Mariambai Vs. Mackinnon Mackenizie and Co. Pvt. Ltd. - Court Judgment

(1) This appeal arises out of an application for compensation made by the widow of the deceased under the Workmen's Compensation Act. The widow had claimed an amount of Rs. 4,000 as compensation on the basis that the salary of her deceased husband was within the range of Rs. 200 to 300. The facts on which there is no longer any dispute lie within a narrow compass and may be set out as follows : The deceased, Adam Fakir, was recruited as a Deck Bhandari on 19th July 1962 at Bombay to serve on the ship S. S. Baluchistan by the opposite Party - Respondents. Adam Fakir along with other crew, which is called as Asian Crew, was taken in a streamer called 'Daressa', which reached Khorramshahr port on 29th July 1962. The Asian crew commenced boarding the ship S. S. Baluchistan at about 3-30 p.m. at Abadan. At 5.35 p.m. the Chief Officer was informed that Adam Fakir the Deck Bhandari, had collapsed in the after accommodation. Adam Fakir was then removed to amidships accommodation. Ambulance was called as Adam Fakir appeared to be in deep coma. It was ascertained that the collapsed man's pulse was extremely high and weak and that his temperature was 104o. Orders were given by the Master that the patient be treated for that heat exhaustion as prescribed by the Ship Captains Medical Guide. At 5-45 p.m. the ambulance arrived and Adam Fakir was removed to Abadan Hospital. Shortly after his arrival he breathed his last, and information was conveyed to the Chief Officer accordingly. The doctor issued a certificate to the effect that Adam Kakir died but to heat exhaustion on 29th July 1962. The widow, who was unaware of the circumstances in which her husband had met with the death, only alleged that her husband on 29th July 1962 on the ship du to personal injury by accident arising out of and in the course of his employment with the opposite parte. The facts above the illness to which ultimately Adam Fakir succumbed are extracted from the official Log Book, which was produced on behalf of the Opposite Party.

(2) The opposite party contended that heat exhaustion is a natural causes and is not due to any injury arising out of employment. They relied upon the facts as stated in the Log Book.

(3) Appropriate issues were framed and the Commissioner for Workmen's Compensation held that heat exhaustion which led ultimately to the death of Adam Fakir was an injury by accident which occurred in the course of employment. At the same time, he held that it did not arise out of employment. Consequently, he dismissed the application. That is why the applicant has now come up in appeal.

(4) Mr. Jayakar, for the appellant, contended that Adam Fakir was recruited in Bombay and was taken to Abadan while in the employment of the opposite party. He pointed out that Adam Fakir was taken to Abadan for the purpose of joining his duties as a Deck Bhandari on s.s. Baluchistan. Adam Fakir was taken to a place of extreme heat and was subjected to terrific exposure particularly by reason of the fact that he was picked up from a comparatively cool place and suddenly placed in a locality of high temperature. He, therefore, contended that the finding of the Commissioner that the injury did not arise out of employment is not correct. In support of his argument he relied upon several authorities to which reference would be made hereafter. It may, however, be mentioned that in the course of his reply he made out some new points. He pointed out that post-mortem examination was not held over the dead body of the deceased. According to him, it is the normal practice that when a person dies a sudden death, post mortem examination is held. He suggested that the post mortem examination would have revealed whether the deceased was susceptible to extreme heat or variations in temperature. He also pointed out that the opposite party had led no evidence as to the circumstances in which the deceased was taken to Abadan in which the deceased was taken to Abadan and also the time when the steamer reached Khorramshahr as also the time when he was being transhipped from the steamer reached Khorramshahr as also the time when he was being transhipped from the steamer to s.s. Baluchistan. He conceded that this point was not made out before the Commissioner nor did it strike him at the time when he opened his arguments. He, therefore, sought the permission of the Court to make out the new point. In my view, no useful purpose would be served by allowing Mr. Jayakar to raise the new point for the simple reason that there is no evidence to show that a post mortem examination had been held. If it had not been held then the absence of it cannot now be helped. We do not know whether post mortem is necessary under the local laws, rules or regulations prevailing at Abadan. We have a certificate on record issued by the official doctor of the Medical Department expressing opinion about the cause of death of the deceased. The certificate says that Adam Fakir died due to heat exhaustion on 29th July 1962. Merely because post mortem examination was not held, it is not possible to raise any adverse inference against the opposite party, firstly because, the point was never raised till the last moment, secondly because, we do not know the position of the rules prevailing at Abadan. It may as well be that post mortem was not considered necessary as no suspicion attached to the circumstances of death in view of the medical certificate. As regards the complaint that no evidence has been led. Relevant documents, however, have been produced in this case and both parties have relied upon those documents. I have already referred to the extract of the official Log Book and the medical certificate. There is a third document viz., report of the Master of the Ship on a printed form. The report refers to the date of engagement of Adam Fakir as 19th July 1962. Regarding the particulars of the medical treatment the report says that the deceased was treated for heat exhaustion. It further says that the Seaman (Adam Fakir) did not complain of any prior illness. Then the details regarding the nature of the work, hours of duty, rest etc. have been stated as follows:

' This man (Adam Fakir) had not commenced work, having just joined the vessel. At the time of collapse he was engaged in unpacking his effects.'

