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Miscellaneous Appeal No. 109 of 1968, decided on 9th March 1970.

---Ss. 3 & 30 Suit for compensation‑Injury arising "out of employment " Deceased at time of death employed to remove Bauxite Ore lying in hold of a ship‑Deceased dying of suffocation due to inhalation of Bauxite Powder‑Death, held, consequence of inhaling Bauxite Powder although no post‑mortem held save inquest under S. 174, Cr. P. C. Expression "accident" used in ordinary sense of the word as denoting an unlooked for mishap or an untoward event not expected or designed ‑Absence of medical evidence held not to be a decisive factor in matter of compensation‑Compensation allowed. .

When we talk of an accident within the meaning of the Workmen's Compensation Act we are not speaking of something that is fortuitous or that has arisen from exterior and external causes. There may be an accident to a workman which happens to him from internal causes without there being any mischance or mishap to the machinery or work on which he is engaged. The expression accident' is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. If a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in this is accidental injury in the sense of the statute.

Where a workman engaged to remove Bauxite Ore (in form of soft stone and powder) from the hold of a: ship, complained of suffocation and coming out of the ship‑hold vomitted and died, it was held that despite fact that no post--mortem was held death appeared to be the consequence of inhaling bauxite powder although there was no medical evidence on record to establish the fact.

McForlane v. Hutton Bros. (Stevedores) Ltd. (1926) 20 B W C C 222; Moose v. Tredogar Iron & Coal Co. Ltd. (1968) 31 B W C.C 359 (B) and Ormond v. C. D. Holmes & CG. Ltd. (1937) 2 All E R 795 distinguished.

Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust A I R 1954 Bom. 180 ref.

Nizam Ahmad for Appellant.

S. A. Channa for Respondent.

Dates of hearing: 10th December 1969 and 9th March 1970.

This miscellaneous appeal is directed against the order dated 30th September 1968 of the Commissioner by which he awarded Rs. 6,000 as compensation and Rs. 36 as costs to the respon dent.

2. Deceased Jamal was a Dock labourer. On 28th August 1965 he left his house at about 6 a.m. and was employed by the appellant to remove Bauxite Ore in the hold of s.s. "Sagar Gita"'. The ore was lying in‑ the hold in the form of soft stone and" powder. The deceased worked.: from 7 a.m. till 10 a.m. when hell complained of suffocation. He then climbed up to another hold to get some fresh air, where he vomitted and died. His dead body was not sent for any post‑mortem examination, but there was an inquest and the report disclosed that he died as a result of heart failure., The respondent then filed an application for compensation under section 3 of the Workmen's Compensation Act on 7th January 1966. The appellant in defence contended before the Commissioner that he had died a natural death and not as a: result of any personal injury by accident arising out of and during the course of his employment with them. It was also denied that he was employed with them at the time of the accident.

3. Upon the pleadings of the parties the following four issues were struck:‑

(1) Whether any accident occurred

(2) Whether the deceased died due to the accident arising out of and in the employment of the opponent

(3) Which group

(4) Whether the application is maintainable under sections 10 and 22 of the Workmen's Compensation Act

The Commissioner by his reasoned‑out order allowed the claim of the respondent to the extent just indicated above.

4. The appellant being thus aggrieved has come up in appeal under section 30 of the Workmen's Compensation Act, 1923. The only point urged at the Bar is that in the absence of the medical evidence ‑to establish the cause of his death it is not possible to say that the deceased had died as a result of personal injury due to an accident arising out of and in the course of his employment.

5. It is true that the dead body of the deceased was not sent for post‑mortem examination. However, an inquest was held on the dead body of the deceased under section 174, Cr. P. C. and the proceedings of that inquest have been brought on record. It appears from that material that the deceased had died as a result of heart failure. Apart from it there is the evidence of two persons, namely, Ahmad and Yousuf, to whom the deceased had complained of suffocation due to inhalation of powder. Accord ing to Ahmed, the hold was full of dust which was white in colour. At about 10 a.m. the deceased had complained of suffocation due to its inhalation. He vomitted there and then fainted. He then climbed the ladder to go to another hold for getting fresh air where he again vomitted and died. There was lot of dust in his vomit: This witness has also stated in his cross examination that other labourers had also suffered suffocation but they had gone up to get fresh air and then they became alright. The evidence of Yousuf, who is the second eye‑witness, is also to the same effect. Abdullah who was examined in defence has also stated that the deceased had complained of suffocation and uneasiness and thereafter he vomitted and died. There is therefore, no doubt that the hold was full of white powder and not only the deceased but the other labourers had inhaled it which had caused suffocation to them but they had subsequently become, alright. There is no evidence on record to establish any disease in the deceased which could have caused his death. On the contrary it is in evidence that the deceased was hale and hearty when he came to work and it was while he was in the hold that he had the feeling of suffocation and died after a short while. It is, therefore, not correct to say that he had died a natural death. It was in the course of his employment that he had inhaled the powder and the death appears to be a consequence of it although medically it has not been established. The Commissioner for Workmen's Compensation relied on the following observation of Lord Hanworth M. R. in the case of McForlane v. Hutton Bros.

