Varghese Kalliath, J.
1. Rajan, a conductor of a bus, died of heart-attack. He died on 15th October, 1981, while he was sleeping in the bus. The end came suddenly before he reached the hospital. The bus in question is KLG 2342.
2. The young widow of Rajan along with her minor child, Dileep, filed an application under Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act'). She filed her application on 16th February, 1982, complying with the requirements under Rule 20 of the Kerala Workmen's Compensation Rules (hereinafter referred to as 'the Rules'). The widow--the applicant--claimed an amount of Rs. 21,000 as compensation for the death of her husband.
3. Opposite party No. 1, the owner of the vehicle, admitted that the deceased, Rajan, was a workman--conductor--employed under him. The monthly wages of Rajan was also admitted. The specific case of opposite party No. 1 is that the death of Rajan is a natural death and will not come under the purview of the provisions of the Act and as such he is not liable to pay compensation. It was contended that the death occurred while Rajan was not on duty. He said that Rajan had no obligation or necessity to sleep inside the bus and that it was not permitted or authorised for the deceased to sleep in the bus. Opposite party No. 1 further submitted that even if Rajan is entitled to any compensation, that compensation has to be paid by opposite party No. 2, the insurance company.
4. The second party - insurance company-also submitted that there is no liability to pay the compensation claimed by the widow of Rajan.
5. The Deputy Commissioner, Workmen's Compensation, Trichur, considered the matter very elaborately and came to the conclusion that Rajan died while he was on duty and that though the death occurred due to heart attack, it was on account of the stress and strain of the work Rajan was involved in the employment. The Commissioner found that the vehicle was insured with opposite party No. 2 and as per the terms of the said policy, opposite party No. 2 is liable to pay compensation for damages caused to the person employed as driver, cleaner and conductor. The Commissioner found that the first and second opposite parties are jointly and severally liable for the payment of compensation. The Commissioner fixed an amount of Rs. 21,000 as compensation payable to the widow and the minor child of the deceased, Rajan. Now, the second opposite party appeals.
6. Learned Counsel on both sides argued the case very ably. Learned Counsel for the appellant did not very seriously press that the death had not occurred during the course of employment. The Commissioner, on a careful analysis of the evidence, found that the duty hours of the deceased, Rajan, was from 1 PM to 10.45 PM on the first day and from 5 PM to 11 AM on the next day, i.e. one shift duty which is treated as two days duty. The Commissioner states that these facts are evidenced from the depositions of AW-2 and MW-1. It was found that the deceased, Rajan, has to get himself ready for work at about 5 A.M. and for that purpose he has to wake up by about 4 or 4.30 AM. The Commissioner also found that the shift duty of Rajan was spread over from 1 PM on the first day to 1 PM on the next day and that it covered 24 hours with rest only for 5 hours, i.e. , 10.45 PM to 4 AM. From these facts, the Commissioner concluded that the interval between duty hours is so limited and Rajan has to perform strenuous work from 1 PM to 10.45 PM and from 5 AM to 1 PM and so considering the hours of work., it definitely caused stress and strain both mentally and physically and this could probably be a cause for his cardiac disease.
7. There is clear evidence in this case that on the day previous to the death, the deceased had worked from 1 PM to 10.30 PM.
8. There is evidence in the case that the management has not provided any rest room for the driver and conductor at the place of halting the vehicle. AW-2 has deposed that it was obligatory on the part of the driver and conductor to remain in the vehicle at the place of halt. This is so because no shelter is provided for the driver and conductor and there was no shed for protection and safety of the vehicle at the place of halt. AW-2 has further deposed that the driver and the conductor were sleeping in the vehicle as instructed by opposite party No. 1. From the evidence adduced in the case, it is reasonably and legitimately probable to draw a conclusion that it was part of the duty of the deceased to be physically present in the vehicle at the place of halt for the reason that no shelter for the rest of the employees is provided by the owner of the vehicle and also for the safety and protection of the vehicle. The question raised by counsel for the appellant is whether the circumstances proved in the case would attract the provisions of law enjoining the liability to pay compensation by the employer to the employee. The relevant Section under the Act is Section 3 which reads thus:
3. Employer's liability for compensation-- (1) If personal injury is caused to 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.
