Koduri Atchaymma vs Palangi Atchamma

Madhava Reddy, J.—This is an employer''s appeal u/s 30 (I) of the Workmen''s Compensation Act against the order of the Commissioner for Workmen''s Compensation, Andhra Pradesh in W.C. Case No. 277 of 1963 awarding a sum of Rs. 3,006 to the Respondent workman who met with an accident.

It is common ground that Palangi Veeraju alias Chiranjivi was one 3mong several others who formed a Jattu to carry quarry material in the lorry belonging to the Appellant from the quarry site to the work spot of P.W. D. The duty of the workman was to load the quarry material at the quarry site in the lorry and travel along with the lorry and to unload it at the work site. After unloading, they again travel in the lorry, reach the quarry site and again load the lorry. During the course of the day several such trips are made from the quarry site to the work site. In the course of one such trip, the deceased who was in the lorry saw a wild rabbit passing on the road and he attempted to hit it and in this attempt he fell down from the lorry and met with the accident which resulted in, his death. On these admitted facts it was contended before the Commissioner by the employer that he is not a workman within the meaning of the Workmen''s Compensation Act and further that the injury caused to the Workman by accident did not arise out of and in the course of his employment and as such he was not liable for paying any compensation. The Commissioner held that the Respondent was a workman under the Workmen''s Compensation Act. The Commissioner also held that the injury to the workman arose by accident out of and in the course of employment and upon this finding, held that the Appellant was liable to pay compensation aforementioned.

In this appeal I find no difficulty in holding that the Respondent is a workman; therefore if the injury by accident arose out of and in the course of employment he would be entitled to compensation. By G.O. Ms, No. 3104, Development, dated 18th July, 1947 Clause XXVIII which reads as follows:

Employed for loading and unloading or in the handling or transport of goods which have been loaded in such vehicle.

was added to Schedule II of the Workmen''s Compensation Act. The Respondent was a person employed to load the lorry with the quarry material and unload it at the work site. He comes within the definition of the workman read with the above clause. The Appellant had to pay a sum of Rs. 2 per trip to each workman employed for loading and unloading trip. The payment is made to the worker and not to anyone else who had contracted with him. I have no hesitation in finding that the Respondent is a workman within the meaning of the Workmen''s Compensation Act. The only question which really arises in this appeal therefore is whether the accident which resulted in injury to the workman arises out of and in the course of employment. It is contended by the Appellant not without force that the Respondent-workman was employed to load the quarry material in the lorry and travel with the lorry and unload it at the work site. It was not part of the duties of a workman to hit a wild rabbit running across the road. His act does not arise out of the employment. It is not even connected in a casual manner with the work for which he is employed. On the other hand, the Learned Counsel for the Respondent urges that the workman was admittedly travelling in the lorry from the quarry site to the work site and the workman would not have met with the accident but for the fact that he was in the lorry. Though hitting a rabbit may not have been part of the duties of the workman, still the injury itself resulting in the death could not have occurred but for the fact that at the material point of time the workman was travelling in the lorry. What is contended is that though it may not be directly connected with the employment, still even the casual connection of the employment with the injury is sufficient to sustain a claim of compensation by the workman. In order to appreciate the contentions of the respective parties, it is necessary to examine the relevant provisions of Section 3 of the Workmen''s Compensation Act which is as follows:

If personal injury is caused to a workman by accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of this chapter:

Provided that the employer shall not be so liable--

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding (three) days ;

(b) in respect of any injury not resulting in death caused by an accident which is directly attributable to:

The workman having been at the time thereof under the influence of drink or drugs or,

The wilful disobedience of the workman to an order expressly given or to a rule expressly framed for the purpose of securing the safety of workman or....

The wilful removal or disregard by the workman of any safety-guard or other device he knew to have been provided for the purpose of securing the safety of workman.

