Case: Mackinnon Mackenzie and Company Private, Limited Vs. Rita Fernandez Smt

Ramaswami, J.1. This appeal is brought from the judgment of the Bombay High Court dated 2 March 1966 dismissing the appeal brought by the appellant against the order of the Commissioner of Workmens Compensation awarding a sum of Rs. 4, 500 to the respondent.2. The respondent is the widow of one Baptista Mascrenbas (hereinafter referred to as the deceased). The deceased was employed on board the S. S. Iberia a ship belonging to the P & O Steam Navigation Co. Ltd., of which the appellants are the agents. On 2 December 1961 at about 4 p.m., the deceased was admitted to the ships hospital suffering from "hopatomagaly" and "basal pulmonary congestion." The deceased died on 10 December 1961 at about 6-20 p.m. and the cause of death according to post mortem examination was found to be cardiac failure with pulmonary collapse and abscess of the liver. On 4 December 1962 the respondent filed an application before the Commissioner for Workmens Compensation, Bombay, claiming a sum of Rs. 4, 500 as compensation and contending that the deceased was working as a general servant and had to perform his duties standing up, that this caused an undue strain on his heart and that the cause of his death was cardiac failure and hopatomagaly which he had contracted "as a result of disease in the course of employment." The claim was resisted by the appellant on the ground that the illness which resulted in the death of Baptista had nothing to do with the employment and that the deceased did not die of any injury by accident arising out of and in the course of employment. By his judgment dated 29 March 1965 the Commissioner allowed the application of the respondent and awarded a sum of Rs. 4, 500 to the respondent. The Commissioner held that the deceased died of an injury due to an accident arising out of and in the course of employment. He took the view that the very fact that the deceased had to be hospitalized on 2 December 1961 showed that he must be suffering from the disease sometime prior to that and the strain of the work he had to do must have accelerated the illness and the consequent death. Against the judgment of the Commissioner the appellant preferred an appeal to the Bombay High Court contending that the finding of the Commissioner was contrary to evidence and was based upon surmises and speculation. By his judgment dated 2 March 1966, Chitale, J., dismissed the appeal. The learned Judge held that under the provisions of the Merchant Shipping Act, 1894, it was incumbent upon the master of the ship to enter into the official log-book the medical treatment given to an ailing seaman, that there was no entry in the log-book or any other evidence on record to show that the deceased remained in hospital from 3 to 10 December 1961, that these facts were within the special knowledge of the appellant, that the failure to lead such evidence would result in an adverse inference being drawn against the appellant and that the adverse interference to be drawn was that the deceased worked between 3 and 10 December 1961 and "that may have" aggravated his illness.Section3 of the Workmens Compensation Act, 1923, reads as follows :"3.(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 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, 3. It is well-established that under this section there must be some causal connexion between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would be liable.4. Even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident. This was clearly laid down by the House of Lords in Clover Clayton & Co. v. Hughes [1910 A.C. 242] where the deceased, whilst tightening a nut with a spanner, fell back on his hand and died. A post mortem examination showed that there was a large aneurysm of the aorta and that death was caused by a rupture of the aorta. The aneurysm was in such an advanced condition that it might have burst while the man was asleep, and very slight exertion or strain would have been sufficient to bring about a rupture. The County Court Judge found that the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal, and held upon the authorities that this was an accident within the meaning of the Act. His decision was upheld both by the Court of Appeal and the House of Lords :"No doubt the ordinary accident, "said Lord Loreburn, L.C."is associated with something external; the bursting of a boiler or an explosion in a mine, for example. But it may be merely from the mans own miscalculation, such as tripping and falling. Or it may be due to both internal and external conditions, as if a seaman were to faint in the rigging and tumble into the sea. I think it may also be something going wrong within the human frame itself, such as the straining of muscle or the breaking of a blood vessel. If that occurred when he was lifting a weight, it would properly be described as an accident. So, I think, rupturing an aneurysm when tightening a nut with a spanner may be regarded as an accident."5. With regard to Lord Macnaghtens definition of an accident being "an unlooked-for mishap or untoward event which is not expected or designed" it was said that an event was unexpected if it was not expected by the man who suffered it, even though every man of commonsense who knew the circumstances would think it certain to happen.6. It was, however, contended on behalf of the appellant that there was no evidence whatever to establish in this case that the employment of the deceased contributed to his death. In other word, the argument was that there was no evidence to establish that the death of the workman was caused not only by the disease but by the decease as well as the employment. The difficulty in the present case is that the appellant has not produced the necessary material to show that the workman was an indoor patient in the hospital from 2 December to his death on 10 December and what his condition was during that period. Under S.230 of the British Merchant Shipping Act, 1894, it is obligatory on the master of the ship to make such entries in the log-book, the medical treatment given to an ailing workman. In the present case the log-book is produced. The entries in that book indicate that on 2 December 1961, the deceased was admitted to the hospital, as he was suffering from hopatomagaly and basal pulmonary congestion. This entry was made on 3 December 1961.The case of the appellant is that the workman was in the hospital as an indoor patient from 2 to 10 December. In the log-book, however, the only entry made after the one mentioned is regarding his death, which occurred on 10 December 1961. As to what happened between 2 and 10 December is not indicated by any entry in the log-book. There is no entry to that effect in the log-book nor does the log-book indicated what treatment he was given during the said period. It was said that the appellant produced a special medical report of the surgeon of the ship before the Commissioner but it was objected on behalf of the respondent presumably on the ground of want of necessary proof. There was, however, no attempt on the part of the appellant to prove that report in a legal manner. The result, therefore, is that there is no evidence to establish that the workman was lying in the ships hospital as an indoor patient from 2 to 10 December. The High Court has taken the view that the appellant had special knowledge as to whether the workman was an indoor patient lying in the ships hospital during the abovementioned period or whether he was asked to carry out his duties and since the appellant produced no evidence an adverse inference should be drawn against the appellant. The High Court observed that was no evidence to establish that after 2 December, 1961, the workman was not asked to work but was in the hospital right up to the date of his death. In the absence of necessary evidence which the appellant could and should have led in the case the High Court drew the inference that the death of the workman arose out of and in the course of his employment.