Two most important limbs for the application of the Section are that the accident should arise out of and in the course of his employment. (emphasis added). Learned Counsel for the appellant submitted that even if all the facts alleged have been found proved, it cannot be said that the accident had arisen out of the employment. A Division Bench of this Court has considered the scope and width of Section 3 in Devshi Bhonji Kohna v. Mary Bumo 1984-II-LLJ-70. In considering the scope and width of Section 3, the Division Bench has given 1 importance to the beneficent object of the Act. Bhaskaran, Acting C. J., speaking for the Division Bench, said thus (at p. 71):
The object behind the legislation being protection to the weaker sections with a view to do social justice, the provisions of the Act have to be interpreted liberally, so that, other things being equal, the leaning of the court has to be towards the person for whose benefit the legislation is made. Bearing this principle in mind, the expression 'accident' found in Sub-section (1) of Section 3 of the Act has to be understood as meaning a mishap or untoward event, not expected or designed. In other words, the basic and indispensable ingredient of an accident is the unexpectation. In this case, the workman who was already suffering from heart disease, as disclosed by the oral evidence of the co-worker of the 1st respondent's husband, and Ex. W1 medical certificate, when he was subjected to over-exertion, there was a sudden deterioration in his health which proved to be fatal. But for this over-exertion, which ; he was not able to bear in the state of health in which he was then, the death, following his fall while carrying the cashew boxes, would not have occurred. In this way, there is a casual connection between the employment and his death in the unexpected way. This could certainly be considered to be an accident arising out of and in the course of his employment which would entitle the dependent-legal heir to claim compensation.
In order to say that the accident has arisen out of and in the course of the employment, there should be some casual connection between the employment and the death.
9. Though it is necessary that there should be a casual connection between the employment and the death in the unexpected way in order to bring the accident within Section 3, it is not necessary that it should be established that the workman died as a result of exceptional strain or some exceptional work that he did on the day in question. If the nature of the work and the hours of work caused great strain to the employee and that strain caused the unexpected death, it can be said that the workman died as a result of an accident which has arisen in the course of his employment.
10. The expression 'accident' in Section 3 must be construed in its popular sense. It has been held by several decisions that it involves the meaning as an unlooked for mishap, an untoward event which is not expected or designed. In Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust 1954-I-LLJ-614, Chagla, C.J., speaking for a Division Bench, said thus (at p. 616, para 5):
If the workman died as a natural result of the disease from which he was suffering, then it could not be said that his death was caused out of his employment. If a workman is suffering from a particular disease and as a result of wear and tear in his employment, he dies of that disease, no liability would be fixed upon the employer. But, if the employment is a contributory cause, or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased.
In this case, the point that is seriously pressed by counsel for the appellant is that the deceased would have died even if he was not in the course of his employment and so the death did not arise during the course of employment. So, naturally, the question we have to consider is whether there was a casual connection between the death of the workman and his employment. When we inquire into the question whether there was a casual connection between the death of the workman and his employment, any contributory cause occasioned due to the strain and stress of the work is sufficient to hold that there was a casual connection between the death of the workman and his employment. Keeping in mind that normally in an appeal against the decision of the Commissioner for Workmen's Compensation we are bound by the findings of fact and the appeal lies only on substantial questions of law, we shall examine this question. Of course, the findings of the Commissioner must be based on evidence and if the finding is contrary to the evidence, then we are not precluded from examining the correctness of the decision holding that we are not bound by the findings of the Commissioner. In Executive Engineer v. Janaki (1978) KLT 897, a Division Bench of this Court held thus (headnote):
Compensation can be awarded only if the accident arose in the course of and out of the employment of the workman and those conditions refer to the time when the accident happened and the casual connection between the employment and the death. If the workman actually got ill in the course of and on account of the employment and he died as a result of it, then there is no scope for controversy at all. The employer is bound to give compensation. He is also bound to give compensation in cases where the workman had an illness already but the employment furnished a contributory cause to his death or if the employment caused aggravation of the illness and accelerated his death. If it was a natural result of a disease which the workman already had that he died and his employment did not furnish a contributory cause to his death or, if the employment had really nothing to do with the aggravation of his disease and acceleration of his death, then it cannot be said that there was a casual connection between his employment and subsequent death.
11. In (1933) AC 481, the House of Lords have considered the question where a dock labourer left his home soon after 5 AM apparently in good health and felt unwell soon after reaching the dock where he was employed. At 6 AM he commenced work and was engaged with others in loading and unloading bags of china clay and sugar. At 8.30 AM he had breakfast. He resumed work at 9 AM. The deceased man was intended to move one of the bags on the platform. He was sitting on another bag at the time. He raised his hook above his head in order to lay hold on the bag he wished to shift. Then he fell forward and died. The man suffered from heart disease, but the nature of the disease was uncertain. In proceedings under Section 1 of the Workmen's Compensation Act, 1925, by the widow and sole dependent of the deceased workman, the county court judge held that there was no sufficient evidence of an accident arising out of or in the course of the man's employment; for that, any slight muscular movement might have caused his death at any time, and that there was nothing fortuitous about it. The House of Lords held that on the evidence it could not be doubted that the work the deceased man was doing contributed to his death; that when that was proved it established that the death was due to an accident arising out of and in the course of his employment, unless the contrary was shown, and that, in applying as the test, the question whether the death was to be expected at any time, the county court judge had misdirected himself.