Again at the end, in answer to the last query it is stated:

'Had not commenced any duties on board the vessel.'

The trial proceeded on the basis of the facts as set out in these three documents. No Challenge was made regarding any of the facts stated in these documents. It is true that the appellant had no means of knowing whether any of these facts were true or not. At the same time, in considering the argument which has been raised for the first time in the course of reply of Mr. Jaykar, we have to take into account the basis on which the trial proceeded. In deciding the issues of law arising in this case, therefore, we must proceed on the footing of the facts as they have been disclosed by the documents placed on record by the opposite party.

(5) On behalf of the applicant, reliance is placed on the evidence of Dr. Fakruddin Tyaballi Variava. Dr. Variava claims to be a specialist in heat exhaustion. He has stated:

'Heat exhaustion is due to exposure of a man to hot environments. It is likely to result in a person's death. Heat exhaustion is a physical agent. It is the result of an external factor, the heat in human mechanism. If one does not expose himself to heat environments he does not suffer from heat environments he does not suffer from heat exhaustion. The condition of heat exhaustion may occur within a few minutes to a few hours depending on the persons being acclimatised or not. If a man living in cold climate goes to a place of high temperature, he is prone to get heat exhaustion. Exertion is not necessary for heat exhaustion. It may occur in a warm place. It depends upon environments and not on exertion.' In answer to questions in cross-examination, Dr. Variava asserted that heat stroke is different from heat exhaustion. He stated: 'In heat stroke there is no sweating as the sweating mechanism collapses and the temperature of body goes up. In heat exhaustion there is profuse perspiration and the patient collapses. . . . . . . . . . If a man accustomed to 95O is exposed to hot environment of 105o / 106o F. he is prone to heat exhaustion or stroke. In heat stroke the temperature is above 1050.'

It is clear from the evidence of Dr. Variava that heat exhaustion is due merely to exposure to high temperature and exertion plays no part in bringing about the condition of heat exhaustion. In other words, heat exhaustion is an environmental disease and not a disease due to any special exertion. It was not suggested to Dr. Variava, on behalf of the applicant, that heat exhaustion depends upon the individual's acclimatisation and susceptibilities. According to Dr. Variava, the mere fact that a person is transported from a cool place of 95o F. temperature to a comparatively hot place of 105o / 106o F. temperature, may make him susceptible to heat exhaustion. It is in the background of these facts that we have to consider the various questions of law that have been raised in the course of the arguments before me.

(6) Before discussing the various authorities that were cited at the bar, it would be better to refer to the relevant provisions of the Workmen's Compensation Act (hereinafter referred to as the Act). Section 3 of the Act relates to the employer's liability for compensation. Sub-section (1) of S. 3 lays down the conditions in which this liability arises. In substance it provides :

'(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'.

Analysing the sub-section we notice that four conditions must be satisfied before liability could be fixed upon the employer:

(1) personal injury;

(2) caused by accident;

(3) arising out of, and

(4) in the course of his employment.

Personal injury spoken of in section 3(1) of the Act may lead to death or may lead to disablement or impairment of the powers of the body or mind in either of which event the employer is liable to pay compensation if the conditions laid down in sub-section (1) of section 3 of the Act are satisfied, the essential condition being that the injury must be caused by an accident, Sub-section (2) deals with what are known as occupational diseases peculiar to the employment. Schedule III, parts A and B to the Act list these occupational diseases. The operative part of sub-section (2) says that the contracting of the disease shall be deemed to be an injury by accident within the meaning of section 3 of the Act. the expression 'shall be deemed to be an injury by accident' clearly suggests that in itself the contracting of a disease known as occupational disease is not an injury by accident. By fiction of law it is assimilated to an injury by accident. Parts A, B and C of Schedule III contain lists of occupational diseases. Sub-section (3) empowers the State Government or the Central Government, as the case may be, to add to the lists of A, B and C of Schedule III. Sub-section (4) runs thus;

'Save as provided by sub-sections (2), (2A) 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'.

Sub-section (4) makes a distinction between the diseases which are mentioned in sub-section (2), (2A) and (3) i.e . occupational diseases and other diseases. Compensation is provided for in sub-sections (2), (2A) and (3) in respect of occupational diseases by postulating a fiction viz., that the contracting of such diseases shall be deemed to be an injury by accident. Sub-section (4) relates to diseases other than occupational diseases and it provides that a workman would not be entitled to claim compensation in respect of the diseases other than occupational diseases unless the disease has arisen out of and in the course of his employment. In other words, some nexus must be established between the disease and a specific injury by accident.

