A. R. SHEIKH, J.-This Letters Patent Appeal has arisen out of an accident In the factory of BECO Ltd., the respon--dent, on the 17th of January 1961, when Jalal Din, a work--man in the employ of ECO Ltd., died. The Inspector of Factories made a reference on the 24th of August 1964, under section 10- C of the Workmen's Compensation Act about the death. Thereupon, the Workmen's Compensation Commis--sioner issued a notice to the appellant, the widow of the deceased, to produce evidence in support of her claim. Simultaneously he issued a notice to the respondent to show catsup why compensation be not awarded to the dependents of the deceased in accordance with law. During the course o: trial before the Workmen's Compensation Commissioner a number of pleas were taken, which may be reproduced for ready reference:- "(1) That Begum Jalal-ud-Din having not filed any petition far a claim of compensation is not properly ~ described as a petitioner. She has no locus standi.
(2) That the reference by the Labour Officer and Inspector of Factories is not in the mandatory form FF as prescribed by rule 14 of the West Pakistan Workmen's Compensation Rules, 1961, in pursuance of section 10-C of the Workmen's Compensation Act, 1923.
(3) That the Inspector of Factories was himself not satisfied as to the entitlement of the deceased Jalal-ud-Din to compensa--tion nor even alleged that she wag so entitled under the Act, which is sine qua non for the eligibility of the reference. f he present reference is therefore incompetent.--- On merits the respondent-Company while contesting its liability admitted that the deceased, Jalal-ud-Din, died of heart failure. The evidence produced was to the effect that Jalal-ud-Din deceased was working 1n the factory premises and, at the relevant time, he was drawing with a chalk certain figures on a piece of rubber sheet; that he suddenly died while at that job; that there was no outward or apparent injury on the dead body; that the Medical Officer of tile Company declared it to be a case of heart failure; that the dependants, including the petitioner, Begum Jalal- ud-Din, refused to have post-mortem examination of the dead body. On this evidence, the learned Workmen's Compensation Commissioner while repelling the preliminary objections came to the conclusion that the death of the deceased was the result of an accident arising out of and in the course of his employment. The Company appealed in which all the preliminary objections were reagitated. The learned Single Judge has repelled the same in a detailed order but has remanded the case to the Workmen's Compensation Commissioner on the ground that the requirements of section 3 have not been fulfilled. The Commissioner has been directed to hear the parties once again and, if necessary, record such evidence as may be further tendered and write a reasoned order upon the conclusion, which he may reach. During the course of the judgment the learned Judge has also referred to the recasting of an issue of fact, which was settled in the first instance as: "Whether the deceased workman died of personal injury by accident arising out of and in the course of his employment?"
This was altered to read "(1) Whether the deceased workman did not die of personal injury by accident arising out of and during the course of his employment?
(2) If issue No. 1 is not proved, whether the respondent iv not liable to pay compensation to the heirs of the deceased workman?"
The learned Single Judge has accepted the respondent's contention that the aforesaid issue has been erroneously recast because, according to section 3 of the Act, onus probandi lay heavily on the claimant-dependent of the deceased workman to prove that he or she was entitled to compensation. The learned Judge in Chambers has referred to section 106 of the Evidence Act, which was strongly relied on behalf of the appellant and declined to agree with the arguments advanced that it was a case of facts specially within the knowledge of the Company and, therefore, onus probandi had been rightly shifted from the appellant to the Company, when the issues were recast.
2. Feeling aggrieved by the order of remand, the appellant has filed the present Letters Patent Appeal, in which the main question argued and debated is the onus probandi of the aforesaid issue. Learned counsel for the respondent-Company has, bow ever, also attempted to reagitate the pleas embodied in the preliminary issue (already set out in detail above) but, because, the Company has felt satisfied with the judgment of the learned Single Judge and has not filed any appeal or cross-objections, we do not propose to deal with the said objections, which controversy has been set at rest by the learned Single Judge in his judgment.
3. The question of onus probandi in cases of compensation is not denied to lie initially on the claimant in view of the fact that issues in the application are to be framed under rule 3tr of the West Pakistan Workmen's Compensation Rules, 1961, after considering the Written Statement and the result of any examination of the parties with a view to ascertain upon what material propositions of facts or law the parties are at variance. In the instant case, the claim of the appellant before the Workmen's Compensation Commissioner was that she is entitled to compensa--tion on account of the death of her husband, who died In the factory premises while' at his job and the accident resulting in his death arose out of and during the course of his employment. This claim has been met by the Company by saying that the workman at the relevant time was employed merely for drawing certain figures with a piece of chalk on a rubber sheet and he was no, performing any strenuous duty or any other duty with added peril and he died a natural death because of heart failure and not as a result of any accident arising out of or in the course of his employment. On this statement and written state--ment, the following second issue on fact, in addition to the first Issue reproduce above was framed:- "Whether respondent is not liable to pay any compensation to the workman or his heirs and, if so, what amount is to be paid?"