From a reading of the above section, it is clear that while the employer shall be liable to pay compensation if personal injury is caused to the workman by an accident arising out of and in the course of employment, the employer shall not be liable for certain injuries which do not result in death, if the said injury does not result in the total or partial disablement of the workman for a period of three days, or which is directly attributable to any of the cause of Sub-clause (b) of proviso to Section 3. The proviso has therefore no application to the facts of this case as this is an injury which is caused by an accident resulting in death. The arguments addressed with reference to the proviso in my opinion have therefore no relevancy. The question that still remains to be considered is: when is the accident resulting in injury said to arise out of and in the course of employment and whether on the facts of this case the injury to the workman could be said to be the result of such an accident. The Learned Counsel for the Appellant in support of his contention that the injury ought to be held to be by an accident arising out of and in the course of employment relied upon the decision in Gouri Kinkar Bhakat Vs. Radha Kissen Cotton Mills, , in which it is held that if the injury was occasioned by an added peril which the workman brought about by interfering unnecessarily with a fenced off part of the machine while it was working he is not entitled to compensation, and also on the decision in Nawab Ali Vs. Hanuman Jute Mill, .

The question as to whether the accident arose out of the employment cannot be determined on any general view of facts. It is dependent on the facts of each particular case. There is one test which is always applicable. It is this: was it a part of the injured persons'' employment to hazard, to suffer or to do that which caused his injury ? If yes the accident arose out of his employment. If no, it did not, because what was not part of the employment to hazard, to suffer or to do cannot well be the cause of an accident arising out of the employment. And the question whether the workman did his duty negligently or not arises only where the workman was doing something which it was his duty to perform.

In the first case referred to above the workman concerned was employed as piece in a cotton mill and while he was standing by the machine and putting a bobbin on a spindle the bottom of his dhoti got caught between two rollers which were underneath the table of the machine and the two rollers pulled it in. He tried to pull the dothi out by putting his hand. In this attempt his hand got crushed. As the result of the injury his arm had to be amputated an inch or two below the shoulder. In considering this case Rankin, C.J., of the Calcutta High Court held that the duties of a piece do not include anything which requires his getting down underneath the table or interfering with the whin rollers while they are in motion, and on the facts of the case held that the story that he was merely standing by the machine when his dhoti was caught in the rollers was found to be impossible. He further held that the workman was trying to suppress something which he was doing which was altogether outside his function as a piece and on these facts found that it was a clear case in which the injury arose by reason of an added peril brought by the workman himself.

The principle however deducible from the said decision is that if the workman was responsible for an act unconnected with his duties and that resulted in the injury the employer is not liable. How far in particular circumstances of the said case the workman could be held disentitled to compensation is another matter. In Nawab Ali Vs. Hanuman Jute Mill, , the workman who was employed as a viceman of the fitter Roving Department of the Respondent mill received an injury when he put his hands inside the gearing box of the said Roving machine with the object of removing tools therefrom. The Respondent mill contended that in attempting to put his hands inside the gearing box of the machine while in motion, the workman took upon himself an added risk which it was no part of his employment to take. His duty being that of a viceman, it was no part of his duty to mend the machine when it goes out of order. The workman was therefore held not entitled to any compensation. Reference was also made to a decision of our High Court reported in Ravuri Kotayya Vs. Dasari Nagavaradhanamma and Others, . One of the principles upon which the right of workmen to compensation is held to be whether the immediate act which led to or resulted in the accident had some form of casual relation with the performance of these duties and such casual connection would be held to exist if the immediate act which led to the accident is not so remote from the sphere of his duties or the performance thereof as to be regarded as something foreign to them. A Full Bench judgment of the Assam High Court in Assam Railways and Trading Company, Ltd. v. Saraswati Devi AIR 1963 Ass 127 (F.B.) was also cited by the Learned Counsel for the Appellant wherein Dutta, J., at page 136 of the judgment held that there must be some nexus between the death and the work that the workman had to perform.