(7) So far as diseases which are contracted by virus or bacillus are concerned there is no difficulty in establishing the nexus between the disease and the accident. A classical illustration is provided by the case in Brintons Ltd. v. Turvey, 1905 A.C. 230 decided by the House of Lords. In that case a workman was employed in sorting wool in a factory. A bacillus (according to the medical evidence or theory) passed from the wool to the eye of the workman and infected him with anthrax of which he died. It was held by the Earl of Halsbury L.C. and Lords Macnaghten and Lindley, Lord Robertson dissenting, that this was a case of 'injury by accident' within the meaning of the Workmen's Compensation Act, 1897. Ordinarily, injury by accident has reference to a physiological injury. When, however, a disease is contracted as a result of the passage of virus, it sets up physiological conditions which can be described in medical language as a disease. It is, however, obvious that the disease is the consequential result of the injury viz., the travelling of the bacillus from the wool to the eye of the workman. It is clear that the disease was caused by reason of the work in which he was employed. The Earl of Halsbury made a distinction between a idiopathic disease and a disease which is caused by affection or contraction as a result of an outside agency. The Earl of Halsbury observed at page 233:

'. . . . . . . . but when some affection of our physical frame is in any way induced by an accident, we must be on our guard that we are not misled by medical phrases to alter the proper application of the phrase 'accident causing injury', because the injury inflicted by accident sets up a condition of things which medical men describe as diseases'.

The Lord Chancellor also observed:

'. . . . . . . . .It does not appear to me that by calling the consequences of an accidental injury a disease one alters the nature or the consequential results of the injury that has been inflicted'.

The Lord Chancellor then went on to give illustrations as follows : (Page 234).

'A Workman in the course of his employment spills some corrosive acid on his hands; the injury caused thereby sets up erysipelas a definite diseases; some trifling injury by a needle sets up tetanus. Are these not within the Act because the immediate injury is not perceptible until it shows itself in some morbid change in the structure of the human body, and which when shown we call a diseases? I cannot thing so.'

Some more illustrations are provided by diseases such as, typhoid and pneumonia, which are brought about by virus i.e , the germs may travel from implements or materials on which a workman is operating.

(8) On the other hand, the onset of the illness may be gradual and steady. The genesis of the illness may not be definitely traceable. It is in respect of such diseases that the theory of occupational disease has been introduced. If the disease is peculiar to the employment in which the workman is engaged, whatever the genesis of the disease, the workman would be deemed to have suffered to injury by accident and he or his heirs would be entitled to claim compensation. In Williams v. Guest, Keen and Nettlefolds Ltd. (1926) 1 K. B. 497 the facts were :

A miner, who had been employed in boring rock top for a period of ten years, and who towards the end of that period had only been able to work at intervals of a few months owing to shortness of breathing which finally resulted in total incapacity, was found to have fibrosis of lungs due to his having breathed in particles of silica dust which came from the boring operations, and which is process of time had settled in his lungs, eventually producing silicosis.

It was admitted that as silicosis was not a schedule disease for miners, the applicant could only recover on the ground that he was suffering from an injury by accident within Section 1 of the Act of 1906.

The Country Court Judge came to the conclusion that the applicant was suffering from silicosts resulting from the boring operations, but that as his condition was brought on gradually it was not due to an accident, and that he was not entitled to compensation.

It was held;

'The gradual inhalation of particles of silica throughout a long period did not amount in any ordinary sense to an accident, or a serious of accidents; that the case was analogous to a case of lead poisoning and that the applicant was not entitled to compensation'.

Since the disease was not classified as a scheduled disease, the question about the manner of the disease being caused and developed assumed considerable significance. At page 502 Pollock M. R. in describing an accident stated that it is something which must be brought about by some external cause. The learned Judge then referred to the speech of Lord Buckmaster in Innes or Grant v. Kynoch, (1919) A. C. 765 and pointed out that the review of the cases made by Lord Buckmaster disclosed: (p. 503) -

'. . . . . . . . . . . . . . . . . it is fair to say that the cases where the workman was failed are cases in which the causation between the possibility of infection or accident and the ultimate result complained of has been long, has been gradual, and is open to some question'.

Atkin L. J. referred to the speech of Lord Birkenhead in (1919) A. C. 765 wherein Lord Birkenhead stated:

(p. 505)- 'In (1905) A. C. 230 it was held by this House, Lord Robertson dissenting, that the assault of a bacillus upon a workman proceeding from the wool upon which he was working and affecting him with mortal anthrax, was an accident, and that the consequent and fatal disease was an injury. In that case, therefore, the essentials of the composite phrase 'injury by accident' were satisfied. This decision may easily prove with the development of scientific discovery to be one of far-reaching importance when Brintons' case was decided the area conceded by contemporary science to idiopathic disease was much larger than is the case today. It follows that the area of disease which is now traced to infection by bacillus has correspondingly grown. The result is that the decision in Brintons' case is likely to increase in range.'

In Martin v. Manchester Corporation, reported in (1912) 5 BW CC 259 the facts were as follows:

The workman was a porter in a fever hospital, and pat of his duties was to clean out the mortuary and attend in the scarlet fever wards. In February, 1910, he had an attack of influenza, necessitating his ceasing work. He returned to work on March 22. He cleaned out the mortuary on April 1, and after he had been at work about an hour he felt sick and dizzy; this increased, and he developed scarlet favour which totally incapacitated him for several weeks. The Country Court Judge found that he contracted scarlet fever on April 1 and that this was an accident arising out of and in the course of the man's employment.