Issue No. 1, as already stated above, had been recast and split into two parts and onus was placed on the respondent to show that the deceased workman had not died of presonal injury by accident arising out of and in the course of his employment with the respondent and what was the cause of his death. This recasting of issue and shifting of onus probandi is justified by learned counsel by saying that taking the facts as disclosed in evidence that the workman died in the factory premises while at his job and although there was no apparent injury on the dead body, the death, even if it may be due to heart failure, was the result of physiological change and if it was not a case of suicide, which is not the respondent's case, the cause of death is within the special knowledge of the respondent and it Is for them to disclose that evidence and the onus thus stands shifted and the learned Single Judge has misdirected himself in law in holding to the contrary. On the other hand, the learned counsel for the respondent argues that section 106 of the Evidence Act has no application and in such cases it is for the claimant to prove that the death has been the result of an accident arising out of and in the course of employment. He has relied on the illustrations attached to the section which, as already stated above, have been referred to -in detail by the learned Single Judge and it has been contended on the basis of the said argument that onus has been rightly placed on the appellant.
4. The question of onus in claim cases has been considered, keeping in view the provisions of section 106 of the Evidence Act in various authorities. Ordinarily onus is to be placed on a party who would fail if no evidence is led by either side. This is the proposition of law contained in section 102 which reads:- "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
The burden of proof a9 to a particular fact is dealt with in section 103 which is also reproduced for ready reference:- "The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
Then comes section 104, which deals with burden of proving fact to be proved to make evidence admissible. Section 106 deals with burden of proving fact especially within knowledge. Since the controversy centres round this section, it may also be reproduced with advantages: - "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
The fact that the workman had died at the factory premises while he was employed and was working at a particular job is all that can be stated by the claimant-appellant. The next questions whether this i9 sufficient enough to sustain the claim. The other facts how the workman was employed, what was the nature of the job that he was handling, at what time he started the job, at what time he collapsed, in what manner he behaved during thus period or immediately before his collapse, what medical assistance was rendered by the employer, what other movements were made by the deceased, what words were uttered by him, etc., etc., are all facts which are not within the knowledge of the claimant and these perhaps have to be laid before the Court by the employer for a proper inference to arrive at in respect of the accident and to determine whether or not the death was the result of a physiological change falling within the term 'accident' arising out of and in the course of employment. Its has been said in Halsbury's Laws of England, Second Edition, paragraph 1179 at page 853: "The burden of proof both that the accident arose out of and in the course of the employment rests in the first place upon the workman or his dependants. Where, however, the workman is engaged in his employer's work up to the time of his death, and the last acts known about him are consistent with the continuance of that work, the burden is on those who allege a cessation of the work; and similarly, if it is alleged that the workman has been guilty of a breach of regulations or bas placed himself within the principle of 'added peril', the onus of proving it is upon the employer."
If an analogy is to be cited, the case is one of bailment covered by sections 151 and 152 of the Contract Act wherein if negligence is attributed to the bailee for loss of goods in a claim for compensation it is for the plaintiff to establish that the bailer has not taken care of a prudent person in the circumstances and therefore it is a case of negligence but it is not for the bailee to show that he has not been negligent. However, the bailee is in law bound to place relevant material before the Court and it will be then for the Court to draw inference of negligence or absence thereof but the initial onus is on the plaintiff: Dwarkanath v. The Rivers Steam Navigation Co. Ltd, (27 C L J 615) refers. Similarly, in case of a claim under the Workmen's Compensations Act the onus is on the claimant to - show that the death has arisen out of and in the course of employment, whether it is a case of apparent injury or physiological change. At the same time, it is for the employer to place all the evidence and material fact before the Court to draw an inference from those facts whether the death has been the result of that accident or not. In this respect, reference may again be made to another paragraph of Halsbury's Laws of England, Second Edition, namely paragraph 1180, wherein it has been said:- "If, from facts admitted or proved, a reasonable inference can be drawn that the accident arose out of and in the course of the employment, and that inference is drawn by the Arbitrator, his decision cannot be reversed."
Considering all this: propositions of law, we are of the view that the burden of proof has been rightly placed by the learned Single Judge on the claimant and no prejudice has been caused to her by placing the onus on the claimant in accordance with law.
However, we would like to make it clear that it will be for the respondent-Company to place all the material evidence before the Commissioner pertaining' to death of the workman and it will be for the commissioner then to draw inference there from and, come to a conclusion on the issues framed. We would, however refrain from discussing the case-law cited before us pertaining to heat failure cases (1910 A C 242, 1933 A C 501 and PLD 1955 P C 82) as it will be for the learned Commissioner to give decision on merits.
5. Before parting with this case we may add that at one stage it eves contended that the Management of the BECO Ltd., the respondent-Company, having been taken over by the Central Government under President's Order loo. 1 of 1972 and President---s Order No. 2 of 1972 read with Martial Law Regulation ho. 125 of 1972, the appeal as against the present Management has abated because it was, if at all, the liability of the previous Manage--ment. We accordingly called upon Molvi Ehsan-ul-Haq, learned Standing Counsel for the Central Government, to assist us in the matter. We have heard him as also learned counsel for the parties and we are of the confirmed view that the Central Government having not taken over the assets and liabilities of the respondent-Company, mere change of Management under trio aforesaid legislation does not alter the position. The Companycontinues to remain liable for the claim, if any found by the competent authority. The mere fact that is some cases under paragraph 5 of Martial Law Regulation No. 125, the previous Management has been permitted to be sued by a person aggrieved of cancellation or rescission of a contract or an agreement oil an obligation undertaken by the company prior to the Management having been taken ever would not affect the liability of the Company in the instant case. We may also add that the provisions with regard to the payment of any amounts due to a creditor under the said Martial Law Regulation, paragraph 4, also do not bar the proceedings.
Learned counsel for the respondent has not been able to substantiate the objection raised in this respect and we repel the same.
6. The appeal is disposed of with-the observations above.
There will be no order as to costs.