In a claim for compensation under the Workmen's Compensation Act, if the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture, then the applicant fails to prove his case, for the onus is upon the applicant.

( 1 ) 1 This is an appeal by the employers from an order of the Commissioner for Workmen's Compensation granting the respondent compensation amounting to Rs. 2400/- together with certain costs.

( 2 ) THE respondent-applicant was the widow or one Isac Francis, a fitter employed by the appellants. There was evidence that he had been sent, to Writers Buildings to repair a handle of an almirah, obviously therefore the work which he was sent to do was of the lightest kind.

( 3 ) THERE was evidence of a lower division assistant employed in the Writers Buildings. According to this assistant Sailendra Nath Chatterjee, the deceased workman took measurements of the almirah which was in a room on the ground-floor of the building. He went outside and started working. This assistant said that the workman had a fit and began foaming at the mouth. According to this witness the workman did not have an accidental fall.

( 4 ) MEDICAL evidence was given by Dr. Ashok Kumar Mukherjee, the Resident Medical Officer of the Campbell Hospital. He treated the deceased man when he was brought to the hospital and according to the witness it was a case of cerebral thrombosis with progressive cerebral oedema. The deceased workman died eleven days afterwards, death being due to this thrombosis and cerebral oedema.

( 5 ) THE witness stated that the deceased man had a slight injury on the upper right arm. But he said that he could not say whether he sustained that injury before the attack of thrombosis or after it. The witness however did say that if a man was in the condition the deceased man must have been, an accidental fall might bring on thrombosis and cerebral haemorrhage or aggravate the condition. The witness however could not express an opinion as to what happened because he had no history of an accident or the onset of the disease.

( 6 ) THE respondent however did give evidence, and according to her, her husband recovered consciousness in the hospital and told her that he had fallen, apparently from a height. At first she said that her husband told her that while he was working "he fell down from top. " This would suggest that he must have fallen from a height and in cross examination she made the same suggestion and said that her husband told her that he had first climbed up for work when he had a fall.

( 7 ) IT is quite clear that the learned Commissioner did not accept this woman's evidence. Quite obviously she was an untruthful witness because she insisted that her husband was perfectly well and never missed any work, though the evidence of the Manager of the appellants was that he had had previous fainting fits and was frequently away from work owing to his health. The learned Commissioner however came to the conclusion that after eliminating the widow's evidence the probabilities pointed to an accident, and therefore he held that the death of the workman was the result of an accident arising out of and in the course of his employment.

( 8 ) THAT death occurred in the course of his employment admits of no doubt whatsoever. But it is not sufficient to prove that the workman died during his employment. It must be shown that he died as a result of an accident, that is, there must be some connection between his work and his death.

( 9 ) ALL that can be said in this case is that the workman after measuring something on an almirah went outside apparently to start work. What he was doing outside is not known. But he was found foaming at the mouth. There is no direct evidence that he fell, but, on the other hand, it cannot be said that he did not. I think that he must have fallen. But whether the fall preceded the attack of cerebral haemorrhage and thrombosis, or whether the attack of cerebral haemorrhage and thrombosis caused the fall, it is utterly impossible to say.

( 10 ) THE injury on the upper right arm suggests that there was a fall. But a court cannot deduce anything material from that injury because the workman could ha