It was held that there was no evidence to support the finding Lord Justice Buckley observed: (p. 262)-

'The contraction of the disease is an injury. That injury may or may not be by accident. In order that the man may succeeded it is necessary he should show that the disease was contracted by accident. It is for the workman to establish the accident. The workman must show how, when, where to the satisfaction of the tribunal, the circumstances took place which constitute an accident. The most that can be said here is that this man was employed in a scarlet fever hospital, and it may be more probable that he contracted the complaint in the place where there were scarlet fever patients than in the street or his aunt's house. But that will not do. You must not say. 'it is very likely that I did contract it here;' you must show that you did contract it there'

According to Lord Buckley it must be shown that the injury-the disease- is a personal injury, and has been incurred by accident. In these types of diseases the question that falls for consideration is, whether the disease was caused by organic causes or by internal processes or was the result of some external agency. It is to cover these classes of cases that sub-section (4) in section 3 of the Act has been provided for, Sub-section (4) is not confined to cases where the disease is directly traceable to a specific injury, such as the passage of a specific injury, such as the passage of a bacillus or virus. The contraction of the disease may not be known or may not be amenable to medical diagnosis. If it is then the position is clear as in Brintons' case. 1905 AC 230, Even when it is not, if it is established that it is attributable to a specific injury by accident, then that is a case of injury by accident arising out of and in the curse of the employment. In other words, if it is shown that the work in which the workman is employed has in some way contributed to or has accelerated the process of disablement or death, then the case would certainly fall within the purview of sub-section (4) of section 3 of the Act.

(9) Mr. Jayakar contended that this is not a case of death by disease and, therefore, sub-section (4) of section 3 of the Act need not be considered at all. According to him, this is a case of injury by accident. As pointed out above it is not possible to say on the medical evidence led in this case that there was any physiological injury caused by an accident. The medical certificate shows that death was due to heat exhaustion. Dr. Variava says that heat exhaustion is due to exposure of a man to hot environments. Heat exhaustion, according to him, is the result of an external factor viz., the heat in human mechanism. This evidence does not take the case of death by heat exhaustion out of the category of death by disease. I must, therefore, hold that the case squarely falls within sub-section (4) of section 3 of the Act and will have to be considered on that footing.

(10) The main argument advanced by Mr. Jayakar was, here is a man, who was recruited in Bombay, living in a temperature climate. All of a sudden he was transported into conditions of high temperature or hot climate. He has, therefore, been the victim of extremities in climate. He was required to join his duties at Abadan where climatic conditions are very severe, surcharged with extreme heat. He, therefore, argued that the nature of employment as a seaman exposed him to that special or particular danger. That being the case, the disease viz., heat exhaustion, is directly attributable to the injury by accident.

(11) On the other hand, Mr. Metha, for the respondent, contended that it is not enough to show that the workman contracted a disease merely on account of severity of the climate. It must further be established that there was something in the nature or conditions of employment which exposed the workman to a special danger as a result of which he contracted that particular disease.

(12) In order to appreciate the rival arguments, it is necessary to refer to some of the cases which were cited at the bar. The most important case on this point is that of Warner v. Couchman. (1911) 1. K. B. 351. In that case a journeyman baker, whose right hand and arm had been injured by frostbite while out on his rounds with his employer's cart on a cold day, claimed compensation for this injury as 'an accident arising out of' his employment. It was held (Fletcher-Moulton L.J. dissenting):

'That even assuming that there had been an 'accident', there was no peculiar danger to which the applicant had been exposed beyond that which other drivers of vehicles or persons engaged in out-door work on that day had experienced, and consequently that the accident had not arisen, 'out of the employment' '.

Cozens-Hardy, Master of the Rolls, who delivered the judgment of the majority refereed to his own earlier decision in Craske v. Wigan (1909) 2 K. B. 635 and quoted his own words to the following effect:

' A cock-chafer frightened a lady's maid sitting at an open window with the result that her eye was injured (by the needle in her hand pricking the eye), ' it is not enough for the applicant to say 'the accident would not have happened if I had not been engaged in that employment or if I had not been in that particular place' He must go further and say ' the accident arose because of something I was doing in the course of my employment or because I was exposed by the nature of my employment to some peculiar danger'.

Referring to the facts of the case the Court was considering, the Master of the Rolls stated that he was unable to see that there way any peculiar danger to which the applicant was exposed, beyond that to which that large section of population who are drivers of vehicles, or who are otherwise engaged as out-of-door labourers, are exposed. The Master of the Rolls then proceeded to explain the decision in Andrew v. Faitsworth Industrial Society Ltd., (1904) 2 K. B. 32 which, according to him, has been misunderstood. It that case, the man who was working on a scaffold at a considerable height, was exposed to more than the normal risk of being struck by lightning. It was held by the Master of the Rolls. Lord Collins in that case: (p. 354) :

'If there is under particular circumstances in a particular vocation something appreciably and substantially beyond the ordinary normal risk, which ordinary people run, and which is a necessary concomitant of the occupation the man is engaged in, then I am entitled to say that the extra danger to which the man is exposed is something arising out of his employment'

Cozens-Hardy M R then referred to the decision in Kelly v. Kerry Country Council, (1908) 42 ILT 23 where a workman employed in a road was killed by lightning and it was held that he was not entitled to compensation on the ground that the accident did not arise out of his employment. He explained the difference between the two cases by pointing out that whereas in the former case, the workman was exposed to the special danger by reason of the nature of the work he was doing, in the second case, the nature of the employment did not expose him to any kind of extra or special danger Lord Justice Fletcher Moulton in his differing judgment conceded: (p. 357)-

