R.D. Gattani, J.
1. This is an employer's appeal under Section 30 of the Workmen's Compensation Act (hereinafter referred to as 'the Act') and arises out of the following circumstances.
2. During the relevant period deceased Shri Srikishan was a Munim of the appellant firm Ram Lal Jawahirlal at Ujjain. In the month of May, 1960 he' was sent by his employers to realise the outstandings against various firms carrying on their business in District Kota. Deceased Shri Srikishan did his work on 20th and 21st May, 1960 at village Soyat. On 22-5-1960 he went to Peedawa. After doing his work there also he in the after-noon intended to return to Soyat and for that purpose inquired from the head constable Dhan Singh about the bus for Soyat. The latter pointed him that bus Shri Srikishan boarded that bus, but before it started for Soyat, Srikishan got perspiration and had two vomitings. His condition grew serious. The head constable on seeing that condition of Srikishan called for the doctor, but he was not available. Eventually the S.H.O. came there and Srikishan was sent to Sunel dispensary for treatment, but on the way he expired.
3. The respondents who are his dependants filed a claim for compensation before the Commissioner, Workmen's Compensation, Kota. That Commissioner has awarded a sum of Rs. 3,500 as compensation to be paid by the appellant. Hence this appeal.
4. Though the claim was contested by the appellant-firm before the Commissioner on various grounds, the only point that has been urged in this appeal is that there is nothing on the record to show that it was arising out of his employment that the death of Srikishan was caused. The law on the point no doubt is that not only the accident causing injury or death should take place in the course of the employment of the workman, but it must also arise out of the employment. The finding of the learned Commissioner in this respect is that Shri Srikishan had to encounter exposure by reason of his having to move from one place to another and due to this exposure the lungs of the deceased were affected and there was no timely medical attendance and the deceased was put to extra strain while he was taken in the bus to Sunel. In these circumstances, he held that the death of Srikishan was caused out of the course of the employment. This finding has been challenged in this appeal.
5. As regards the cause of the death of deceased Srikishan there is the statement of P.W. 1 Dr. Shyam Manohar Tiwari, then in charge Government dispensary, Sunel who had conducted the post-mortem of the corpse of the deceased. He has deposed that the death was caused due to pneumonia and proved his certificate Ex. P-1, which states that Srikishan died of asphiysia caused by lobor pneumonia on 22-5-1960. This certificate Ex.P-1, according to the witness, was prepared upon the basis of the post-mortem report. This means that the primary document in this connection was the post-mortem report. Unfortunately that has not been brought on record. In cross-examination this witness has deposed that pneumonia can be due to sudden exposure and sudden change in environment, specially climatic changes, and there might be many other reasons for pneumonia. When cross-examined further, the witness admitted that he could not give any specific reason which led the deceased to suffer from pneumonia. He has, however, nowhere deposed that the supposed extra strain while Srikishan was taken to Sunel from Peedawa could also be a cause of his death. Besides this statement there are two other statements reflecting upon the cause of the death of Srikishan. One is that of head constabale Dhan Singh and according to him the death was caused due to the jerks Srikishan received while he was taken to Sunel. The other witness is PW-4 Smt. Leela Bai, widow of ths deceased Srikishan, who has also given the cause of the death as the jerks received by the deceased in the bus. Apparently the latter two statements can be very easily ignored for arriving at the cause of the death of Srikishan.
6. Though the respondents did not produce the post-mortem report of the body of the deceased, which would have very satisfactorily proved the cause of the death, for the time it will be assumed that the death of Srikishan occurred due to pneumonia. So the question is whether in the circumstances of the case it can be said that suffering from pneumonia arose out of the employment of Srikishan. The relevant provisions of Section 3 of the Act read as follows:
3. 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 so 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.
(4) Save as provided by Sub-sections (2), (2-A) and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.
(As the Sub-sections (2), (2-A) and (3) are not applicable to the facts of the case, they are not given here).
7. The word 'accident' has not been defined in the Act, but we may take that any unexpected event happening without design and causing injury to or death to any person may be taken as an accident. But when we talk whether that accident arose out of the employment of the workman, we must bear in mind that accident must have some causal relation to the employment and must be due to the risk incidental to the nature of employment. To put in other words it is to be seen whether Srikishan died due to pneumonia alone or from pneumonia and employment together, i.e., whether it can be said that there was some sort of connection between the employment and the cause of death.
8. It might be stated here that the accident took place in the month of May, 1960, i.e., in summer season. Srikishan came from Ujjain to Kota District. It cannot be said that there is vast climatic difference between Ujjain and Kota District, at least nothing has been brought on record in that connection. In these circumstances can it be said that when Srikishan came from Ujjain to Kota District and went to one or two villages, he had as a part of his employment to do any particular thing which resulted in his suffering from pneumonia or whether in coming from Ujjain to Kota District Srikishan could be said to have put himself to some risk which ultimately caused his death a risk which any other person in the similar circumstances must have let to face.
