1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.791 OF 1990 Shri Babasaheb Dawal Nadaf & Anr. : Appellants versus Appaso Sadgonda Patil : Respondent. Shri U. R. Mankapure for the Appellants. Shri V. S. Gokhale for the Respondent. CORAM : R.M.SAVANT, J DATED : September 10, 2008 P.C. 1. The above First Appeal is filed challenging the Judgment and Order dated 22/8/1990 passed by the learned Commissioner for Workmen's Compensation and Judge, Labour Court, Sangli by which the application filed by the Appellants under the Workmen's Compensation Act came to be rejected. 2. The Appellants are the original Claimants in Workmen 2 Compensation Case No.32 of 1988 filed under the provisions of the Workmen's Compensation Act (hereinafter referred to as “the said Act”). It is the case of the Appellants that they are the legal heirs of the deceased late Jahangir Babasaheb Nadaf who was injured out of and in the course of his employment with the Respondent/Respondent and died due to injuries on 31/1/1988. It was further the case of the Appellants that the deceased Jahangir was working with the Respondent as a cleaner on the tractor owned by the Respondent. The Respondent had asked the deceased and the driver of the tractor to carry diesel barrel in the tractor to a garage and asked them to weld the said diesel barrel and repair the same. The barrel was unloaded from the trolley and was kept for welding. It was the case of the Appellants that when the welding work was being done, the barrel exploded and deceased Jahangir along with the driver suffered grievous burn injuries due to the explosion. The deceased Jahangir was immediately taken to the Civil Hospital, Sangli but he died due to the injuries in the hospital on 31/1/1988. Thus, according to the Appellants, the death was the direct result of the injuries sustained and it took place out of and in the course of the 3 employment with the Respondent/Respondent. 3. The amount of compensation, accordingly to the Appellants, fell due on 31/1/1988. The Appellants met the Respondent/Respondent many times. However, in spite of such meeting no amount was forth coming from the Respondent. Hence the Appellants filed the said Workmen Compensation Case No.32 of 1988 claiming amount of Rs.20,474,10 by way of penalty and interest at the rate of 18% per annum. 4. The Respondent filed his written statement contending that the case put up by the Appellants was false. The Respondent denied that the said Jahangir was injured out of and in the course of employment with the Respondent on 29/1/1988 and succumbed to the injuries on 31/1/1988. The Respondent denied that the Appellants were depending on the said deceased Jahangir. The fact that the deceased Jahangir was working with the Respondent/Respondent was denied. It was the case of the Respondent/Respondent in the written statement that it is without consent of the Respondent that the 4 said Jahangir took the barrel to the garage and without consent of the welder took the welding wire and rod and started welding work on the said barrel. It was further the case of the Respondent that in spite of he being told by the welder not to weld the barrel as it would explode and would cause injuries to him, the deceased Jahangir knowingly accepted the risk and, therefore, the death of the said Jahangir was not on account of any act committed out of and in the course of the employment with the Respondent. It was further contended on behalf of the Respondent that the injuries sustained were on account of the personal risk that the said Jahangir took in venturing to weld the said barrel. 5. The sum and substance of the case of the Respondent is one of denial. The learned Commissioner for Workmen's Compensation tried the said Workmen Case No.32 of 88 by framing the relevant issues. The learned Commissioner recorded a finding that the deceased was employed as cleaner on the tractor owned by the Respondent. However, in so far as whether the Respondent was liable to pay the compensation as per the said Act is concerned, the 5 learned Commissioner held that the said incident had taken place on account of the negligent behaviour and conduct of the deceased Jahangir and the driver of the tractor. The learned Commissioner, on the basis of the evidence that was before him viz of the garage owner, has recorded a finding that the said incident was on account of the driver and cleaner having negligently handled the welding articles and barrel carelessly and the explosion took place due to the negligent behaviour of the driver and cleaner. The learned Commissioner, therefore, in the said circumstances, held that no case for grant of any compensation under the said act was made out and, therefore, dismissed the said Workmen Compensation Case No.32 of 1988. 6. In so far as the finding of the learned Commissioner that the said Jahangir was employed as a cleaner with the Respondent is concerned, the Respondent has filed a Cross Objection assailing the said finding. 6 7. I have heard the learned counsels for the Appellants and Respondent. I have also perused the record pertaining to the said case. 8. On behalf of the Appellants, it is submitted by Shri Mankapure that the learned Commissioner having once recorded a finding that the deceased Jahangir was employed as a cleaner with the Respondent, thereafter could not have rejected the said Application on the ground that death was not on account of injuries sustained out of and in the course of the employment. Relying upon Section 3 of the Workmen's Compensation Act, the learned counsel for the Appellants submitted that only in case of the three exceptions in the said Section that the employer cannot be made liable. According to the learned counsel for the Appellants, the present case does not fall in any of the exceptions. The deceased Jahangir having died on account of injury suffered by him whilst carrying out the work assigned to him by the Respondent. It would have to be held that he had died on account of injuries suffered out of and in the course of the employment, and therefore, the Respondent was liable for payment 7 of compensation under the said Act. Shri Mankapure drew my attention to the deposition of the witnesses in support of his submission that the finding of the learned Commissioner that the deceased Jahangir was employed as a cleaner could not be faulted with. The learned counsel for the Appellants further submitted that the Workmen Compensation being a beneficial piece of legislation, a claim under the said Section cannot be rejected on the grounds as in the instant case. He lastly submitted that if this Court comes to a conclusion that for determining the actual amount of compensation due to the Appellants, the matter would have to be remitted back to the learned Commissioner and the said course of action may be followed by this Court. 