'It is true that when we deal with the effect of natural causes affecting a considerable area, such as severe weather, we are entitled and bound to consider whether the accident arose out of the employment or was merely a consequence of the severity of the weather to which persons in the locality, and whether so employed or not were equally liable. If it is the latter it does not arise 'out of the employment' because the man is not specially affected by the severity of the weather by reason of his employment'

It is precisely this distinction which was emphasised by Fletcher-Mouton L. J with which we are concerned in the present case. What has been established in the present case is that the workman suffered from heat exhaustion by reason of the fact that he was exposed to severe whether in the process of joining his duties. It is not suggested that there was something peculiar in the nature of the employment which exposed him to particular or special danger. The decision of the majority in the aforesaid case was upheld by the House of Lords in Warne v. Couchman 1912 A. C. 35. The Lord Chancellor in his speech pointed out that Fletcher-Mouton L. J. who was the Judge in the minority in the Court of Appeal, stated the law fairly enough, or rather stated what was the point of view with which a Judge ought to approach cases of this kind. The Lord Chancellor then cited the passage referred to above, and observed : (p.37)-

'In substance, the learned Country Court Judge seems to me to have found that in this case the man was not specially affected by the severity of the weather by reason of his employment'.

Lord Shaw of Dunfermline referring to the findings of the Country Court Judge observed : (p. 38 P)-

'First negatively, he has found that this unfortunate workman was not injured by accident arising out of his employment. Secondly, positively, he has found that being set to ordinary outdoor work he was injured by the severity of the weather'. It may be mentioned that the learned Commissioner in the present case has based his view mainly on the decision of the House of Lords in 1912 A. C. 35.

(13) In Davies v. Gillespie, (1912) 105 LT 494 the facts of the case were:

The applicant was the first officer on board on the employers' steamships, and on the 31st May 1910, while the vessel was in harbour at a port in the West Indies, he was engaged in superintending the loading of cargo.

For that purpose he was posted on a part of the black steel deck of the vessel exposed to the fierce rays of the sun, as that part of the deck was unsheltered by any awning, from 6 a.m. till 11 a.m. with an interval of half an hour for breakfast.

He was compelled to lean over a hatchway during the whole of the period of the loading in order to perform his duty.

At 11 a.m. he had an attack of sunstroke which caused atrophy of the optic nerves. This resulted in his being incapacitated for work, inasmuch as one of his eyes was totally blinded, and his other eye only retained a fourth part of the normal vision.

The County Court Judge decided that the applicant was exposed to a abnormal risk and that therefore the accident arose out of and in the course of his employment. One of the arguments advanced against the judgment was that the danger of sunstroke in the West Indies was one to which every European there was exposed. This argument was negatived by Cozens-Hardy Master of the Rolls. After referring to the decision of the House of Lords in 1912 A. C. 35, the Master of the Rolls stated : (p. 495) -

'In my opinion, this Court ought to be very careful to refrain from saying anything which might be taken to mean that any one who by reason of his occupations is exposed to the roughness of the weather is entitled to compensation for the injury thus incurred'.

On the facts of the case the Master of the Rolls found that the applicant had been exposed to abnormal risk. In that context, he pointed out: (p. 495)-

'. . . . . . . .In order properly to perform his duties the applicant had to stand on a black steel deck for a long period in the hot sun, leaning over a hatchway, and the medical referee informed the County Court Judge that he attached importance to the fact that the exposure was prolonged, for the risk of sunstroke had been increased by that prolonged exposure'.

The caution, however, given by the Master of the Rolls is important in the context of the facts of the case, which I am now considering. It was to the effect that it should not be supposed that anyone who by reason of his occupation is exposed to the roughness of the weather is entitled to compensation for the injury thus incurred.

(14) The last of the series of decision to which reference was made on this point is Lawrence v. George Matthews, (1929) 1 K. B. 1. In that case the facts were:

The deceased workman was employed as a commercial traveller by the appellants, who were coal merchanges, under an agreement under which he was to devote the whole of his time to the business of the appellants, and was to be paid a commission on all orders obtained by him for them, and was to pay his own travelling expenses. The appellants did not prescribe his journeys or the means by which he was t make them, but to their knowledge he travelled by a motor cycle and side car. Whilst so travelling on his way home he was struck on the road by a falling tree which was blown by a severe gale which then prevailed in the district and was fatally injured. In arbitration proceedings by his widow, as Defendant, for compensation for his death, the Country Court Judge held that the accident arose out of the employment and made an award in her favour. On appeal by the appellants;

Held (by Sankey and Russell L. JJ.; Lord Hanworth M. R. dissenting), that the accident arose out of the employment on the ground that the deceased's employment brought him to a spot which, owing to the existence of the tree, had a quality that resulted in a danger. The fact that the fall of the tree was caused by forces of nature was immaterial, as regard could only be had to the immediate cause of the accident, viz., the falling of the tree.

The judgment of the Lord Justice Sankey is particularly instructive because the Lord Justice has referred to the two lines of arguments in a case of accident of this nature. He formulated the questions on page 12 as follows :

'(1) Did the accident arise in the course of the deceased's employment? And (2) Did it arise out of his employment?'

