Sarat Chatterjee and Company vs Khairunnessa

P.N. Mookerjee, J.—This appeal is by the employer and it arises out of a proceeding for compensation claimed by or on behalf of the heirs and legal representatives of a deceased employee or workman under the Workmen''s Compensation Act.

Shortly stated, the relevant facts are as follows: The Respondent''s husband Alauddin was a rating booked by the Appellant company for work on S.S. City of Barcelona. While proceeding by a boat for boarding the vessel in the midstream along with other ratings of the gang, he accidentally fell into the river due to a certain jerk of the boat which dashed against the ship and was drowned on September 2, 1954. Compensation is claimed on the footing that the workman concerned, namely the Respondent''s husband Alauddin, died in the above accident arising out of and in the course of his employment.

The Respondent''s claim was contested by the Appellant whose principal defence or objection was that the deceased was not under its employment and that the accident, if any, was not one arising out of and in the course of the deceased''s employment under the Appellant even assuming that he was, at the relevant time, under such employment.

The learned Commissioner overruled the Appellant''s objections and passed an award in favour of the Respondent for Rs. 3,000 to be distributed amongst the heirs and legal representatives of the deceased workman.

Against this award the present appeal was filed by the Appellant and the two points which were strenuously urged by Mr. Mukherjee in support of this appeal, are (i) that there was, strictly speaking, no proof of death of Alauddin and the evidence on the point was highly conflicting and wholly insufficient to justify a finding of death and (ii) that, even if Alauddin had died, in the facts of the instant case, he could not be said to have died as a result of an accident arising out of and in the course of his employment under the Appellant.

In our view, on the evidence on record and in the facts of this case and on the state of law, as prevailing in this country, none of the above contentions would be acceptable.

So far as the first point is concerned, the position is clear that, although there is some evidence to the contrary and although, even amongst the witnesses examined by the Respondent applicant in the Court below in support of her case that Alauddin had died in the accident in question, there was some contradiction, the overall position seems to be that Alauddin was drowned in the river and, thereafter, he was not traced. From these facts a Court of fact is entitled to draw the inference and come to the conclusion that Alauddin died as a result of the above accident. That has been done by the learned Commissioner and, in our view, quite rightly, although even otherwise his finding on this question of fact on the state of the evidence on record would not really have been challengeable before this appellate Court as it would not necessarily have been perverse.

On the second question, the position may be viewed from two points of view. In the first place, the evidence discloses that Alauddin slipped from the chain by which he was to go over to the ship from the boat. It may very well be argued, therefore, that he, was really in touch with the ship, which was his place of work, and accordingly he died as a result of accident in the employer''s premises so as to attract the rule of an accident arising out of and in the course of employment. In the second place, it appears from the evidence that the boat by which Alauddin was traveling to the ship was one requisitioned or hired by the employer for taking the gang in question to the ship and that he actually went to the boat under the orders of the Appellant''s dock foreman or supervisor. This will appear from the cross examination of the witness for the employer opposite party whose relevant statement is in these terms:

Those men of Ganga who report in time are ordered by dock foreman to proceed to the vessel by boats hired by the company.

It is significant that the expression used by this witness, who is the dock foreman, is ''ordered''. This, under the Standing Order, Rule16(c), would have to be carried out by the workman concerned, otherwise he would be guilty of breach of discipline or of the terms of employment. That Rule 16(c)] stands in these terms:

All such workers who are available for work when allocated by the Administrative Officer for employment under a registered employer are to carry out their duties in accordance with the directions of such registered employer and the rules of the port or place in which they are working. It is also to be seen that, under Clause 29(5) read with Clause 29(1) of the relevant scheme, namely the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951, Alauddin, in the facts of this case, had to work and was under legal obligation to work according to the directions of the registered employer. That he was under the employment of the Appellant, as the registered employer concerned, is clear from a combined reading of the three provisions, Clause 29(2), 29(3) and 29(5) quoted hereinbelow:

29(2). A registered dock worker in the Reserve Pool who ; is available for work shall be deemed to be in the employment of the Board-29(3). A registered dock worker who is available for work shall not engaged himself for employment under a registered employer unless he is allocated to that employer by the Administrative Body.

29(5). A registered dock worker who is available for work, when allocated by the Administrative Body for employment under a registered employer shall carry out his duties in accordance with the directions of such registered employer and the rules of the port or place where he is working.

In the former case [Clause 29(2)] the workman concerned is to be deemed to be in the employment of the Board; in the latter case [Clause 29(3), read with Clause 29(5)] he is to be deemed to be in the employment of the particular employer to whom he is allocated and must carry out his directions. It is clear, therefore, that while carrying out the direction or order of the dock foreman in charge, Alauddin was really acting in the course of his employment under the Appellant and the accident in question, therefore, must be held to have happened or occurred out of and in the course of his employment under the Appellant.

There is a third point of view from which, also, the same result would follow. Mr. Mukherjee has drawn our attention to the English decision reported in St. Helens Colliery Company Limited and Hewitson (1924) A.C. 59 for the purpose of supporting his argument that, until the deceased workman reached the vessel or his actual place of work, he could not claim to have been in the employment of or under the Appellant employer, so as to be entitled to get the benefit of the rule of death arising out of and in the course of the employment. The relative law, however, so far as this contrary is concerned, has been explained by their Lordships of the Supreme Court in General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes, after considering the above English decision and, in the language of their Lordships, a case of theoretical option but practical compulsion would be excepted from the rigors of the above rule. In the instant case, even assuming that there was theoretical option on the part of Alauddin to refuse to travel by the particular boat requisitioned or hired by his employer, as aforesaid, the circumstances were such that it was a case of practical compulsion as he could not have done so without prejudice to his employment. Judged from this point of view, also, the death in the instant case must be held to have occurred out of and in the course of employment under the Appellant. From this point of view too, the claim of the Respondent be supportable.

In the premises, this appeal would fail and it will be dismissed.

In the circumstances of this raise, however, we would make no order for costs in this Court.

Amiya K. Mookerji, J.

I agree.