9. On the other hand, it is submitted by Shri Gokhale, the learned counsel appearing for the Respondent that the issue as to whether the said deceased Jahangir was employed with the Respondent has been dealt with in a very casual manner by the learned Commissioner. The learned Commissioner without even referring to the evidence has recorded a finding that the said Jahangir 8 was employed as a cleaner with the Respondent. 10. However, in so far as interpretation of Section 3 of the said Act is concerned, the learned counsel for the Respondent fairly conceded that on account of the death of the said Jahangir due to the said accident, Section 3 would be applicable unless the Respondent is able to show that the said deceased Jahangir was not employed with the Respondent and that the injuries sustained by him were not out of and in the course of employment. He drew my attention to the deposition of the witnesses and submitted that there is no concrete evidence on record to lead to a conclusion that the said Jahangir was in fact employed with the Respondent. The learned counsel for the Respondent submitted that mere words of the father of the deceased Jahangir and the brother of the driver could not be accepted as there is no other material on record to substantiate the case of the Appellants that the deceased Jahangir was in fact employed with the Respondent. The learned counsel for the Respondent further submitted that the Appellants could not rely upon the statements made before the Police as they were not admissible in evidence 9 having regard to Section 162 of the Code of Civil Procedure. He, therefore, submitted that the learned Commissioner was right in rejecting the said Workmen's Compensation Case No.32 of 1988 as the injuries sustained by the deceased Jahangir were not out of and in the course of the employed with the Respondent. 11. I have considered the rival submissions and have also gone through the depositions of the witnesses which are on record. 12. It would be pertinent to note that in the instant case reliance can only be placed on the oral depositions. The evidence of Babasaheb Nadaf – the Appellant No.1, describes the employment of the deceased Jahangir with the Respondent. He has stated as regards the various characteristics of the said employment. In spite of suggestions being put to him, the evidence given by the said Balasaheb Nadaf has not been dented, as regards the employment of the said deceased Jahangir with the Respondent is concerned. In so far as evidence of the brother of the driver of the tractor is concerned, his evidence also supports the case of the Appellant No.1 that the 10 said deceased Jahangir was employed with the Respondent. In a matter of this kind wherein the deceased Jahangir was employed with the Respondent who is an agriculturist owning a tractor, on which tractor the said Jahangir was employed as a cleaner, no other better evidence would be available and forth coming. Considering the fact that two witnesses have concurrently deposed giving particulars of the employment of the said deceased Jahangir with the Respondent, in my view, the finding recorded by the learned Commissioner as regards the employment of the said Jahangir with the Respondent cannot be faulted with. 13. The second issue which now remains is, as to whether the injuries which the said Jahangir sustained were out of and in the course of his employment with the Respondent. Here the deposition of garage owner Iqbal Mahamad Dhalait and the brother of the driver of the tractor are material. The garage owner has in terms stated as to how the incident has taken taken place. The fact that the driver and the said Jahangir both died on account of the injuries sustained by them in the said accident lends credence to the case of the Appellants 11 that the injuries sustained by Jahangir were out of and in the course of his employment with the Respondent. In so far as evidence of the brother of the driver is concerned, the said witness has also vividly described as to how the said incident had taken place. In my view considering the evidence which has come on record in the matter of Jahangir and driver having been asked to take the said diesel barrel for welding, it would have to be held that the injuries sustained by the said Jahangir were out of and in the course of his employment with the Respondent. 14. Now coming to Section 3 of the Workmen's Compensation Act. The said Section inter-alia contains three exceptions on account which the employer cannot be held liable for the payment of compensation under the said Act. In the instant case, since the death has occurred, the said exceptions would not apply and once it is held that the injuries suffered by the deceased were out of and in the course of employment, the employer would have to be held liable to pay the compensation under the said Act. In any event, this Court having come to the conclusion that the injuries suffered were out of 12 and in the course of employment and the said legislation being a beneficial piece of legislation, in my view, the said Workmen Compensation Case No.32 of 1988 would have to be allowed and is accordingly allowed. 15. Since the Appellants are held to be entitled to the compensation under the said Act, in my view, it would be just and proper to remit the matter back to the learned Commissioner, Workmen's Compensation, Sangli for adjudicating upon and fixing the compensation that would be payable to the Appellants, taking into consideration the claim and the provisions of the said Act. On remand the learned Commissioner to decide and fix the compensation payable to the Appellants within three months from the receipt of the order of this Court. The above Appeal is accordingly allowed to the aforesaid extent. 16. In view of the Appeal being allowed, I do not find any merit in the Cross Objection filed by the Respondent, which is accordingly dismissed. 13 [R.M.SAVANT, J]