(Stevedores) Ltd. ((19 26) 20 B W C C 222) and awarded the compensation:‑

"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."

6. The next case relied on was that of Moore v. Tredogar Iron & Coal Co. Ltd. ((1968) 31 B W C C 359 (B)). I asked the learned counsel for the appellants whether it is possible to distinguish these two cases and he stated that the only distinguishing feature is that in the instant case the cause of death has not been established and that, therefore, the law laid down in these two cases will not be applicable.

7. It is clear that even though the cause of death has not been established by medical evidence yet there can be no doubt that it has been proved that before his death he had complained of suffocation due to inhalation of bauxite powder and that he felt uneasy and vomitted when he went up to another hold and died shortly thereafter. In the vomit there was whitish powder. The cause of death therefore has connection with the work that he was employed to do and, in my view, it will be clearly covered by the following observation of Lord Hanworth M. R:‑

"But we have a decision in the speech of Lord Macnaghten in Fenton v. Thorlay & Co. Ltd. 1903 A C 443, which has always been held the leading authority in this class of case In that case it was held that when you talk of an accident within the meaning of the Workmen's Compensation Act you are not speaking of something that is fortuitous or that has arisen from exterior and external causes. There may be an accident to a workman which happens to him from internal causes without there being any mischance or mishap to the machinery or work on which he is engaged. Lord Macnaghten says, at p.447: A man injures himself suddenly and unexpectedly by throwing all his might and all his strength and all his energy into his work by doing his very best and utmost for his employer, not sparing himself or taking thought of what may come upon him, and, then he is to be told that/his , case is outside the Act because he exerted himself , deliberately, and there was an entire lack of the fortuitous element.' Again he says at p. 448 : 'I come, therefore, to the conclusion that the expression 'accident' is used in. the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.' He quotes with approval the word of Lord McLern in Hensey v. White, (1900) 1 Q B 481, saying this: If a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in this is accidental injury in the sense of the statute.' Finally, on p. 451, Lord Shand says, 'accident" 'denotes or includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked‑for mishap or occurrence'."

8. The learned counsel for the appellant invited my attention to the case of Ormond v. C. D. Holmes & Co. Ltd. ((1937) 2 All E R 795). In that case there was definite medical opinion that the deceased had died as a result of a second stroke which was bound to occur in any event and it was, therefore, held that the incapacity was due to disease no doubt aggravated by his work, but as it was impossible to point to any specific event that was responsible for his change in condition, there was no accident within the Work men's Compensation Act, 1925". Here the emphasis was more on the disease which had nothing to do with his employment. Additionally, there was also no particular exertion or over exertion which could be the cause of his death. This case is distinguish able on facts. The judgment of the Court of Appeal in this case has taken note of the two judgments indicated earlier and has distinguished this case on the above reasoning. The learned counsel then invited my attention to the case of Laxmlbai Atmaram v. Chairman and Trustees, Bombay Port Trust (A I R 1954 Bom. 180). In that case also the meaning given to the word accident in the above case has been followed but the distinguishing feature was that there was the finding of the Commissioner for Workmen's Compensation that he had failed to see that was the straits caused on the heart of the deceased by his duty as a night watchman and that it was, therefore, impossible to link the death of the deceased with any exertion the deceased may have had on the day of his death. The High Court accepted that finding of fact and decided the appeal on that basis. That judgment is in line with the judgment reported in the case of Ormond v. C. D. Holmes & Co. Ltd. In the instant case as observed earlier there is a positive connection between the injury resulting in the death of the deceased and the suffocation due to inhalation of bauxite powder. The absence of the medical evidence could not therefore be a decisive, factor in the circumstances of this particular case. In conclusion this appeal is dismissed with costs.

K. S. A. Appeal dismissed.

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