12. Lord Warrington, concurring with the judgment, put the proposition in a very simple style on two broad grounds. His Lord ship said 'All we have to determine, or all the learned county court judge had to determine, is whether the work in which the man was engaged this morning contributed to his death.' Further, it is said that 'In my opinion, that is not enough: he ought to have considered the whole of the events of that morning from the moment the man left home and went to his work and what happened during the continuance of that work.' In McFarlane v. Hutton Brothers (Stevedores) Ltd. (1926) 96 LJKB 357 : 20 BWCC 222 and Muscroft v. Stewarts and Lloyds Ltd. (1928) 140 LT 64 : 21 BWCC 274, the case was one in which the workman suffered from heart disease and he died while he was working as a stevedore, unloading from a ship. The county court judge held that the death was due to disease and that it had not been caused due to sudden strain with the work he was proceeding in the ordinary way and, therefore, there had been no accident such as entitled the dependant for compensation. It has to be noted significantly that what the county court judge emphasised was the fact that there was no sudden strain of the work that the workman was carrying out in the ordinary way. But the Court of Appeal of England held that the county court judge had misdirected himself and that to establish an accident, it was not necessary to find a sudden or special strain and an award should be made in favour of the dependant. Lord Hanworth, M.R., at page 227, enunciated the law as follows:.if there is an unexpected personal injury arising from some physiological condition set up in the course of the work, that may be described as an accident even although there is, at the moment, nothing unusual or particular which sets it up. That is the basis of the principle or authority which we have to apply.
13. In Partridge Jones and John Paton Ltd. v. James (No. 2) (1933) All ER 316, the House of Lords held:
An accident arises out of a workman's employment within the meaning of Section 1 of the Workmen's Compensation Act, 1925, when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman's health. In each case, the arbitrator adjudicating upon a claim for compensation must consider whether in substance, so far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing, it would probably have come all the same, or whether the employment contributed to it.
14. Learned Counsel for the appellant reminded us not to be led away by compassion since the claimants are a young widow and a minor child. In construing Section 3 of the Act, we feel that a court must approach every problem that comes before it with compassion and humanity but ultimately when it comes to a decision, it has got to decide according to law. We bear this principle in mind. Learned Counsel for the appellant relied on a decision in J.F. Pareira v. Eastern Watch Co. Ltd. 1985-I-LLJ-472 : (1984) ACJ. 699, where the headnote (ACJ) read thus:
deceased died in the course of employment but there was no casual connection between heart failure and employment; nor can it be said that providing urinals on the third floor rendered the place not a safe place for work.
The facts of this case did not consider particularly the question whether the nature of the work contributed the cause for the death of the worker. We do not think that we can rely on this decision on the facts disclosed in the case we are dealing with.
15. In Bai Diva Kaluji v. Silver Cotton Mills Ltd. 1956-I-LLJ-740, Chagla, C.J., awarded compensation to a workman who, after working for eight hours on a hot day in a mill, died of heart failure. Chagla, C.J., speaking for the Division Bench, observed thus (headnote):
There are occasions when the Court is compelled to draw inferences which naturally and inevitably arise 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.
16. In Kikubhai v. Mafatlal Fine Spg. and Mfg. Co. Ltd. (1981) Lab. IC 1648, a Division Bench of the Gujarat High Court held thus:
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. An 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 something internal which may be dangerous to 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 casual 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 AM onwards.
17. Of course, in this case, there may have been no clear evidence as to the fact whether the death occurred directly due to the strain and stress of the work the deceased was doing on the day previous to the fatal incident. But, considering the circumstances proved in the case, it is only natural and probable to infer that the workman was put to great strain and stress in discharging his duties. From the evidence discussed by the Commissioner, it is clear that the workman was asked to do work for more hours than what he was statutorily bound to do.
18. The Commissioner has observed on an analysis of the evidence that the shift duty of the deceased was spread over from 1PM on the first day to 1 PM on the next day with rest for only five hours, i.e., from 10.45 PM to 4 AM. The Commissioner further found that from the duty hours it is seen that the interval is so limited and he has to perform strenuous work from 1 PM to 10.45 PM and from 5 AM to 1 PM. The conclusion of the Commissioner is that the type of duty the deceased was obliged to perform would definitely contribute to great strain both mentally and physically and that definitely contributed to a probable cause for his cardiac arrest. The appellate power under Section 30 of the Act makes it clear that no appeal shall lie against an order of the Commissioner unless there is a substantial question of law involved in the appeal. We have gone through the evidence in the case and we do not feel that the Commissioner has gone wrong in applying the principles that have to be borne in mind in appreciating the evidence in a case like this. As observed by Chagla, C.J., in Bai Diva Kaluji v. Silver Cotton Mills Ltd. (supra), the Court is obliged to draw inferences which naturally and inevitably arise from the circumstances and on the evidence brought before the Court in the case. The mere paucity of precise evidence should not relieve the Court of its obligation to come to a conclusion on vital issues.
