FAO No.1749 of 2011 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1749 of 2011 (O&M). Decided on: March 22, 2011. Subhash Chand Garg and another .. Appellants VERSUS Ram Murti and another .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.Akshey Kumar Goel, Advocate, for the appellants. M.M.S. BEDI, J. Award dated 31.01.2011, has been challenged in appeal under Section 30 of the Workmen's Compensation Act, 1923, (for short 'The Act'), by the Employer of deceased Hari Shanker, who was aged 21 years. Vide impugned award the respondents have been . . . 1 FAO No.1749 of 2011 (O&M) awarded compensation of ` 4,00,878/- along with interest and penalty total amounting to ` 7,23,585/-. The respondents had sought compensation under the Act on account of death of Hari Shanker claiming that he was engaged as labourer by the appellants for working with Railway Department on daily wages. He was doing the work of labour with the appellants for 5/6 months prior to the date of accident i.e., 23.08.2007. The deceased along with others on 23.08.2007, had come from the side of railway station and was going from the Railway Station, Mohari, towards Gate No.100 by crossing the bridge where he met with an accident with the passenger train coming from Ambala side. He died on the spot on account of injuries sustained by him in the accident. The appellants had claimed that accident had taken place at about 8.02 AM, as such, the appellants were not liable to pay any compensation to the respondents as the deceased was not on the job at the time of accident. They had taken up the plea that the work had to be done by the labour of the contractors on the spot in the presence of Railway Supervisor who had to reach at the spot of work at 9:00 AM. Neither the labour of the Contractor nor the Supervisor of the Railway Department had reached the spot of work when the accident had taken place. After reaching of the Supervisor of the Railway Station on the spot, a red colour flag is fixed on the railway track for signal to the coming and going trains so that no accident takes place. The Supervisor of the Railway Department daily comes from Kurukshetra by train and reaches at the spot at 9:00 AM whereas on the fateful day, the . . . 2 FAO No.1749 of 2011 (O&M) Supervisor Uttam Singh was to reach on the work place at 9:00 AM when the work was to be started by the labour of the Contractor. The accident of Hari Shanker did not take place at the time of working with the appellants. The Commissioner had arrived at a conclusion that the deceased had met with an accident during the course of employment and that there existed relationship of master and servant between deceased Hari Shanker and appellants. Learned counsel for the appellants has vehemently contended that the son of respondents was working as labourer with the appellants who are Railway Contractors and the deceased had met with an accident with passenger train coming from Ambala side at 8:02 AM. The deceased cannot be said to have met with an accident during the course of employment, as such, the award passed by the Commissioner deserves to be set aside. Learned counsel for the appellants has relied upon the judgment of Hon'ble the Apex Court in Saurashtra Salt Manufacturing Co., Vs. Bai Valu Raja and others, AIR 1958 SC 881(1), wherein in context to the provisions of the Workmen's Compensation Act, it was held that as a rule, the employment of the workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment. In the said case, the workman employed in salt works, while returning to home after finishing his work had to go by a public path then through a sandy area in the open public and finally across . . . 3 FAO No.1749 of 2011 (O&M) a creek through a ferry boat. The workman while crossing the creek in public ferry boat was drowned due to bad weather. It was held that the accident could not have been said to have arisen out of and in the course of employment while crossing creek inasmuch as the theory of notional extension could not extend to the point where the boat capsized. The learned counsel also placed reliance upon Malikarjuna G. Hiremath Vs. Branch Manager, Oriental Insurance Company Limited and another, (2009) 13 Supreme Court Cases. 405. In the said case, the driver of owner's vehicle instructed to take passengers to a temple. On reaching the destination driver whilst at a pond slipped and drowned, resulting in his death. Hon'ble the Apex Court held that it was not sufficient to fasten liability on either insurer or insured as the accident could not be said to be arisen out of and in the course of employment, laying down a principle that there is need for “casual connection” between the death of workman and employment. Reliance was also placed on Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali, (2007) 11 SCC 668. In the said case, an employee died due to heart attack at work. Hon'ble the Apex Court held that circumstances must be shown to be existing that death caused by reason of cardiac arrest because of stress and strain of work and medical opinion would be relevant. It was further observed that each case has to be considered on its own facts and no hard and fast rule can be laid down. In the said judgment, it was held that a claimant was required . . . 