Sundaresa Mudaliar vs Muthammal

Ramaswami, J.—This is an appeal preferred against the order made by the Additional Commissioner for Workmen''s Compensation,

Madras, in W.C. Case No. 747 of 1953.

The facts are: The deceased Murugan was employed as a motor-driver under Sri Sundaresa Mudaliar. This Sundaresa Mudaliar--besides

owning three motor cars, had also 7 or 8 motor pump sets in Mallamo-oppanampatti and elsewhere, for irrigating his lands. On 10 May 1953 this

Murugan accompanied by another employee of this Sundaresa Mudaliar, viz., David, went to Mallamo-oppanampatti to repair a motor pump set

which had gone out of order. David got into the well first and the deceased Murugan went next to him and in the act of getting into the well

steadied himself by getting hold of a twig which unfortunately gave way with the result that the deceased fell into the well head downwards and

injured his head and as a result thereof died the next day. The wife of that Murugan filed this application for compensation under the Workmen''s

Compensation Act and has been awarded a sum of Rs. 1,500. The defeated Sundaresa Mudaliar, the employer, appeals.

The case for this Sundaresa Mudaliar both before the Additional Commissioner for Workmen''s Compensation as well as here is that the

applicant has not proved that the accident resulting in the injury which proved fatal to Murugan arose in the course of and arising out of his

employment and that the fatal accident was brought about as a result of the gross contributory negligence of this Murugan. Therefore, the points for

determination are threefold, viz., whether the compensable fatal injury arose out of an accident in the course of and arising out of Murugan''s

employment; secondly, whether the applicant has discharged the onus lying on her; and thirdly, whether any gross negligence or carelessness on the

part of the deceased Murugan would make this fatal accident any the less compensable.

The terms ""injury"" and ""personal injury"" as used in the Workmen''s Compensation Act are ordinarily construed as meaning any lesion or change

in the structure of the body, causing harm thereto and a lessened facility of its natural and normal use. But it is not essential that the disorder be of

such a character as to present external or visible signs of its existence [58 Am. Jur. Section 194]. In other words, the term ""injury'''' is as used in

the phrases ""personal injury or death accidentally sustained"" means not only an injury, the means or cause of which is an accident, but also an injury

which is itself an accident; that is, an injury occurring unexpectedly from the operation of internal or subjective conditions, without the prior

occurrence of any external event of an accidental character (ibid., Section 195).

The term ""accident"" is interpreted under the Workmen''s Compensation Act in the popular and ordinary sense as having a wide signification. It is

to be construed liberally in favour of the workmen Chillu Kahar Vs. Burn and Co. Ltd., Howrah, . It generally means an occurrence which is

neither expected, designed nor intentionally caused, by the workman, in contradistinction to the expression ""willful misconduct,"" which is found

ordinarily in the same statute. While the concept of accident is ordinarily understood as embodying a certain degree or element of suddenness in

the occurrence of the event, it is not always required that the occurrence be instantaneous. The term �fortuitous event"" as descriptive of the

cause of injury, is more comprehensive than the word ""accident"" [58 Am. Jur. Section 196; Clover Clayton & Co. v. Hughes 1910 A.C. 242;

Trim Joint School v. Kelly 1914 A.C. 667; Fenton v. Thorley & Co. 1903 A. C. 443; Warner and Couchman 1912 A.C. 35; Glasgow Coal Co.

Ltd. v. Welsh 8 B.W.C.C. 635; Padam Debi Vs. Raghunath Ray, ; AIR 1937 311 (Nagpur); Laxmibai Atmaram Vs. Chairman and Trustees,

Bombay Port Trust, .

