United India Insurance Co. Ltd. vs Heerabai

Faizanuddin, J.—This appeal by the United India Insurance Co. Ltd., (hereinafter referred to as the ''Company'') u/s 30 of the Workmen''s Compensation Act, 1923 (hereinafter referred to as the ''Act''), has been directed against the award dated 31st July, 1980, made by the Commissioner for Workmen''s Compensation, Sagar, in W.C. Case No. 7 of 1979, in favour of Respondent No. 1.

One Omprakash Singh, the husband of the Respondent No. 1, was employed as a driver by Respondent No. 2. On 3.7.1978, deceased Omprakash Singh was required to take the bus No. MPD 195 belonging to the Respondent No. 2 to the Railway Station, Sagar. The driver Omprakash Singh was assaulted with a knife by one Munnalal as a result of which he succumbed to injuries. Heerabai Respondent No. 1, the widow of the deceased driver Omprakash Singh, filed an application for compensation u/s 10 of the Act, claiming Rs. 28,000/- by contending that her deceased husband was earning Rs. 400/- per month as wages and that he had died of the personal injuries received by him in accident arising out of and in the course of his employment within the meaning of Section 3 of the Act.

There was no dispute that the deceased Omprakash Singh was in the employment of Respondent No. 2 as a bus driver. There was also no dispute that the said bus was insured with the Appellant-company. The employer, Respondent No. 2, however, contested the claim petition by contending that at the time of his death Omprakash Singh was not on duty and that he did not receive the injuries by any accident arising out of and in the course of his employment as a driver. He pleaded that the deceased was paid Rs. 135/-per month as salary and not Rs. 400/- as alleged by Respondent No. 1. Similar was the defence pleaded by the Appellant-company.

Before the Commissioner the Applicant-Respondent No. 1 Heerabai examined herself only. The employer Respondent No. 2 also examined only one Dayashankar Pandey, AW 1. On the basis of evidence of these two witnesses, learned Commissioner came to the conclusion that the deceased Omprakash Singh was drawing Rs. 285/- per month as driver of the Respondent No. 2 and that the husband of the claimant-Respondent No. 1 had received personal injuries by accident arising out of and in the course of his employment as a driver. Learned Commissioner, therefore, awarded a sum of Rs. 10,000/- as compensation according to Schedule IV u/s 4 of the Act, together with interest at 6 per cent by way of penalty u/s 4A of the Act, against which this appeal has been preferred by the company.

Learned Counsel for the Appellant first contended that there was a complete collusion between the owner of the bus Respondent No. 2 and the claimant in as much as the deceased Omprakash Singh was murdered by one Munnalal on 3.7.1976 at about 12.30 in the night near Railway Station and not in any accident arising out of and in the course of his employment and therefore, the company was not liable for the compensation to indemnify the insured. It may be pointed out that the Appellant-company has not pleaded any collusion in the written statement and has advanced this ground for the first time before this Court. No ground of collusion has been taken in the memo of appeal also. There are also no circumstances to infer any collusion. In these circumstances, it is not open to the Appellant to advance this ground at this stage and even otherwise there is no merit in the said contention.

Learned Counsel for the Appellant next submitted that there was no connection between the employment of the deceased and the incident of his murder and therefore, his death cannot be said to be an incident arising out of and in the course of his employment. In support of this contention he placed his reliance on a Full Bench decision of Allahabad High Court in the case of Abida Khatun v. General Manager Diesel Locomotive Varanasi 1972 ACJ 489 (All). Thus, the crucial point advanced by the learned Counsel for the Appellant is whether Omprakash Singh, the deceased husband of Respondent No. 1, sustained personal injuries by knife inflicted by one Munnalal by accident arising out of and in the course of his employment as a bus driver of Respondent No. 2 or not.

Here, it may be relevant to refer to the provisions of Section 3(1) of the Act which run as under:

3 (1): 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 i n 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--

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) 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

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman.

A careful perusal of the provisions of Section 3 reproduced above will go to show that in order to attract the provisions two conditions are required to be satisfied, namely: (i) personal injury must be caused to a workman by an accident arising out of his employment and that (ii) the personal injuries must have been caused to him in the course of his employment. In the present case, there is no dispute that the deceased Omprakash Singh was employed as a bus driver by the Respondent No. 2 and therefore, the second requirement that he received personal injury as a result of an accident which took place in the course of his employment is fulfilled. The only question remains to be seen is whether in the facts and circumstances of the present case, it can be said that personal injury was caused to the deceased Omprakash Singh by accident arising out of his employment. The expression "in the course of his employment" suggests the point of time. In other words, the injury must be caused by accident which took place in the course of and during currency of his employment. The expression "arising out of his employment" is wide enough so as to cover a case there may not necessarily be a direct connection between the injury caused as a result of accident and the employment of the workman. There may be circumstance attending the employment which would go to show that the workman received personal injury as a result of accident arising out of his employment.