4 FAO No.1749 of 2011 (O&M) to produce some evidence that employment attributed to the death of the deceased. It is required to be established that death had occurred during the course of employment. There is a crucial link between causal connections of employment with the death. Such a link with the evidence cannot be a matter of surmise and conjecture. If a finding is arrived at without pleading or legal evidence, the statutory authority will commit a jurisdictional error while exercising jurisdiction. Another judgment relied upon by the counsel for the appellants is Regional Director, E.S.I., Corporation and another Vs. Francis De Costa and another, (1996) 6 Supreme Court Cases, page 1 in which case, the employee while going to his place of employment met with an accident at a place which was about one kilometre away from the factory at 4:15 PM while his duty shift was to commence at 4:30 PM, fracturing his collar bone. The said injury was held to be not arisen out of and in the course of employment if seen, in context to Section 2 (8) of the Employees' State Insurance Act. I have heard the counsel for the appellants and considered all the judgments cited by him in context to the pleadings and evidence which has been brought on the record by summoning the record. The record of the Commissioner indicates that it had been pleaded by the claimants that the deceased was doing the work of labour with the appellants and on 23.08.2007, during the time of work of the appellants, the deceased along with other labourers coming from the side of Railway Station and going from . . . 5 FAO No.1749 of 2011 (O&M) the Railway Station, Mohari towards Gate No.100 by crossing the bridge and during the time of crossing the bridge while coming towards his place of work under the respondents, had come in front side of the passenger train which was coming from the Ambala side and due to the injuries sustained in the accident, he died on the spot. After the accident, the dead body was brought to Civil Hospital where the post mortem was conducted. DDR No.10 dated 23.08.2007, in Government Railway Police Station, Kurukshetra, was registered regarding the accident. In proceedings under Section 174 Cr.P.C, it was mentioned that Hari Shanker died in the accident during the time of his employment with the appellants. The said contention has been controverted by the appellants in the reply by pleading that the deceased Hari Shanker was not working at the time of accident under the appellants as accident had taken place at 8:02 AM and that they are not liable to pay compensation to the claimants as Hari Shanker was not on job at the time of accident. They had further pleaded that without the presence of Railway Supervisor on the spot where work is to be done by the labour of the contractors, the contractors cannot start work on the railway track and that the Supervisor of the railway Department used to reach the spot of work at 9:00 AM. The labour of the Contractors also used to reach the spot at 9:00 AM, as such, the work used to start at 9:00 AM. Neither the labour of the contractors nor the Supervisor of the railway Department used to reach the spot . . . 6 FAO No.1749 of 2011 (O&M) of the work. After reaching of the Supervisor of the railway Department on the spot, a red colour flag is fixed on the railway track for signal to the incoming and outgoing trains so that no accident takes place. Uttam Singh, Supervisor, was examined as RW.2 to prove that he reached on the spot at 9:30 AM. He stated that on 23.08.2007, no work was being done when Hari Shanker casual labour had died. He stated that Hari Shanker had not died on work of the respondents. Appellant No.1, had appeared as a witness and had deposed on oath, in his affidavit, EX.RW1, that the deceased was alone at the time of accident. He was crossing the railway bridge for going to respond the call of nature and during that when the deceased Hari Shanker was crossing the railway bridge to answer the call of nature, he came in front of the passenger train which was coming from Ambala side and due to injuries sustained in this accident, he died at the spot at 8:02 AM. I have carefully gone through the statements of the witnesses. A perusal of the cross-examination of Uttam Singh, reflects that during emergency hours, the work used to be done at the Railway Station during day and night and on special orders also the work used to be done on railway track during day and night. The appellant appeared as RW.3. He had admitted in cross-examination that he gets the labour work done through Zamadar and Hari . . . 7 FAO No.1749 of 2011 (O&M) Shanker was engaged as labour by his Zamadar on 23.08.2007. He did not die on work but died on the bridge. The statement EX.R8 was got recorded by number of labourers, residents of Brahm Colony, Kurukshetra that the deceased along with other labourers had been working on the railway line for the last 5/6 months and he died on 23.08.2007 while he was coming along with other labourers towards the Railway Station, Mohari. The perusal of the record and evidence is sufficient to arrive at a conclusion that Hari Shanker was present on the railway line only on account of being engaged by the contractors who had been given contract on the railway line. Had the deceased been not employed and had not been working for the last 5/6 months with the appellants, he had no business to cross the railway line on 23.08.2007. The joint statement of number of labourers vide EX.R8 in proceedings under Section 175 Cr.P.C., establishes that along with other labourers, the deceased was going for work. Even if it is presumed for the sake of arguments that he was not going to the place of work, at the time he met with an accident, still it cannot be said that there is no relationship of his death with the labour work which he was doing on the railway line. I have carefully considered the judgments cited by the counsel for the appellants. In case Saurashtra Salt Manufacturing Co., (supra), it was not laid down as hard and fast rule that accident should have occurred in the employer's premises for the purpose of . . . 