The Lord Justice then proceeded to observe:

'There have been a very large number of cases decided on these two points, some of which are very difficult to reconcile with others, a situation which was bound to arise, when it became necessary for the Courts to apply a few words, 'accident arising out of and in the course of' to a great variety of employment's and circumstances. Quite early in the case law on the subject two lines of authority began to emerge, amongst many others, the first being where the personal injury to the workman was caused by an accident resulting from the forces of nature; the second being where the personal injury arose from the ordinary risks incurred by the workman when in a street or public place. With regard to the first of these cases namely, accidents arising from the forces of nature, the rule appears to have been established that to enable the workman or his dependants to succeed it was necessary to prove that the position he was in the course of his employment subjected him to more than an ordinary risk of being injured.'

In this context, he referred to the decision in (1904) 2 K. B. 32, where the man was struck by lightning while working in a place where he was subject to more than an ordinary risk of being struck. He also referred to the case of (1908) 1 B. W. C . C. 194 where the workman was working on a steeplejack at the tope of a steeple and was struck by lightning Lord Justice Sankey then referred to the other cases such as of ordinary risk which is shared by all men. he then pointed out that in such a case, it is not necessary to establish extra or special risks. It is sufficient to show that the risk was necessarily incidental to the performance of the servant's work. He then explained the reason on which the decision are based. The Lord Justice then referred to the decisions in Thom (or Simpson) v. Sinclair, 1917 A. C. 127 and Dennis v. A. J. While and Co., 1917 A. C. 479 and pointed out : (p. 14)-

'With regard to the forces of nature cases, Lord Haldane seems to draw a distinction between the accident which arises directly, say, for the sake of example, from a stroke of lightning, or indirectly in this sense that the stroke of lightning brings about a collapse of a wall which falls upon and so causes the personal injury to the workman. He says (in Thom or Simpson's case)

'Whether the remoter cause of the roof falling was the collapse of a neighbouring wall, or the falling down of some high adjacent building, or a stroke of lightning seems to me immaterial in the light of this construction. It is enough that, by the term of her employment, the appellant had to work in this particular shed and was in consequence injured by an accident which happened to the roof of the shed. The accident is one arising out of the employment not the less if ultimately caused by the fail of someone else's wall than if it had been caused by inherent weakness of the employer's roof.' '

Lord Justice Sanky explained the decision of the House of Lords in Sinclair's case, 1917 AC 127 (Thom or Simpson's) at p. 16 as follows:

'Where death or personal injury results directly from the operation of natural forces, for example, lightning, the dependants of a workman must show that the workman was specially exposed to such forces. Where the death or personal injury does not directly result from natural forces, but from a cause which is induced by some natural force, for example, where lightning knows down a wall or a storm blows down a tree, and the wall or the tree, as the case may be, causes personal injury at any place to the workman, he is entitled to recover if he was at the time he suffered the injury at the place during the course of his employment.'

(15) It would thus appear that a distinction has been made between a case where the accident has occurred by the operation of the forces of nature by themselves and a case where the accident has taken place by the intervention of some event which has been affected by the operation of natural forces. In the first category of cases, what must be established is that the workman has been exposed either to a special or peculiar risk or risk which is incidental and which arises out of the nature, terms and conditions of his employment. In the latter category, all that is necessary to be proved on the part of the workman is that he was at the particular spot because of he employment. In other words, his employment required him to be at that spot. While he was taken to that spot in the performance of his duties, natural forces operated upon some agency such as, scaffolding, falling or a wall crashing or a building collapsing, it is not necessary for the workman to prove that he was exposed to any special danger or special risk by reason of his employment. The distinction seems to have been based on the forces of nature being the immediate cause or cause causans or the forces being the remote cause. Lord Shaw called the letter type of cases as location cases.

(16) The principles enunciated in English cases have been applied in India. Mr. Jayakar referred to the decision of this Court in Mrs. Santan Fernandas v. B. P. (India) Ltd., Bombay, : (1956)IILLJ21Bom . In that case the nature of the employment as a scullion required the employee to move suddenly from the low temperature of a cold storage room to the atmospheric temperature of 101 and even higher temperature of a kitchen. While doing his duty the employee suffered from a heat stroke and died. It was held that on these facts legal inference could be drawn that the accident arise out of his employment and was 'not due to general weather conditions to which not only the employee but all others in the same place were subject. The learned Judges referred to the decisions in 1917 AC 127 and approved of the view enunciated therein. At page 152 the passage in Lord Shaw's judgment in that case was cited with approval to the following effect:

'. . . . . . . . .my view of the statute is that the expression 'arising out of the employment' is not confided to the mere 'nature of the employment'. The expression, in my opinion, applies to the employment as such to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply. If the peril which he encountered was not added peril produced by the workman himself, as in the case of Plumb v. Cobden Flour Mills Co. Ltd., 1014 A. C. 62 and Barnes v. Nunnery Colliery Co. Ltd. 1912 A. C. 44 hen a case for compensation under the statute appears to arise.'

