Union of India (UOI) and Another vs Afzal Hussain and Another

Anil Kumar, J.—Matter is taken in revised cause list.

None appeared on behalf of the respondents.

Heard Sri Anil Srivastava, learned Counsel for the appellant.

In the present case, the appellant has filed an appeal u/s 30 of the Workmen''s Compensation Act, 1923 against the impugned judgment and award dated 7.6.2002 passed in Case No. W.C. No. 19 of 1998 by the Court of Workmen''s Compensation Commissioner and Assistant Labour Commissioner, U.P., Lucknow.

In brief, the facts of the present case are that Sri Safdar Hussain, who was working on the post of Diesel Assistant in Diesel Shed, Northern Railways, Alambagh, Lucknow. On 2.10.1997 at about 12.00 noon while he was discharging his duties in ticket section of Diesel Shed Lucknow, one Sri Dhirendra Singh son of Sri Hari Ram Singh working on the post of Substitute Cleaner had quarreled with him in regard to making the railway pass. When he refused to act as per wishes of the said persion, he alongwith his friend had entered into the Ticket Section where Sri Safdar Hussain was discharging his duties, beaten him as a result of which he sustained injuries. Later on he was admitted in Gandhi Memorial and Associated Hospital, K.G.M.C., Lucknow, died on the same day.

Accordingly, a claim petition under Workmen''s Compensation Act, 1923 (hereinafter referred to as an ''Act'') was filed by Sri Afzal Hussain and Smt. Kulsum Jaan, the father and mother of the deceased Sri Safdar Hussain against the appellants registered as W.C. No. 19 of 1998, Sri Afzal Hussain and Anr. v. Union of India and Anr. allowed vide judgment dated 7.6.2002 and a compensation to the tune of Rs. 2,07,980/ - awarded in favour of the claimants

Aggrieved by the order dated 7.6.2002 passed by the Workmen''s Compensation Commissioner and Assistant Labour Commissioner, Uttar Pradesh, Lucknow in W.C. No. 19 of 1998, the present appeal has been filed by the appellant u/s 30 of the Act.

Sri Anil Srivastava, learned Counsel for the appellant has assailed the judgment under challenge on the following grounds:

(a) The deceased Safdar Hussain was assaulted by another employee who was intoxicated state due to reasons not connected with his employment, as such, the claim under workmen''s Compensation Act was not maintainable but the learned Commissioner below gave a contrary finding which has resulted in miscarriage of justice.

(b) An F.I.R. regarding the incident u/s 323 and 504 I.P.C. was duly lodged and a case against the accused who assaulted the deceased was also pending before the Criminal Court for murder u/s 302 IPC, as such, the claim by the respondents/ claimants was not maintainable before the Workmen''s Compensation Commissioner under Workmen''s Compensation Act.

(c) As per Section 2(1)(d)(iii)(b), the claimants/ respondents were not entitled to any compensation but the learned Commissioner below passed the illegal award against the aforesaid provisions.

I have heard the learned Counsel for the appellant and perused the record.

The Workmen''s Compensation Act is welfare legislation and its object is that the compensation for injuries or death sustained by the workman be paid to him or his family members without any delay. If he is entitled under the provisions of the Act. As a workman belongs to the humble class of the Society and the object is that claims relating to injuries suffered by him or on his death to his heirs in the course of employment be paid with expedition. Section 3 of the Act deals with the employers liability for compensation. The relevant portion of the same is quoter hereunder:

Employer''s liability for compensation- (1) If personal injury is caused to a workman by accident arising out of and and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter.