8 FAO No.1749 of 2011 (O&M) grant of compensation or to determine whether the accident had taken place during the course of employment. It was held as follows: - “As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. It is now well-settled, however, that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times this theory of notional extension.” A perusal of the above said observations indicates that there should be reasonable extension in both time and place of employer's premises so as to include the area which the workman passed and re-passed in going to and in leaving the actual place of work. The facts and circumstances of each case have to be examined carefully in order to determine whether the accident arose out of and in the course of employment of workman keeping in view . . . 9 FAO No.1749 of 2011 (O&M) at all times the theory of notional extension. Applying the principle of notional extension, in the present case, I am of the considered opinion that the deceased in the present case, was present on the railway line only on account of he being the employee under the appellants when it is admitted by the witness Uttam Singh that on different occasions the work used to be done during the day and night. In view of the said admission by the witness, it become immaterial that the accident had taken place at 8:02 AM whereas the work used to start at 9:00 AM. The ratio of the ruling in case Saurashtra Salt Manufacturing Co., (supra), is, thus, not helpful to the appellants. Similarly in case Malikarjuna G. Hiremath (supra), it has been held that there has to be a causal connection between the death of the workman and his employment to find out whether the accident had occurred in the course of his employment. The facts of case Shakuntala Chandrakant Shreshti (supra), are not applicable to the facts of the present case. So far as the principle laid down in the said case that it has to be established that there is a causal connection between the accident and the employment, Emphasis was laid down on the principle for attracting the charging provision contained in Section 3 of the Workmen's Compensation Act, 1923. It was held that for attracting the provisions of Section 3 of the Act, it is necessary to establish the following: - (i) Injury must be caused to the workman; (ii) Such injury must have been caused by an accident; . . . 10 FAO No.1749 of 2011 (O&M) (iii) It must arose out of or in the course of his employment. It was observed in the said judgment as follows: - “There is a crucial link between causal connections of employment with the death. Such a link with the evidence cannot be a matter of surmise and conjecture. If a finding is arrived at without pleading or legal evidence, the statutory authority will commit a jurisdictional error while exercising jurisdiction. There must be some evidence that the employment contributed to the death of the deceased. It is required to be established that the death occurred during the course of employment.” As discussed hereinabove, the claimants- respondents have been able to establish the connection of employment with the death. The evidence produced on the record is sufficient enough to establish link of death with employment of deceased Hari Shanker on the railway line. As the connection between the employment and death has been established, the Commissioner has rightly granted compensation to the respondents. So far as the case of Francis De Costa and another (supra), is concerned, the said case pertains to a claim under the Employees' State Insurance Act, 1948. The accident therein took place one kilometre away from the place of employment. On these facts, Hon'ble the Supreme Court had held that there is no . . . 11 FAO No.1749 of 2011 (O&M) causal connection between the accident and the employment. After going through the factual details, I am of the considered opinion that the said decision is not applicable to the case in hand though similar provision is there in Employees' State Insurance Act. Hon'ble the Apex Court in Mackinnon Mackenzie & Co. (P) Ltd. Vs. Ibrahim Mohd. Issak, AIR 1970 SC 1906, has held as follows:- “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 employment" mean in the course of work which the workman is employed to do and which is incidental to it. The words "arising out of the 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. The expression is not confined to the mere nature of the employment but applies to the employment as 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 . . . 12 FAO No.1749 of 2011 (O&M) imprudent act.” The principle laid down in case Mackinnon Mackenzie & Co. (P) Ltd. (supra), was followed by a Division Bench of the Madras High Court in case Kalyani P. and Divisional Manager, Southern Railway, (Personal Branch), Divisional Office, Madras, 2004-1-LLJ, Page 49. In the said case a workman died of heart attack while on duty. It was held, on appreciation of evidence, that death arose in the course of employment, as such, compensation was awarded. Following the ratio in cases Mackinnon Mackenzie & Co. (P) Ltd. (supra), and Kalyani P. (supra), this Court is of the opinion that on the basis of the evidence led by the claimants- respondents, a causal relationship between accident and the employment of the deceased stands established. The deceased workman on account of exigencies of his employment was required to be present in the zone of special danger in the area of railway lines. Even if it is presumed that he died at 8:02 AM, while his work was to start at 9:00 AM or 9:30 AM, taking into consideration the nature of his employment, conditions of employment and other obligations and incidents, the accident has occurred on account of the reason which is an incident of the employment. The claim of compensation has rightly been allowed as the deceased workman was exposed to the risk in the course of his employment when he died on account of railway accident. In view of above circumstances, the death of Hari . . . 13 FAO No.1749 of 2011 (O&M) Shanker has rightly been held to be during the course of employment. The appeal is, thus, dismissed in limine. Record be sent back immediately. (M.M.S.BEDI) JUDGE March 22, 2011. rka . . . 14