The learned Judges also referred to the following passage in Halsbury's Laws of England, 2nd Edn. Vol. 34, p. 837, para 1170:

'Injuries directly due to the operation of natural forces, for example, a stroke of lightening, do not arise out of the employment unless by reason of his employment the workman was specially exposed to such risks. Where, however, the injury is directly due to a street or locality risk, the fact that the risk itself arose from the operation of a natural force is immaterial, and it is not necessary to prove special exposure to such risks'.

The latter part of the passage has reference to the second category of cases described by me above, viz., where the forces of nature have operated upon an outside agency and the accident has taken place by reason of the fact that the workman was taken to the place of accident where the outside agency operated Far from supporting the argument advanced by Mr. Jayakar,, the decision in Mrs. Santan Fernandes' case : (1956)IILLJ21Bom favours the view that the workman is not entitled to compensation merely by reason of the fact that he is exposed to the severity of the weather conditions or the extremities 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.

(17) Mr. Jayakar also referred to the decision of a Division Bench of this Court in Bhagubai v. Central Railway, : AIR1955Bom105 . The facts in that case were:

The deceased who was employed by the Central Railway at a station on the Railway lived in the railway quarters adjoining the station. The only access for the deceased from his quarters to the station was through the compound of the railway quarters. One night the deceased left his quarters a few minutes before midnight in order to join duty and immediately thereafter he was stabbed to death by some unknown person. on a claim for compensation in respect of the death of the deceased, it was not disputed that the deceased died as a result of an accident, nor was it disputed that the accident arose in the course of his employment. It was, however, disputed that the accident did arise out of the employment of the deceased. It was held: 'That as it was established in the case that the deceased was at a particular place, that he was there because he had to be there by reason of his employment, and that because he was there he met with an accident, a proximate casual connection was established between the employment and the accident and that, therefore the accident arose out of the employment of the deceased.'

Mr. Jayakar referred in particular to the observations 'that the workman was there because he had to be there by reason of his employment and that because he was there he met with an accident'. He submitted that these observations would apply to the present case, because the workman had to go to Abadan in order to join his duties there or to carry out the duties as a Deck Bhandari. It is necessary, however, to remember, tat these observations have been made in the context of explaining the decision in 1917 A. C. 127. In the said case, death did not occur as a result of the operation of the natural forces or the forces of nature Death had occurred to the deceased by reason of third person stabbing him at the place where the deceased had gone for the performance of his duties. At page 511 (of Bom LR) : (at p. 107 of AIR ) Chagla, C. J. (as he hen was referred to the decision in 1917 A.C. 127 and observed:

'In that case a woman employed by a fishcuror, while working in a shed belonging to her employer was injured by the fall of a wall which was being built on the property of an adjoining proprietor with the result that the roof of the shed collapsed and the woman was buried under the wreckage, and the House of Lords held that the accident arose out of her employment, and the principle is well stated by Lord Shaw (p. 142): :. . . . . . . . . . . . .In short, my view of the statute is that the expression 'arising out of the employment' is not confined to the mere 'nature of the employment'. The expression, in my opinion applies to the employment as such its nature, its conditions its obligations and its incidents. If by reason of any of these the workman is brought with in he zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply'.

The case of 1917 AC 127 is a case where injury was caused by the fall of a wall while the workman had gone there in the performance of his duties. In the present case, the workman had only been exposed to severe heat and no extraneous agency operated to bring about the injury which led to his death. There is no evidence whatsoever to show that there was anything peculiar in the nature of the employment or its conditions or its obligations or its incidents which brought him within the danger zone.

(18) Finally, Mr. Jayakar strongly relied upon certain observations of my learned brother Chandrachud J. in Ibrahim v. Mackinnon Mackenzie and Co., (1965) 67 Bom. LR 735. The facts of that case were peculiar and were as follows:

Shaikh Hassan Ibrahim was employed as a deck-hand on the ship s.s. 'Dwarka'. The medical log book of the ship shows that on December 13, 1961. Shaikh Hassan complained of pain in the chest and was therefore examined, but nothing abnormal was detected clinically. The Medical Officer on board the ship prescribed some tablets for Shaikh Hassan and he reported for work on the next day. On the 15th, however he complained of insomnia and pain in the chest, for which the Medical Officer prescribed sedative tablets. The official log book of the ship shows that on the 16th when th ship was in the Persian Gulf, Shaikh Hassan was seen near the bridge of the ship at about 2-30 a.m. he was sent back, but at 3.00 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed. At 6-15 a.m. he was found missing and a search was undertaken. At 7-15 a.m. a radio massage was sent by the Master of Ship saying:

'One Seaman missing between Khorramshahr and Ashar Stop May be in River Stops All ships please keep look out'.