In considering the meaning of the complete expression ""arising out of and in the course of the employment"" and of it separate component parts,

as used in the Workmen''s Compensation Act, it is to be observed that while an accident arising out of an employment usually occurs in the course

of it, it does not necessarily or invariably do so. An accident which occurs in the course of an employment does not necessarily arise out of it. The

words �arising out of �involve the idea of causal relationship between the employment and the injury, while the term ""in the course of"" relates

more particularly to the time, place and circumstances under which the injury occurred. The phrases are therefore not synonymous, and it is held,

accordingly, that where both are used conjunctively a double condition has been imposed, both terms of which must be satisfied in order to bring a

case within the Act Becharam Mallik Vs. Khas Joyrampur Colliery, ; Burma Oil Co. Ltd. v. Mayin AIR 1935 Rang. 428; Trustees of the Port of

Bombay Vs. Yamunabai, ; Khan of v. Natardin AIR 1940 Rang. 250; AIR 1937 311 (Nagpur); Central Glass Industries Ltd. Vs. Abdul Hossain,

; Parabi Bibi and Others Vs. Birendra Nath Sarkar and Others, ; AIR 1937 397 (Nagpur) ; Leeshi v. Consolidated Mines AIR 1939 Rang. 428;

Rawa Brahman v. Traffic Manager AIR 1943 Mad. 353; Munsi & Co. v. Tukaram AIR 1918 Bom. 44; Tobacco Manufactures (India) Ltd. Vs.

Mrs. Marian Stewart, ; National Iron and Steel Co. Ltd. Vs. Monorama Dassi, ; Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port

Trust, ; Bhagubai v. Central Railway, Bombay 56 Bom. L.R. 509 : 1954 II L.L.J. 403; Indian News Chronicles, Ltd. v. Lazarus: AIR 1951 P.&h.

102; Rani Bala Seth Vs. East Indian Rly., .

In this case we have to construe particularly the phrase ""arising out of"" because this Murugan employed as a motor driver sustained a fatal injury

in the course of repairing his master''s motor pump set. Did this arise out of his employment?

The English Courts, in construing the meaning of the words ""arising out of"" and ""in the course of the employment,"" have held that these words

are of inexhaustible variety of application according to the nature of the employment and the character of the facts proved and have led to

numerous judicial decisions. Speaking broadly, the accident must arise from a risk reasonably incidental to the work which it is the duty of the

workman to perform, giving (the statute being remedial) a wide and liberal interpretation to the word ""duty"" and whilst the workman is engaged

about that employment and not acting outside the scope of the employment, and the accident must have arisen when the relationship of employer

and workman can reasonably be held to have been subsisting. There is no difference as pointed out in Becharam Mallik Vs. Khas Joyrampur

Colliery, , between the English and Indian statutes as to the type of accident which gives the workman a claim to compensation.

Owing to the variety of points that have come before the courts for decision, in the standard text-books like Ruegg''s Workmen''s

Compensation Act and A. N. Aiyar''s Encyclopaedia of Labour Laws and Industrial Legislation in India Vol. 4, this subject has been divided into

several headings in regard to which we are concerned here only with the meaning of ""scope or sphere of employment.

It is now settled law that in considering whether a workman is at the time of the accident engaged in work which it is his duty to perform, a

liberal interpretation should be given to the word ""duty."" Lord Dunedin in Plumb case held that the sphere must be determined upon a general view

of he nature of the employment and its duties. The general principle is whether there has been any willful breach of an express prohibition. If the

workman is injured while doing work which, although not strictly the work required of him by the terms of his contract, is yet such as a reasonable

employer had he been present would reasonably be expected to acquiesce in the workman performing in the special circumstances (although

strictly not an emergency) and if such work is for the employer''s benefit, and such as the workman is competent to perform, then the workman in

such a case is not outside the scope or sphere of his employment, and is within the protection of the Act. In other words, was it part of the injured

person''s employment to hazard, to suffer or to do that which caused part of his injury--another way of asking whether it was part of his

employment that the workman should have acted as he was acting or should have been in the position in which he was whereby in the course of his

employment he sustained that injury [Lancashire and Yorkshire & Co. v. Highley 1917 A.C. 352 ; Upton v. Great Central Railway 1924 A.C.

302; Halsbury, Vol. 34, Para. 1161 (Hailsham edn.); Ruega, Ch. VII, p. 79 and foll; A.N. Aiyar. Encyclopaedia, Vol, IV, p. 47 and foll; and 58

Am. Jur. Section 210], similarly, where the workman is acting in accordance with the orders of some person in authority, he may be within the Act,

although his act would otherwise be outside the scope of the employment. In Risdale v. Kilmarnoock: (1915) 1 E.B. 503, Cozens Hardy, M.R.

observed:

If a person is put over a subordinate employee, that employee is not at liberty in matters within the scope of the employment of the subordinate, to

disobey orders given to him by the superior and we cannot encourage any argument that if in these circumstances an accident arises, the employer

is not liable.