Decision:
0[ds]It is well-established that under this section there must be some causal connexion between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would beif a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident. This was clearly laid down by the House of Lords inClover Clayton & Co. v. Hughes [1910 A.C.difficulty in the present case is that the appellant has not produced the necessary material to show that the workman was an indoor patient in the hospital from 2 December to his death on 10 December and what his condition was during thatS.230 of the British Merchant Shipping Act, 1894, it is obligatory on the master of the ship to make such entries in the log-book, the medical treatment given to an ailing workman. In the present case the log-book isthe present case the log-book isproduced. The entries in that book indicate that on 2 December 1961, the deceased was admitted to the hospital, as he was suffering from hopatomagaly and basal pulmonary congestion. This entry was made on 3 December 1961.The case of the appellant is that the workman was in the hospital as an indoor patient from 2 to 10 December. In the log-book, however, the only entry made after the one mentioned is regarding his death, which occurred on 10 December 1961. As to what happened between 2 and 10 December is not indicated by any entry in the log-book. There is no entry to that effect in the log-book nor does the log-book indicated what treatment he was given during the saidwas, however, no attempt on the part of the appellant to prove that report in a legal manner. The result, therefore, is that there is no evidence to establish that the workman was lying in the ships hospital as an indoor patient from 2 to 10High Court has taken the view that the appellant had special knowledge as to whether the workman was an indoor patient lying in the ships hospital during the abovementioned period or whether he was asked to carry out his duties and since the appellant produced no evidence an adverse inference should be drawn against the appellant. The High Court observed that was no evidence to establish that after 2 December, 1961, the workman was not asked to work but was in the hospital right up to the date of his death. In the absence of necessary evidence which the appellant could and should have led in the case the High Court drew the inference that the death of the workman arose out of and in the course of hised that under this section there must be some causal connexion between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would bey in the present case is that the appellant has not produced the necessary material to show that the workman was an indoor patient in the hospital from 2 December to his death on 10 December and what his condition was during that30 of the British Merchant Shipping Act, 1894, it is obligatory on the master of the ship to make such entries in thethe medical treatment given to an ailing workman. Inthe present case thed. The entries in that book indicate that on 2 December 1961, the deceased was admitted to the hospital, as he was suffering from hopatomagaly and basal pulmonary congestion. This entry was made on 3 December 1961.The case of the appellant is that the workman was in the hospital as an indoor patient from 2 to 10 December. In thehowever, the only entry made after the one mentioned is regarding his death, which occurred on 10 December 1961. As to what happened between 2 and 10 December is not indicated by any entry in theThere is no entry to that effect in thenor does theindicated what treatment he was given during the saidt was said thatthe appellant produced a special medical report of the surgeon of the ship before the Commissionerit was objected on behalf of the respondent presumably on the ground of want of necessarys, however, no attempt on the part of the appellant to prove that report in a legal manner. The result, therefore, is that there is no evidence to establish that the workman was lying in the ships hospital as an indoor patient from 2 to 10The High Courthas taken the view that the appellant had special knowledge as to whether the workman was an indoor patient lying in the ships hospital during the abovementioned period or whether he was asked to carry out his duties and since the appellant produced no evidence an adverse inference should be drawn against the appellant.The High Courtobserved that was no evidence to establish that after 2 December, 1961, the workman was not asked to work but was in the hospital right up to the date of his death. In the absence of necessary evidence which the appellant could and should have led in the case the High Court drew the inference that the death of the workman arose out of and in the course of hisemployment. In our opinion, the High Court was right in holding that in the circumstances of this case a duty was imposed on the appellant to lead evidence which was within its special knowledge and in the absence of such evidence an adverse inference should be drawn against the appellant.