I may at this juncture refer to certain decisions cited by the Learned Counsel for the Respondent on the basis of which it was contended that it was enough if there was even a casual connection between the accident and the employment. Mr. Sastry, the Learned Counsel for the Respondent, places strong reliance on Bhagubai Vs. General Manager, Central Railway, V.T., Bombay, , in which the deceased was employed in the Central Railway at a station and he lived in the railway quarters adjoining the railway station. The deceased left the quarters few minutes before midnight in order to join duty through the only access available from the quarter to the station when he was stabbed by some unknown person. Their Lordships held that the workman was entitled to compensation. The facts of this case speak for themselves. The workman was going to join his duty from the quarters provided by the employer to the place where the workman had to discharge his duties prescribed by the employer along the route which was the only route available. If he was going elsewhere than to his duty, then the workman would not have been heard to say that his walking across the only route available was in the course of employment. But in that case it was only for the purpose of joining his duty that he had left the quarters and was using the only access available to the station. In order to discharge his duties he had to stay in the quarters provided by the employer and must necessarily walk down to the station along the only passage available and as such it would amount to a duty being discharged in the course of employment. The said decision itself approves the principle, laid down in Simpson v. Sinclair L.R. (1917) A.C. 127, reference to which would be made hereinafter. Reliance was also placed by the Respondent''s Counsel on Vishram Yesu Haldankar v. Dadabhoy Hormasji & Company AIR 1942 Bom. 175, in which a workman engaged on a barge and required to prepare meals and take them and sleep on the hatches, accidentally fell into the water and died as a result of drowning. This case also is a case in which a part of his duties as a Khalasi, the workman was required to prepare his meals and take them on the barge and also sleep in the barge, During the sleep he fell off the barge and struck his head in the process. If it was no part of his duty to stay on the barge or sleep and if the workman after completing his duty as a Khalasi, continued of his own accord there and slept on the barge, it could not be contended that he met with the accident in the course of employment. On the facts and in the circumstances there could be no finding other than that the accident arose out of and in the course of employment. In another case of Bombay High Court i.e. Mohanlal Prabhuram Vs. Fine Knitting Mills Co. Ltd., , the workman while engaged in carrying out day to day duties at his employer''s mill was a helpless victim of an assault by a fellow workman, Naik, J., held that when a workman in the course of employment was assaulted by another worker and the workman who received the injury did not in any way contribute to this attack, it must be held to be a case where the injuries suffered by the workman were incidental to his employment, and that there was casual connection between the accident and employment; and consequently the accident must be taken to have arisen out of the employment. This decision also in my opinion does not help the workman in the present case. It was a case where dispute arising between the two workmen resulted in the injury during the period of their employment. Dispute between the workmen themselves are something connected with the employment. Though not direct there is at least an incidental and casual connection of the dispute with the employment and the resultant injury that might be sustained in such a dispute.

Having bestowed my careful consideration to the abovesaid ruling and also the decisions cited on behalf the Respondent, I am of the view that the Workmen''s Compensation Act does not lay down that in case of any injury sustained by a workman the employer should be necessarily made liable. The mere fact that the injury was sustained during the hours of work and at the place of employment is not sufficient to make the employer liable. The injury that is caused should have some connection with the nature of the duties which the workman is entrusted with. As pointed out in Simpson v. Sinclair L.R. (1917) A.C. 127, the expression ''arising out of employment'' is not confined to the mere nature of employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by any of these the workman is brought within the zone of special danger and so injured or killed it appears that the broad words of the statute arising out of the employment apply. These words imply that the nature of the duties attached to the work for which the workman is employed itself should be of such a nature as to bring the workman within the zone of special danger in which event alone could the injury be said to arise out of employment. The question that should be considered is whether the workman was required or expected to do the thing which resulted in the accident though he might have imprudently or disobediently done the same. To put it in other words, was the act which resulted in the injury so outside the scope of the duties with which the workman was entrusted by his employer as to say that the accident did not arise out of his employment. In Charles R. Davidson & Company v. M. Robb L.R. (1918) A.C. 304, Viscount Haldane, J., observed:

In order to come within the statute an accident must not only occur in the course of, that is to say, during actual employment but in addition must arise out of it. In other words there is required to be shown something in the nature of a casual relation between the accident and an order, express or implied given by the employer.