In such circumstances where the injury was sustained while the workman was engaged in the furtherance of the employer''s business and which fell

also within the scope of his employment, it would be a case of an accident arising in the course of and out of his employment.

The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose out of and in the course of the

employment is said to rest upon the claimant and an award which is based upon mere surmises or conjecture will be set aside. But the facts may be

shown with sufficient certainty, however, by circumstantial evidence. It is enough, however, to establish a state of facts which leads one to think

that the applicant''s version is a Quite possible version of what took place, because he must do something more than show a state of facts which is

consistent either with one view or with another. But at the same time the applicant is not required to demonstrate his case or exclude by evidence

every possibility that may be suggested. If the more probable conclusion is that for which the applicant contends and there is anything pointing to it,

then there is evidence for the Court to act upon [Barnabas v. Bersham Colliery (1910) 4 B.W.C.C. 119, a decision of House of Lords; Kerr v.

Ayr Steam Shipping Co. 1955 A.C. 217 : 7 B.W.C.C. 801; Marshall v. Swild Rose Cordners, J., 1910 A.C. 486; Evans v. Astley 1911 A.C.

674; Hayward v. Sestleigh Colliery Co. 1915 A.C. 540,

The question of contributory negligence does not arise because under the proviso to Section 3 of the Workmen''s Compensation Act, which

protects employers in the case of willful disobedience, etc., does not apply where the accident has resulted in death. In fact, the doctrine of

contributory negligence has no place under the Workmen''s Compensation Act. [Bhutnath v. Mistry A.I.R 1949 Cal. 295; Tiku Kahar Vs.

Equitable Coal Co. Ltd., ; Allabaksh v. Mian Muhammad AIR 1935 Lah. 670; AIR 1937 311 (Nagpur) ; Urmila Dasi v. Tata AIR 1928 Nag.

508; Lancashire and Yorkshire Railway Co. v. Highley 1917 A.C. 352 . Because, first of all mere negligence or carelessness would not be

regarded as a willful disobedience, i.e., deliberate and intended as opposed to a thoughtless act on the spur of the moment by the workman of an

order expressly given saving the employer from liability u/s 3(1) and which requires the concurrence of seven conditions laid down in Tiku Kahar

Vs. Equitable Coal Co. Ltd., : Urmila Dasi and Another Vs. Tata Iron Steel Co. Ltd., ; Johnson and Marshall: 1906 A.C. 409 : 1953 M.L.J. 625

-- defence of willful disobedience]; and secondly the doctrine of contributory negligence a good defence in common law has been abrogated in so

far as the Work-men''s Compensation Act is concerned.''The reasons are said to be twofold, viz. that compensation is not a remedy for negligence

on the employer but it is rather in the nature of an insurance of the workman against certain risks of accident [Secretary of State v. Geeta AIR

1938 Nag. 91; Upton v. Great Central Railway 1924 A.C. 302]. In fact, the risk of compensation for all accidents is looked upon as one of the

charges upon the trade in which it is incurred and is supposed to be as much part of the cost of producing the article as, for instance, insurance

against fire or even cost of materials. Secondly, contributory negligence was abrogated because this was made an excuse for avoiding all liability,

because most negligence are practically accidents in the nature of what is called the act of God. Men who are employed to work in factories and

elsewhere are human beings, not machines. They are subject to human imperfections. No man can be expected to work without ever allowing his

attention to wander, without ever making a mistake, or slip, without at Borne period in his career being momentarily careless. Imperfections of this

and the like nature form the ordinary hazards of employment, and bring a case of this kind within the meaning of the Act AIR 1937 311 (Nagpur) ;

Lancashire and Yorkshire v. Highley 1917 A.C. 352].