The ship arrived alongside Ashar Jetty at 8 a.m. when a representative of the respondents was informed that Shaikh Hassan was missing. An inquiry was held by the local Police and the British Counsel-General. Eventually, an application was made by th heir of the workman claiming compensation under Section 3 of the Workmen's Compensation Act. it was contended on behalf of the employers that there was nothing to suggest that the Seaman was in fact dead; that the death, if any, was not caused in the course of the employment and that in any event the death could not be said to have been caused by accident which arose out of the employment. The learned Additional Commissioner held that death of the seaman was not proved firstly because, there was no evidence that he fell overboard and was drowned and secondly, because the period for which the seaman was not heard of was much too short to raise a presumption under Section 108 of the Indian Evidence Act. consequently, he dismissed the application. There was an appeal which came up for hearing before my learned brother Chandrachud J. The learned Judge held, relying on the decision in Harvey v. Ocean Accident and Guarantee Corporation, (1905) 2 Ir. R. 1 that death can only be reasonably accounted for in one of the two ways - immersion in the water by accident or design; and an innocent cause ought to be presumed as against what would be prima facie a crime. There is ample authority that the presumption against crime is applicable in a civil action. In considering the question as to whether death arose out of the employment, the learned Judge referred to a number of English cases, which fell in the category of unexplained accident cases. After refereeing the passage from Halsbury's Laws of England, 2nd Edn. Vol.34 p. 823 para 1161 in which it was stated that injury must have resulted from some risk incident to the duties or service in order to bring the injury within the ambit of 'arising out of employment' the learned Judge pointed out tat the nature, conditions, obligations and incidents of employment must all be considered and if by reason of any of these factors the workman is brought within the zone of special danger, the injury would be one which arises out of employment. The learned Judge then proceeded to observed: (p. 740) -

'If the accident has occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless, of course, the workman has exposed himself to an added peril'. In the course of this judgment the learned Judge referred to the decision of the House of Lords in Marshall v. Owners of S. S. Wild Rose. 1910 A. C. 486 which was a leading case on the question of unexplained deaths. The learned Judge also referred to the decision in Swansea Vale (Owners) v. Rice, 1912 A. C. 238 in the same context. He also referred to the decision in 1917 A. C. 127 to which reference has already been made in this judgment. The learned Judge pointed out that the House of Lords in Simpson v. L. M. and S. Rly Co., 1931 A. C. 351 explained the ratio in the earlier cases. In that context the learned judge referred to the Lord Tomlin's observations to the following effect : (page 745_ - 'Now, My Lords, from these passages to which I have referred I think this rule may be deduced for application to that class of cases which may be called unexplained accident cases - namely, that where the evidence establishes that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment; but the inference as to the origin of the accident may be displaced by evidence tending to show that the accident was due to some action of the workman outside the scope of the employment'.

It would thus be seen that Chandrachud J. was dealing with a separate category of case known as 'unexplained accident cases'. The learned Judge also pointed out that a place like a ship exposes the workmen to special dangers and when the employees are working on the ship it is not necessary to establish that a particular workman was at the time of the accident at a particular job and at a particular spot. The entire ship which exposes the seamen to special perils is the place where the workman was standing in the course of his employment or performance of his duties. I was unable to understand how the observations of Chandrachud J in ibrahim's case referred to above would in any way help Mr. Jayakar in the arguments he is advancing n this case. In the present case the workman had not yet commenced his duties as a Deck Bhandar. He was in the process of joining that part of his duties although technically he had jointed his duties. While he was in the process of unpacking his effects he got this attack of heat exhaustion and collapsed. All the circumstances point to the conclusion that heat exhaustion was brought about upon the workman merely by the operation of the forces of nature viz., adversely severe weather conditions. Neither the conditions of duty nor the nature or incident of duty was in anyway responsible for the accident which overcame the workman in the present case. Had it been the case that he had commenced the performance of his duties and in the course of the performance of the duties he was led to a particular position which exposed him to special danger of exposure certainly the matter would have stood on a different footing. In substance, Mr. Jayakar's argument boils down to this that even when a workman is affiliated by the severity of weather conditions or by other forces of nature. Merely by reason of the fact that the employment required him to go to the place of extreme weather he would still be entitled to claim compensation. I am unable to accept this line of argument for reasons elaborately set out above.

(19) The last case to which reference need be made is the decision of Chitale J. in First Appeal No. 389 of 1965 decided on 28th February 1966 (Bom). In that case an application was made by the widow of one Oosman Baba, who was employed as a Seacunny on the ship called s. s. Caltex London. According to the applicant, the deceased used to carry out hard and strenuous duties as a Seacunny for twelve hours a day, standing all the time. While he was working on the ship, he contracted pulmonary tuberculosis. He suddenly fell ill on 20th January 1961, when the ship was at Bahrein. On 20th January 1961 Oosman Baba complained of cough and pain in the chest. He was immediately taken to Awali Hospital at Bahrein. On medical advice he was hospitalised the immediate diagnosis being chronic bronchitis. After further examination, his illness was diagnosed as pulmonary tuberculosis. On 28th February 1961 he died of the said disease. It was contended for the applicant that the Seacunny contacted pulmonary tuberculosis after he joined his service. There was no evidence to show that he contracted the tuberculosis after entering into the service. On examine the English cases the learned Judge came to the conclusion that unless it was established that the Seacunny contracted the disease after entering the service or alternatively unless it was proved that the work that he did either aggravated or accelerated the disease leading to the death, the applicant could not be entitled to compensation. I must, therefore, hold that the applicant in the present case has failed to prove that the injury by accident viz., death by heat exhaustion, has arisen out of the employment. The decision of the Commissioner is, therefore, correct and must be upheld.

(20) The result is, the appeal fails and is dismissed. No order as to costs.

(21) Appeal dismissed.