9. The learned Counsel for the respondents in this connection relied upon the following authorities:
(1) The Indian News Chronicle Ltd. v. Mrs. Luis Lazarus A.I.R. 1951 Punj. 102,
(2) Mrs. Santan Fernandas v. B P. (India) Ltd. : (1956)IILLJ21Bom , and
(3) R.B. Moondra and Co. v. Mst. Bhanwari and Anr. .
10. I have gone through those rulings carefully and am of opinion that neither of these isof any help to the respondents. It might be stated here that a case of the present type has to be decidedupon its own peculiar facts. In Indian News Chronicle Ltd. v. Mrs. Luis Lazarus A.I.R. 1951 Punj. 102, one L was employed as an electrician in the press of the Indian News Chronicle, and in the course of his duties he had frequently to go into a heating room and from there to a cooling plant where the temperature was kept considerably low. On 21-6-1948, at about 11.00 P.M he went into the cooling room and on the same night at 2.00 A.M. he suddenly fell ill and was sent home. It was there noticed by his wife that he was very cold. At about 3.30 A.M. a doctor was called who diagnosed the disease to be pneumonia. He died on 27-5-1948. In these circumstances it was held that the injury to L was caused out of and in the course of his employment. It is clear from the facts of this case that as a part of his duty L had frequently to go from heating room to a cooling plant and vice versa. If, therefore, he got pneumonia, it was rightly held that it arose out of his employment. Frequently going from a heating room to the cooling plant and vice versa itself suggests that a risk to the health of L was involved and, therefore, pneumonia from which L was attacked resulted out of the nature of his employment.
11. The case reported in Mrs. Santan Fernandas v. B.P. (India), Ltd. : (1956)IILLJ21Bom , is also, in my opinion, of no avail to the respondents because it was observed in that case as follows:
The risk which the scullion had to encounter in the course of his employment, viz., the risk of exposure to a sudden variation in temperature from a low temperature to a high temperature by reason of his having to move from a low temperature area to a high temperature area, could be appropriately termed 'a locality risk', and the fact that the risk itself might to a certain extent have arisen from the operation of a natural force, viz., the atmospheric temperature of 101 degrees on that date, would be immaterial. It would also be unnecessary to prove special exposure to such risk.
12. In that case the deceased had off and to visit the ice room, the kitchen and the pantry for taking the cold stuff from the cold storage to the kitchen or the pantry and the hot things from the kitchen to the pantry. At the conclusion of the meal, he had again to alternate his visits between the kitchen and the cold room for keeping in the cold storage the food which had been left over and had to be preserved for a subsequent meal. This was, therefore, held 'a locality risk' attached to the nature of the employment. Obviously there was no such 'a locality risk' in the present case.
13. The facts of the case reported in R.B. Moondra and Co. v. Mst. Bhanwari and Anr. , were also totally different. In that case the deceased was employed as a driver of the appellant's truck used for the purpose of carrying petrol in a tank. On the previous day he had reported to the appellant that the tank was leaking and so water was put in it for detecting the place from where it leaked. The deceased was asked by the appellant to enter the tank to see from where it leaker1. Accordingly the deceased entered the tank which had nopenal in it, but had been partly filled with water, and for the purpose of detecting the place from where it leaked, he lighted a match stick, as a result of which it caught fire and the deceased received burns due to which he died. It was in these circumstances that This Court held that the accident arose out of the deceased's employment and the act of lighting the match stick, even if it be held as a rash or negligent act, would not debar his widow from claiming compensation.
14. A case very near to the facts of the present case can be found in Smt. Mariambai v. Mackinnon Mackenzie and Co. Pvt. Ltd. 1967-I L.L.J. 610 : A.I.R. 1968 Bom. 167. It was held in that case that a workman is not entitled to compensation merely by reason of the fact that he is exposed to the severity of the weather conditions in the absence of anything to show that any condition or obligation or incidence of the employment brought him within the zone of special danger. In that case a person living in a temperate climate was recruited as a Deck Bhandari and was transported all of a sudden into conditions of high temperature or hot climate and he died there by heat exhaustion before even joining his duties. He was held not entitled to compensation because according to that authority although the heat exhaustion which led ultimately to the death of the workman was an injury by accident which occurred in the course of employment, it did not arise out of the employment.
15. In the present case also the deceased might have died of pneumonia but it cannot be said that there was any causal relation between the nature of his employment and contracting the pneumonia by him.
16. The result, therefore, is that this appeal succeeds and it is hereby accepted. The award given by the Commissioner, Workmen's Compensation, Kota dated 27-3-1968 is hereby set aside. However, the parties shall bear their own costs.