Bearing these principles in mind, if we examine the facts of this case, we find that the deceased Murugan was a workman within the meaning of

the Workmen''s Compensation Act and that he died as a result of a personal injury by an accident sustained by him on 10 May 1953. It cannot be

doubted also that this accident arose in the course of and out of his employment. Though he was specifically employed as a driver by reason of an

understanding with his master, he was also to keep an eye upon the motor pump sets and effect minor repairs. In fact, it is within our common

knowledge that motor-drivers in our houses are also asked by us to attend to the minor breakdowns of electric appliances in our houses. In other

words, attending to all this motor pump sets though not strictly within the scope of a motor-driver''s employment, was being attended to in

furtherance of the master''s business. This has been proved by the evidence in this case of Dhanasekharan, the co-worker, as well as circumstantial

evidence. It stands to commonsense that unless this deceased Murugan had been so employed before he would not have on that morning during

hours of work gone to Mallamooppa-panampatti from Sooramangalam and started to repair the pump set by getting into the well. The suggestion

put forward by the learned advocate Mr. Kailasam that this Murugan took upon himself this wholly supererogatory task without his master''s

knowledge and against his prohibition on account of an inordinate desire to fiddle with the machinery on the part of this Murugan cannot be

accepted. Ordinary course ,of human conduct of our servants shows they would not take upon themselves such extra work either without

authorization or against any specific prohibition, but merely from a love of work and from which he derived no advantage. There is no evidence

contra except that of another employee of this Sundaresa Mudaliar by name Krishnamoorthi whose evidence that the deceased against the express

instructions of his master must have gone there of his own accord in order to fiddle with the pump set was not accepted by the learned Additional

Commissioner as interested testimony. Therefore, it has been affirmatively proved by the applicant through the testimony of Dhanasekharan and the

circumstantial evidence that this Murugan sustained the personal injury as a result of an accident arising in the course of and out of his employment

under this Sundaresa Mudaliar.

The alleged contributory negligence of Murugan is neither here nor there, because when the accident arising out of and in the course of his

employment has resulted in a fatal termination, even willful disobedience, etc., involving conduct of a quasi-criminal nature and the intention of

doing something with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of the probable consequences

and which state of mind is the very opposite of the mental state imported by the word ""accident,"" would not constitute a defence to the employer

under the proviso to Section 3 of the Workmen''s Compensation Act [Padam Debi v. Raghunath Rai AIR 1950 Orissa 207 and also AIR 1939

Rang. 428 : ILR 1938 Nag. 200 : ILR 1944 Mad. 29 and (1909) 2 K.B. 539, cited with approval in ILR 1944 Mad. 61 . Therefore, there are no

grounds on merits to interfere with the conclusion of the learned Additional Commissioner.

I must however point out that the scope of an appeal u/s 30 of the Workmen''s Compensation Act is limited and no appeal can lie against any

order unless a substantial question of law is involved in the appeal. I may add that a finding of the Commissioner based upon no evidence or

opposed to the evidence on which he could base a finding'' that the accident occurred out of the employment of the workman is a question of law

which the High Court can determine Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, ; Jaten Nath v. Sardha, 58 C.W.N. 591;

Parakkandiyil Kutti and Another Vs. Kakkat Kunhammad and Others, . It is on that allegation that the findings of fact of the Commissioner are so

incorrect, so opposed to evidence and so perverse as to be brought into the category of a question of law that I have gone into the merits of this

appeal. This is not a case where the learned Additional Commissioner who is charged with the duty of finding facts has merely lifted propositions in

the statute itself and put them either in the affirmative or in the negative as his findings. On the other hand, as has been pointed out above, the

findings have been given based upon necessary facts and the conclusions are irreproachable. It is unnecessary therefore to consider in this case the

conflict of opinions held by the Calcutta High Court in Central Glass Industries Ltd. v. Hussain AIR 1946 Cal. 12 and Gouri Kinkar Bhakat Vs.

Radha Kissen Cotton Mills, , on the one hand and the other High Courts on the other, viz., the former holding that if a substantial question of law is

involved and once that condition is satisfied, the High Court is entitled to consider the whole case and for that purpose to review the evidence on

the record and to decide questions of fact though with respect it appears to me that the Calcutta view does not seem to be the correct view not

being warranted by the clear language of the proviso to Section 30 of the Workmen''s Compensation Act.

In the result, the appeal is dismissed with costs.