19. A Full Bench of the Assam High Court in Assam Rlys. and Trading Co. v. Saraswati Devi (AIR) 1963 Assam 127, observed thus (at pages 133 and 134):
Even in cases where a person has been suffering from heart disease, if the nature of the work has contributed to the deterioration of the heart and his death, the personal injury can be said to arise out of his employment. The case where the deceased was not suffering from any previous heart disease, is to my mind a stronger case and in such circumstances if he suddenly gets a heart attack while proceeding to perform his duty, the accident can be nothing but arising out of his employment.
20. We may also refer to the observations of V. R. Krishna Iyer, J., as he then was, in a case reported in N.L. Lalan v. VA. John 1972-II-LLJ-273. His Lordship observed thus at pp. 274-275:
A question of fact, however substantial, cannot be substantial question of law. So also a simple question of law cannot be called a substantial question of law. To be so, it must be of great public importance or be one which arises so frequently as to affect a large class of people or be basic to the operation of the Act itself. Where the question is covered already by precedents or the law on that aspect is well settled, the mere difficulty of applying the facts to that law cannot make it a substantial question of law.
21. In Nachhan v. New India Insurance Co. Ltd. (1985) ACJ 39 (All), the Court was considering a case where the deceased driver was not actually driving the vehicle at the time of his death and he was merely seated in the rear 1 seat along with the cleaner and he died of heart attack. It was contended that the deceased had died as a result of an accident in the course of his employment. The Madras High Court took the view that considering the circumstances, even if the death is due to heart failure it may only be said as a result from an accident. There is no difficulty in coming to the conclusion that the death in this case had occurred as a result of an accident. This view is supported by the weighty observations of Lord Lindley in Fenton v. J. Thorley and Co. Ltd. (1903) AC 43 (HL). Lord Lindley observed as follows (at page 453):
The word 'accident' is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known, the loss or hurt itself would certainly be called an accident. The word 'accident' is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish carelessness, from other unintended and unexpected events.
22. Taking the evidence adduced in the case and the circumstances involved in the case, we feel that it has been established in the case that there was a casual connection between the death of the deceased and the work done in the course of his employment. We are of the opinion that from the evidence it is possible to infer that the strain of the work contributed to the fatal accident. Though the workman died due to heart failure, we are certain that it is not necessary that the workman was actually working at the time of his death and that the death must occur while he was working or had just ceased to work. Further, we find that the evidence shows a great probability which satisfies in a reasonable manner that the strenuous work contributed to the fatal accident. This finding of the Commissioner is not unreasonable which requires interference by this Court.
23. We know certainly that it is always a difficult question to decide whether the death is due to a disease or some exertion of the workman in the course of his work.
24. In Oates v. Earl Fitzwilliam's Collieries Co. (1939) 2 All ER 498 (CA), Clauson J., observed thus (at page 502):
In our judgment, a physiological injury or change occurring in the course of a man's employment by reason of the work in which he is engaged at or about that moment is an injury by accident arising out of his employment, and this is so even though the injury or change be occasioned partly, or even mainly, by the progress or development of an existing disease if the work he is doing at or about the moment of the occurrence of the physiological injury or change contributes in any material degree to its occurrence. Moreover, this is none the less true though there may be no evidence of any strain or similar cause other than that arising out of the man's ordinary work.
25. Considering the overall circumstances proved in the case, we feel that there is no reason to disagree with the conclusions reached by the Commissioner for Workmen's Compensation. In the result, the claimant is entitled to the compensation awarded by the Workmen's Compensation Commissioner.
26. Learned Counsel for the appellant submitted before us that even though the policy issued by the appellant would cover payment of compensation to the workman employed--in this case the conductor in the bus, since the accident has not arisen while the bus was in use, the appellant is not liable to compensate the claimant. There is no dispute that when the vehicle was insured with the appellant for the year 1981 and as per the terms of the said policy, the appellant is liable to pay compensation for the accidents suffered by the driver, cleaner and conductor. The question whether the accident took place while the bus was in use was not seen specifically raised before the Commissioner. It is in evidence that the bus was halted at a particular place for the purpose of taking the next trip and we do not feel it proper and correct to hold on this technical ground, which has not been seriously pressed before the Commissioner, that the appellant is not liable to pay the compensation to the claimant.
27. The respondent contended that the appeal itself is incompetent since one of the claimants, the minor child of the deceased, has not been made a party to this appeal. We hold that this is a fatal defect and the appeal is liable to be dismissed on this ground also.
28. In the result, we see no merit in this appeal. The appeal is only to be dismissed. We do so. In the circumstances of the case, there will be no order as to costs.