United India Insurance Co.Ltd. vs Nirmal Kaur

This is an appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act) against the award dated

07.09.1995 passed by Commissioner, Workmen's Compensation Act, Labour Commissioner, J&K Jammu (hereinafter referred to as the

Commissioner) by virtue of which he has awarded an amount of Rs. 77,856/ as compensation in favour of the legal representatives of Mohan

Singh.

The relevant facts for the disposal of this appeal are that deceased Mohan Singh was working as driver with nonapplicant No. 1 Amar Singh

who was the owner of the vehicle No. 1387JKS. On 19.05.1994, during the course of his employment with nonapplicant No.l deceased Mohan

Singh left for Srinagar, after loading his truck and on his way, the deceased fell ill and asked his cleaner to drive his vehicle. On 20.05.1994 at

about 4 a.m. when vehicle reached near Awantipora (Kashmir), some army personnel stopped the vehicle and asked the persons sitting inside the

vehicle to come down. Driver Mohan Singh was infuriated the army personnel who have given severe beating to the deceased driver and when he

tried to argue with them, one of army jawans fired upon the deceased Mohan Singh, killing him on the spot. The cleaner of the vehicle reported the

matter to the police and FIR was registered in Police Station Awantipora, and post mortem was conducted on the dead body of the Mohan Singh.

It was further pleaded that the deceased was 36 years old at the time of accident and getting Rs.2000/ per month as salary including allowances

from the nonapplicant No.l.

Petition for grant of compensation was filed before the Commissioner and on notice Amar Singh, nonapplicant No.l admitted the contents of

petition. Nonapplicant No.2 (appellant herein) raised number of objections and pleaded that the deceased was not performing his duties at the time

of accident and was not holding a valid driving licence. It was also pleaded that the Commissioner has no jurisdiction to entertain and adjudicate

the matter, as the claimants have not approached the Assistant Labour Commissioner, Awantipora.

After recording evidence of the parties, learned Commissioner passed the award as stated in paragraph No. 1 of the judgment, aggrieved by

which the Insurance Company has preferred this appeal.

Learned counsel for the appellant has raised twofold contentions. His first contention is that under the Act, claim petition could be filed within the

jurisdiction of the Assistant Labour Commissioner, Awantipora (Kashmir) under whose jurisdiction the accident had occurred which has the

jurisdiction to entertain and adjudicate the petition, but the claimants filed the claim petition before the Commissioner, Workmen's Compensation

Act Labour Commissioner, Jammu. The next contention raised by the learned counsel for the appellant is that deceasedMohan Singh had not died

due to accident which arose out and in the course of his employment. He submitted that under Section 3(1) of the Act, the compensation could

only be awarded after the workman had died in an accident during the course of his employment. He submitted that the deceasedMohan Singh had

altercation with the Army personnel and Army personnel fired a shot as a result of which he died. He submitted that even this occurrence is taken

as an accident, it is not one which has arisen during the course of employment of deceasedMohan Singh. When the accident has not occurred

during the course of employment to the deceasedMohan Singh, his legal heirs are not entitled for compensation. In support of his argument, he has

relied upon the cases reported as Special Officer, Periyakulam Anna Polythene Worker's Industrial Cooperative Society Ltd. Vs. Ayyammal and

another, 1994 ACJ 1225 and Bharat Heavy Electricals Ltd. Vs. Cyan Kaur and another, 2000 ACJ 100.

In Special Officer, Periyakulam Anna Polythene Worker's Industrial Coop. Society Ltd. Vs. Ayyammal and another, husband of wife has

serious quarrel after and in the day of occurrence husband entered place of occurrence where his wife beat him and he stabbed her to death. In

that circumstance, court held that death was not caused because of the accident arising out of an in the course of employment. The court also

observed that death was due to quarrel between the workman and her husband as result of animousity against her, peril was brought about by the

employer herself and she added or extended the peril or that the peril was not a general peril but a peril personal to the employee.

In Bharat Heavy Electricals Ltd. Vs. Gyan Kaur and another case, workman went for lunch during interval after punching his card but workman

did not return for the shift and his body was recovered the next day within factory premises by the security guard. The police registered the case of

murder against the relatives of the deceased as he died on account of assault by them. Under these circumstances, their Lordships held that there

was no casual connection between the employment and the murder nor the deceased was murdered because of his employment.

After hearing learned counsel for the parties and perusing the record, I am of the considered opinion that the learned Commissioner has not

committed any legal or jurisdictional error in awarding the compensation.

Under the Act, only the Commissioner has the jurisdiction to entertain and adjudicate upon the claim petition filed under section 3 of the Act.

The Assistant Labour Commissioner has been delegated with the powers of the Commissioner under the Act.

The core issue which is to be decided in this appeal is as to whether the killing of deceasedMohan Singh by the Army personnel comes under

the definition of accident and that accident arises during the course of his employment?

Before considering the above said proposition, it will be appropriate to notice the provisions of section 3(1) of the Act, which reads as under:

Employer's liability for compensation: (I) If personnel 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 provision of this Chapter: Provided that the employer shall

not be so liable

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding (three) days;

(b) in respect of any (injury, not resulting in death, (or permanent total disablement) 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 willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of

workmen, or (iii) the willful 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 workmen.

The words ""arising out and in the course of employment"" have been the subject matter before the Hon'ble Apex Court and various High

Courts of the Country. In Mackinnon Mackenzie and Co. Private Ltd., Vs. Ibrahim Mahommad Issak, AIR 1970SC 1906, 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 owning to the master, it is reasonable 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 is such to its nature, its conditions, its obligations and its

incidents. If by reason of any of those factors the workman is brought within the zone 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 case Bhagubai Vs. General Manager, Central Rly., AIR 1955 Bombay High Court held as under:

;'Now it is clear 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. It is equally clear that the cause contemplated is the proximate cause and not any remote cause. The

authorities have clearly laid down that if the employees 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. It is now well settled that the fact that the employee shares that peril with other members of

the public is an irrelevant consideration. It is true that the peril which he faces must not be something personal to him; the peril must be incidental to

his employment. It is also clear that he must not by his own act add to the peril or extend the peril. But if the peril which he faces has nothing to do

with his own action or his own conduct, but it is a peril which would have been faced by any other employee or any other member of the public,

then if the accident arises out of such peril, a causal connection is established between the employment and the accident.

A similar view has been taken by the Hon'ble Kerala High Court in case reported as 1996 LIC 2097.

In the instant case, deceased Mohan Singh was admittedly employed by nonapplicant No. 1. the accident has occurred when deceased

Mohan Singh was taking his truck to Srinagar. In the way, he became ill and asked his Cleaner to drive the vehicle. When vehicle reached near

Awantipura, some army personal stopped the vehicle and asked Mohan Singh and the Cleaner to come down from the vehicle and due to illness,

the deceased Mohan Singh took some time to come down and on this the army personnel became infuriated and fired at Mohan Singh as a result

of which he died. So, this accident has occurred arising out of and in the course of his employment. Therefore, the learned Commissioner has

rightly awarded the compensation under the Act in favour of the claimants.

For the reasons mentioned above, there is no merit in this appeal and the same is, accordingly, dismissed with costs of Rs.3000/.