New India Assurance Company Ltd. VsManju Malakar

Deepak Gupta, C.J.—This appeal by the insurance company is directed against the award dated 8.1.2008 delivered by the learned Commissioner, Workmen''s Compensation, West Tripura, Agartala whereby he allowed the petition under section 4 of the Workmen''s Compensation Act, 1923 and held the insurance company liable to pay compensation amounting to Rs. 2,67,240 and the owner liable to pay interest @ 12% per annum. The owner has not filed any appeal and the appeal has been filed by the insurance company. The appeal was admitted on 22.1.2009 but no substantial question of law was framed at the time of admission of the appeal. In my opinion the only question of law which arises is whether the death/abduction of the deceased could be said to be an accident within the meaning of the Workmen''s Compensation Act, 1923.

The claimants are the parents of deceased Pradip Malakar who was engaged as a driver with Tata Sumo vehicle bearing registration No. TR-01-0045 owned by Smt. Gita Deb Barma. He was employed as a driver in the said vehicle. On 1.9.1998 the deceased took the vehicle towards Agartala. Two tribal youth hired the vehicle at Agartala Motor stand to take it to Bagbasa. The deceased took the vehicle, towards Bagbasa. On the way at Chakmaghat a third tribal youth boarded the vehicle. Thereafter the vehicle was never traced out and neither the vehicle nor the driver Pradip Malakar have been traced out. The case of the claimants was that the deceased must have been abducted and killed by the youth for stealing the vehicle in question. Entry with regard to the incident was recorded in the G.D. Entry Book of Kamalpur Police Station vide G.D. Entry No. 66 dated 2.9.1998. Death certificate was also issued with regard to the death of deceased Pradip Malakar on 20th January, 2003 and on the basis of this death certificate survivorship certificate has been issued in favour of the parents on 14.5.2003.

It has been urged by Sri P. Gautam that there is no proof that the deceased has been murdered. In the alternative, he submits that the mere abduction of the deceased is not sufficient to prove that he has been killed. Lastly, he submits that assuming for the sake of argument that the deceased was murdered then also this does not amount to an accident within the meaning of Section 3 of the Workmen''s Compensation Act, 1923.

The contention of Mr. P. Gautam, learned counsel for the insurance company, is that there was no accident since the deceased was kidnapped and that this kidnapping was not attributable to the employment of the deceased. The law is well-settled that the expression "arising out of the employment" means that there must be a causal connection between the accident and the employment. If the accident has occurred on account of a risk which is incidental to the nature of employment it must be held that the accident has arisen out of the employment. The words "arising out of the employment" apply to the nature, conditions and obligations of employment. A driver is supposed to drive a vehicle and is supposed to do the duty which is given to him by his employer. If during the course of his duty, while he was performing the said duty, he is killed by somebody then the occurrence has occurred during the course of employment and the same is directly attributable to the employment. A poor employee has to follow the dictates of the employer. There was widespread extremism in Tripura in those days. When the employer directs the employee to go to such terrorist infested area then the employer knows that there are chances that the employee may be the victim of such extremist violence. By no stretch of imagination can it be said that the employee was guilty in the discharge of his duties? This killing is an accident within the meaning of the Workmen''s Compensation Act, 1923.

In this view of the matter, the appeal is dismissed and the New India Assurance Co. Ltd. is directed to pay the awarded amount i.e. Rs. 2,67,240 in the Registry of this Court within four months from today. The appeal is disposed of in the aforesaid terms. No order as to costs. Send down the lower court records forthwith.