The expression "arising out of and in the course of his employment" occurring in Section 3(1) of the Act has been the subject for interpretation before various High Courts and apex Court of India. In the case of National Iron and Steel Co. Ltd. Vs. Monorama Dassi, , a boy who was employed in a tea shop had gone in a close by factory to serve tea and at that point of time a mob of factory workmen attacked the police and the police fired in self-defence. The bullet struck the boy who died. The mother of the deceased boy filed an application for compensation. The question arose whether the boy had received the personal bullet injuries by accident arising out of and in the course of his employment or not. The Division Bench of Calcutta High Court held that the accident arose in the course of his employment on the reasoning that it was not necessary for the mother of the deceased boy to establish that the death resulted from some special risk to which the boy was exposed. It has been observed that the boy was exposed to the risk as his employment required him to pass a dangerous spot or place arid in passing such a place he received injury and that being so it can be said that the accident arose out of his employment. In the case of Bhagubai Vs. General Manager, Central Railway, V.T., Bombay, , a Division Bench of Bombay High Court while interpreting the expression "arising out of employment" took the view that there must be a causal connection between the accident and the employment in order that the court can say that the accident arose out of the employment of the deceased. The cause contemplated is the proximate cause and not any remote cause. If the employee in the course of his employment has to be in a particular place and by reason of his being in that particular place he has to face a peril and the accident is caused by reason of that peril which he has to face, then a causal connection is established between the accident and the employment. The fact that the employee shares that peril with other members of the public is an irrelevant consideration. The peril which he faces must not be something personal to him the peril must be incidental to his employment. He must not by his own act add to the peril or extend the peril. Once the peril is established, it is for the employer then to establish that either the peril was brought about by the employee himself that he added or extended the peril, or that the peril was not a general but a peril personal to the employee.

In the case of Babulal Mulchand v. Ali Mohammad Rajjab 1962 MPLJ 454, this Court relying on the aforesaid decisions of the Calcutta and Bombay High Courts (supra) also took the view that there must be some sort of connection between the employment and the accident. It is sufficient if it is shown that the accident took place due to some unforeseen agent but during the course of employment and when the employee is actually performing his duty as an employee. In this case a cleaner of a bus accompanying the bus was injured as a result of shots fired by dacoits on the bus. The question arose whether the cleaner had received the injury arising out of and in the course of his employment. It was on these facts that this Court took the view that the accident arose in the course of his employment since it was his duty as a cleaner which required him to accompany the bus through dacoits infested area. The expression "arising out of and in the course of employment" also came up for consideration of their Lordships of Supreme Court in the case of Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak 1969 ACJ 422 (SC), wherein it was 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 to believe the workman would not otherwise have suffered''.... There must be a causal relationship between the accident and the employment.... 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 the present case, on evaluation of evidence on record the learned Commissioner has reached a definite conclusion that the deceased Omprakash Singh while employed as a driver of the Respondent No. 2 had to take the bus to the Railway Station. Sagar and when he was stabbed by one Munnalal he was on duty. From the evidence and the finding recorded by the learned Commissioner it is clear that the deceased Omprakash Singh was required to take the bus to the Railway Station at a particular time. This was a circumstance attending his employment because at that time and place Omprakash Singh had to take the bus at Railway Station where he was stabbed by one Munnalal in consequence of which he died. The deceased had to take the bus to the Railway Station as part of his duty where he was given a fatal blow. The incident of inflicting knife injury at the time and place when the deceased was on duty was a proximate cause. The injury had resulted to the deceased from the risk incidental to the duties of his service and unless he was engaged in the duty owing to his master, in all probability the workman that is the deceased Omprakash Singh would not have otherwise suffered the injury. In those circumstances, it can well be said that a causal connection was established between the accident and the employment and the accident had occurred on account of the risk which was an incident of the employment. There is neither any pleading nor any suggestion that the deceased by his own act added to the said incident or the same was brought about by himself. The decision in the case of Abida Khatun v. General Manager Diesel Locomotive Varanasu 1972 ACJ 489 (All), relied on by the learned Counsel for the Appellant does not advance his contention because in that case it was not established that there was any risk which was ordinarily inherent in discharge of the duties of the deceased workman with his employment. It was also found that the claimant had failed to establish that the workman was exposed to some special risk at the place where the accident took place. It was in these circumstances, the Full Bench of the Allahabad High Court in the case of Abida Khatun (supra) took the view that it was not established that the accident arose "out of employment".

For the reasons stated above the appeal fails and is hereby dismissed with costs. Counsel''s fees as per schedule, if certified.