Hindusthan Ice and Cold Storage Co. Ltd. vs Zubeda Bibi

Harries, C.J.—This is an appeal by the employers from an order of the learned Commissioner for Workmen''s Compensation awarding the Respondent a sum of Rs. 2,400 as compensation in respect of the death of her husband.

The facts of the case are not disputed. The deceased man, Methoo, was employed by the Appellants as a motor driver. On September 1, 1947, whilst driving in Calcutta upon his employers'' business, the lorry, which he was driving, was attacked by a riotous mob and Methoo was killed. The attack took place in street known as Nandan Bagan Street as the lorries were returning from Patipukur railway station, where they had gone under their employers'' instructions to deliver ice.

There can be no doubt whatsoever and indeed it is admitted, that when this man was killed he was driving the lorry in the course of his employment. He had on his employers'' orders delivered ice at Patipukur railway station and was returning to his employers'' premises when this mob attacked the lorry and killed him.

It was contended in the court below and has been contended before us that, though the accident arose in the course of the man''s employment, it did not arise out of the employment. The Respondent had to prove, in order to obtain compensation, that the death of her husband resulted from an accident arising out of and in the course of his employment. It was as essential to prove that the accident arose out of the employment as it was to show that it arose in the course of his employment. The only question that the court below had to decide was whether this accident arose out of the man''s employment.

Learned advocate for the Appellants has contended that this was not a risk of the deceased''s employment as a motor driver. It was a risk that all persons were open to in case of communal rioting and that this could not be regarded as a risk incidental to the employment of the deceased by the Appellants as a motor-driver.

It must be remembered that, in August and September, 1947, feelings were running high in Calcutta and there was considerable tension, between the communities. A Hindu was liable to be attacked by Mahomedans when passing through a Mahomedan area or passing through any street in which there were at that moment Mahomedans. Similarly, a Mahomedan was liable to be attacked in like circumstances. Sending a Hindu or a Mahomedan on to the streets in those days was undoubtedly exposing that particular person to a risk of being attacked by a mob composed of the other community. Sending out Mahomedan motor drivers to drive through Calcutta was exposing them to a risk of being attacked by Hindu mobs. Similarly sending a Hindu driver out would have equally exposed him to the risk of being attacked by Mahomedan mobs. The deceased was attacked by a Hindu mob and killed and in my view the learned Commissioner was right in holding that the accident arose out of the employment.

This matter was considered by the House of Lords in England in the case of Dennis v. A.J. White and Company (1917) A.C. 479, in which it was held that where a workman is sent into the streets on his employer''s business, whether habitually or occasionally and -whether on foot or on a bicycle, or on an omnibus or a car and he meets with an accident by reason of a risk of the streets to which his employment exposes him, the accident arises out of as well as in the course of his employment and it is immaterial that the risk which caused the accident is one which is shared by all members of the public using the streets under the like conditions. At p. 483 Lord Finlay L.C. quoted the observations of Lord Dunedin in another case where it was stated as follows:

The accident must, of course, arise both in the course of and out of the man''s employment. Well, now, it is admitted that this accident arose in the course of the Appellant''s employment. He was doing his ordinary business as a canvasser when the accident occurred. The only question to be determined that has been argued before us is whether it arose out of his employment. Now, I think it did. I think that it was one of the ordinary dangers to which his employment exposed him, because it is quite clear from the statements before us that his employment as collector forced him to traverse the streets. And I think, therefore, that a danger, which is an ordinary danger in the street--and I think we are entitled of our own knowledge to know that the behaviour of a passing horse is one of the ordinary dangers of the street--is therefore a danger arising out of his employment.

It is quite true that many members of the public are exposed to the same danger, but that does not seem to me to be the criterion. These many members of the public might be either parties who are in employment or who are not; but, even if they were parties in employment, they might well be in the street, not in the course of their employment and then there would be no liability. I refer to the ordinary case of a workman who is leaving the factory.

The House of Lords took a similar view in the case of Arkell v. Gudgeon (1917) 10 B.W.C.C. 660. In that case, the Applicant was an elderly woman employed by the Respondent to look after his dental surgery. Part of her duties consisted in going errands and on the day of the accident she was sent on an errand and whilst returning she slipped on some greasy substance on the pavement and falling broke her wrist. Before the arbitrator and the court of appeal it was admitted that on the authority of the earlier decisions in the court of appeal the employer was not liable. The House of Lords however allowed the appeal on the ground that the case was clearly covered by their own decision in Dennis v. White A.J. and Co. (supra) to which I have made reference.

It seems to me quite clear that the learned Commissioner was right in holding that the risk of being attacked by a riotous mob on September 1, 1947, was a risk incidental to the user of the streets and clearly incidental to the employment of this unfortunate man who was sent out to drive a lorry on the streets for his employers.

That being so, the decision of the learned Commissioner was right and the appeal fails and I would dismiss it with costs, the hearing fee being assessed at three gold mohurs.

The interim injunction on the commissioner is vacated.

Sinha, J.

I agree.