Lord Dunedin, J., in the same case held:

The words ''and in the course of are meant in some way either to qualify or further explain the words ''out of My own view is that they do the latter. It is in one sense difficult to imagine that there could be any injury held as arising out of the employment which would not also be in the course of the employment. But it may well be that the determination of the question whether at the moment of the injury the workman was in the course of his employment may go to solve the question of whether the injury arose out of the employment.

He further observed:

In my view in the course of employment is a different thing from during the period of employment. It connotes in my mind, the idea that the workman or servant is during something which is part of his service to his employer or master. No doubt it need not be actual work but it must I think be work or the natural incidents, connected with the class of work e.g., in the workmen''s case the taking of meals during the hours of labour, in the servant''s not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master''s roof.

In this connection I may usefully refer to the decision in Barnes v. Nunnery Colliery Co, Ltd. L.R. (1912) A.C.44, where it was held that if the added peril to which the deceased exposed himself was by his own conduct and not by reason of any peril involved by his contract of service, the case is taken out of the scope of the section. In Craske v. Wigan L.R. (1909) 2 K.B. 635, the Master of the Rolls pointed out:

It is not enough for the Applicant to say according to this decision that the accident would not have happened if I had not been engaged in that employment or if I had not been in that particular place.'' He must go further and be in a position to say ''the accident arose because of something I was doing in the course of my employment or because I was exposed by the nature of my employment to some peculiar danger.

What is deducible from the above decisions is that it is not enough that injury should have been sustained by the workman during the period of his employment; it should have been in the course of the employment. The act which resulted in the accident must have some connection with the work for which the workman is employed. Such connection need not be direct. It may be incidental to the duties attached to the work for which he is employed. There should be at least a casual relation between the accident and the duties which he is required to perform by the employer. The act should not be foreign to the employment. The peril which results in injury must be involved by the contract of service, and not alien to it. The workman must have been doing something which is part of his service, though it need not be his actual work; it would be work naturally connected with the class of work and the injury must result from it. There should be nexus between the injury and the work that the workman had to perform. Applying these principles to the facts of this case, by no stretch of imagination can it be said that hitting a wild rabbit which ran across the track was part of his service as a workman for which he was employed. It was not even remotely connected with the class of work for which he was engaged, nor could it be said to be a work naturally incidental to the class of work for which he is employed. For the efficient or proper discharge of the duties entrusted to him by the employer it was not necessary for him to hit at rabbits. It is not the case of the workman that while travelling in the truck the employer had asked him to hit at rabbits that ran across the truck. The benefit, if any, derived from catching or killing such rabbits would not go to the employer. The act of hitting at a rabbit while the truck was in motion was wholly unconnected with the duties of workman. The mere fact that the Respondent workman was during the particular period travelling in the employer''s truck with the quarry material from the quarry site to the work site is not enough. The, act which resulted in the injury must have been by an accident arising out of and in the course of the employment. In that view of the matter I am constrained to hold on the facts and circumstances of this case that the injury caused by the accident to the Respondent cannot be said to arise out of and in the course of employment. It has not even a casual connection with the employment which is what is required to be established even according to the decisions cited by the Learned Counsel for the Respondent. The injury in this case which resulted in death is wholly unconnected with the duties with which the workman was entrusted. I therefore hold that the Respondent is not entitled to compensation. However at the conclusion of the arguments it was stated by the Respondent that even under the interim orders of this Court the Appellant had deposited the entire sum and the Respondent has withdrawn half of that. The Appellant has filed an undertaking before me that he would not claim a refund of the said amount from the Respondent. In view of the above the appeal is partly allowed and the order of the Commissioner is varied and the Respondent workman declared entitled to half the sum awarded by the Commissioner. The decree in regard to the half of the amount is set aside. Having regard to the facts of the case I order that each of the parties shall bear his own costs.