Accordingly, the employer is liable to pay a compensation to his workman in the case of injuries which he has sustained or to his family members eligible under the Act. For the same, in case of his death/ his accident in which workman sustain injury/death come within the ambit and scope of the Act (both out of and in the course of employment). The said fact has been examined by Hon''ble Supreme Court in the case of Mackinnon Mackenzie and Co. (P) Ltd. Vs. Ibrahim Mahmmed Issak, wherein it has been held as under:

To come within the Act the injury by accident must arise both out of and in the course, of employment. The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it." The words "arising out of employment" are understood to mean that "during the course, of the employment, injury has resulted from some risk incidental to the duties of the service, which unless engaged in the duty owing to the master, it is reasonable 873 to believe the workman would not otherwise have suffered." In other words there must be a causal relationship between the accident and the employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of these factors the workman is brought within the scene of special danger the injury would be one which arises ''out of employment''. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Railway Co. v. Highley Lord Sumner laid down the following test for determining whether an accident "arose out of the employment:

There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured person''s employment to hazard, to suffer, or to do that which caused his injury?

If yea, the accident arose out of his employment. If nay, it did not, because, what it 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. To ask if the cause of the was within the sphere of the employment, or was one of the ordinary risks of the employment or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a 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 that employment he sustained injury.

In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to court for relief must necessarily prove: it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to. lay down any rule as to the degree of (1) [1917] A.C. 352. 874 proof which is sufficient to justify an inference being drawn, but'' the evidence must be such as would induce a reasonable man to draw it. Lord Birkenhead L.C. In Lancaster v. Blackwell Colliery Co. Ltd., (1) observed:

If the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour.

Section 4(1)(c) of the Act provides that which amount of compensation which is payable where the death is occurred to an employee/workmen due to injury which he sustained during the course of employment and Section 4(1)(b) provides in respect to the what amount payable by way of compensation where the permanent total disablement results from the injury.

Now reverting to the facts to the present case admittedly Sri Sadar Hussain was an employee/workman, working on the post of Diesel Assistant in Diesel Shed of the appellant situate in Alambagh Lucknow and on 2.10.1997 while he was discharging his duty in Ticket Section assaulted by one of the employee Sri Dhirrendra Singh and his friends, he sustained injuries and later on he died in K.G.M.C. Lucknow on the same day.

Further, the Workmen''s Compensation Commissioner and Assistant Labour Commissioner, Uttar Pradesh, Lucknow while awarding the compensation in favour of the claimants had given a categorical findings taking into consideration the fact that the incidence in question had taken place during the course of employment as a result of which Sri Safdar Hussain died.

In view of the said finding of fact given by the authority concerned which is not perverse in nature, the submission made by the learned Counsel for the appellant that the accident in question does not come within the ambit and scope of the provisions provided u/s 3 of the Act, as such the claim petition filed by the claimant is not maintainable, is totally incorrect, wrong submission and rejected.

The next arguments raised by the learned Counsel for the appellant that the claim petition filed by the claimants is not maintainable as per the provisions provided u/s 2(1)(d)(iii)(b) of the Act is concerned, the same is misconceived, incorrect and contrary to the provisions as provided u/s 2(1)(d)(iii)(b) of the Act, the relevant portion of the same is quoted as under:

Definitions.- (1) in this Act unless there is anything repugnant in the subject or context

(d) "dependant" means any of the following relatives of a deceased workman, namely,

(iii) if wholly or in part dependent on the earnings of the workman at the time of his death

(b) a parent other than a widowed mother,

The definition of ''dependent'' in Section 2(1)(d) is in an inclusive one. It does not postulate the exclusion of the dependents of one category by the dependents of the category preceding it See New India Assurance Co. Ltd. v. Nansingh. (1984) 2 LLN 392 MP.

Keeping in view the said fact in the present case Sri Afzal Hussaini and Smt. Kulsum Jaan, who are the father and mother of the deceased Safdar Hussain, were dependent on him clearly established from the material documents on record, so the claim filed by them for compensation filed u/s 10 of the Act is fully maintainable (See. Proprietor, St. Joseph''s Automobile and Mechanical Works, Tuticorin Vs. Maria Soosai Pillai,

For the foregoing reasons, the present appeal filed by the appellants lacks merit and is dismissed as such. Further, the amount deposited by the appellant before Workmen''s Compensation Commissioner and Assistant Labour Commissioner, U.P. Lucknow in pursuance of the Judgment and Award dated 7.6.2002 passed in W.C. No. 19 of 1998, be released forthwith in favour of the claimants- respondents.