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IN THE HIGH COURT OF BOMBAY
(V.A. Naik J.)
SMT. MARIAMBAI ADAM FAKIR - Appellant
Versus
MESSRS. MACKINNON MACKENZIE AND Co., PRIVATE, LTD. - Respondent
Advocates appeared
For appellant- M.V. Jayakar
For respondents- J.I. Mehta instructed by Crawford Bailey and Co.
WORKMEN COMPENSATION - HEAT EXHAUSTION - INJURY BY ACCIDENT - ARISING OUT OF EMPLOYMENT - SECTION 3(1) OF THE WORKMEN'S COMPENSATION ACT, 1923 - INTERPRETATION - EXTREME WEATHER CONDITIONS - SPECIAL DANGER - PROXIMATE CAUSAL CONNECTION.
Fact of the Case:
The deceased, Adam Fakir, was recruited as a Deck Bhandari on July 19, 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 steamer called Daressa, which reached Khorramshahr port on July 29, 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 a midship accommodation. Ambulance was called as Adam Fakir appeared to be in deep coma. It was ascertained that the collapsed mans pulse was extremely high and weak and that his temperature was 104°. Orders were given by the Master that the patient be treated for 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 Fakir died due to heat exhaustion on July 29, 1962.
Finding of the Court:
The Commissioner for Workmens 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.
Issues: Whether the heat exhaustion suffered by the deceased arose out of his employment.
Ratio Decidendi: 1. In order to establish a claim for compensation under section 3(1) of the Workmen's Compensation Act, 1923, the applicant must prove that the injury by accident arose out of and in the course of employment. 2. Heat exhaustion is an environmental disease and not a disease due to any special exertion. It is caused merely by exposure to high temperature. 3. In cases where the disease is contracted by virus or bacillus, there is no difficulty in establishing the nexus between the disease and the accident. However, in cases where the onset of the illness is gradual and steady, and the genesis of the illness may not be definitely traceable, the theory of occupational diseases has been introduced. 4. 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 an injury by accident and he or his heirs would be entitled to claim compensation. 5. In cases where the accident has occurred by the operation of the forces of nature by themselves, a distinction has been made between cases where 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, and cases 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 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 the employment. 6. In the present case, the workman had not yet commenced his duties as a Deck Bhandari. He was in the process of joining that part of his duties although technically he had joined his duties. While he was in the process of packing 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 any way responsible for the accident which overcame the workman in the present case.
Final Decision: Appeal dismissed.
2. The opposite party contended that heat exhaustion is a natural cause 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 Workmens 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 an accidental death or even 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 and also the time whe
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