no longer permissible to give effect to the unamended provisions without doing violence to the law as is now in existence. To this extent, therefore, he advances a strong submission that the decision to award compensation quantified at Rs. 75,000/- is just and fair and that it does not require any review or modification.
6. As I have indicated earlier, the real issue is not as to what are the legal implications of an amendment or the point of time at which the amendment would come into operation. What the Court is really required to decide in this case is as to when the cause of action arose and secondly, what was the law in operation as on the date when the cause of action arose. There can be no doubt about the fact that the cause of action in this case dates back to the year 1980 and that the unamended law was in operation at that point of time. It is, therefore, those provisions that shall apply and not any later amendments to the law. The solitary exception, to my mind/could arise in a situation whereby a Court of competent jurisdiction has struck down the law in question as being ultra vires or inapplicable and in those situations only, it may be permissible to apply the substituted provisions. Barring that situation, there could be no two opinions about the fact that the unamended provisions of the Act would apply.
7. Having regard to this situation, the quantum of compensation awarded to the appellants would stand altered to Rs. 30,000 /-. I, however, take note of fact that the appellant is the widow of the deceased employee and this Court has had occasion to observe in the judgment that this is a case in which the appellant qualifies for maximum sympathetic consideration. Under these circumstances, the compensation of Rs. 30,000/- shall be treated as being payable on the date on which the application was preferred before the Trial Court and the appellant shall be entitled to interest at the rate of 6% p.a. on that account from the date of filing of the application up to the date of payment. This is the only modification that is called for as a result of the application for reconsideration of the operative part of this judgment.