IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR ^; M,A^(C) N0._^ \ I /2008 ^ APPELLANT Jai Prakash Agrawal, aged about- 50 years, S/o. Shri Santlal Agrawal, Caste- Agrawal, Occupation- Contractor ship, R/o. Tulsi Nagar Marg, Transport Nagar, P.S. & Tehsil- Korba, District- Korba (C.G.) VERSUS RESPONDENTS 1,^ Smt. Phool Bai, aged about 20 years, W/o. Late Shri Shankar Das, Caste- Panika, R/o. Bhawerkhol at present R/o. Katharimal •\ 9~ ^'Chowki, Urga, P.S. Korba, Tehsil- Kartala, District- Korba (C.G.) ,^' ^- ^ ^' (M^ ^\^ 2.jj^Mmor Ku. Muskan, aged about 01 years •y^ ^^ .y Through Natural Guardian Smt. Phool Bai, W/o. Late Shankar Das, R/o. Bhawerkhol at present R/o. Katharimal, Tehsil- Kartala, District- Korba (C.G.) ^ 3. o Commissioner, Nagar Palik Nigam, Korba (C.G.) y^a\ V^U<^ «h1U^fc625'0/^ MEMO OF APPEAL UNDER SECTION 30 OF THE WORKMEN'S COMPENSATION ACT, 1923 ^'' \J^ HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT RBSPONDENTS M.A. (QNo. 511/2008 Jai Prakash Agrawal Versus Smt. Phool Sai and others ORDER Postfor^.7-01-2010 Sd/- 1 N. K. Agarwal Judge k^ HIGH COURT OF CHHATTISGARH AT BILASPUR APPBLLANT RESPONDENTS M.A. (Q No. 511/2008 Jai Prakash Agrawal Versus Smt. Phool Sai and others SINGLE BENCH:- Hon. Shri N.K. Agarwal, J PRESENT :- Shri Sunil Otwani, Counsel for the appellant. Shri S.V. Purohit, Counsel for the respondents No. 1 and 2. Shri Sourabh Sharma, Counsel for respondent No. 3. ORDER (27-1-2010) 1. This is employer's appeal arising out of award dated 14-1- 2008 passed by the Commissioner, Workmen's Compensation, Labour Court, Korba in Case No. 8/W.C.Act/07(F) whereby and whereunder an amount of Rs. 2,66,250/- has been awarded to the respondents No. 1 and 2/claimants for the death of Shankardas as against the appellant along with Rs. 25,000/- as penalty and costs of the proceedings as Rs. 1000/-. Interest has also been awarded @ 10% per annum if the amount is not deposited within a period of one month. 2. The instant appeal was admitted for hearing by this Court on the following substantial question of law:- "Whether the Commissioner, Workmen's Compensation was notjustified to award the compensation on account of death of Shankardas while he was working as workraan at the time of accident ??? 3. Indisputably, on 6-8-2006 i.e. the date of accident, deceased Shankardas was working as labourer/workman under the employment of appellant and was employed for road widening work at Power House Road, Korba (CG). t^> 4. According to respondents No. 1 and 2/Claimants deceased sustained injuries while working on the mixture machine whereas as per the appellant, the deceased was dashed by unknown Sunio or Marshal jeep and sustained injuries when he went outside the security zone to attend the call of nature. 5. It is not in dispute that the said deceased succumbed to the injuries sustained in tbe said accident while worklng under the employment of the appellant and at the place of employment. 6. Learned Commissioner for Workmen's Compensation on a close scrutiny of the evidence led, raaterial placed and submissions made recorded a finding in favour of the claimants that the deceased died in the accident which arose out of the course of employment, and awarded aforementioned amount of compensation. 7. Shri Otwani, learned counsel for the appellant would subniit that as per the police papers, the material and evidence available on record, employee Shankardas died on account of motor vehicle accident by unknown vehicle and, therefore, there was no casual connection between the death and employment of workman and learned Commissioner went wrong in awarding coinpensation to the claimanfs against the appellant. For this, reliance has been placed upon two judgments of Supreme Court in case of Shakuntala Chandrakant Shresthi -v- Prabhakar Maruti Garyali and another reported in (2007) 11 SCC 668 and in case of Malikarjuna^JSr. Hiremath -v- The Branch Manaser, the Oriental Insurance Co. Ltd. and another reported in (2009) 2 SCT 21. 8. Shri Saurabh Sharma, learned counsel for respondent No. 3 supported the contention raised by Shri Otwani. .^•l'T'^%. ^^ ^.-..^£••^^1^. (4 '"---i^ 9. Per contra, Shri Purohit, learned counsel appearing for respondents No. 1 and 2 vehemently argued that learned Commissioner has rightly passed the award against the appellant after taking into consideration every aspect of the matter and the same deserved to be upheld. 10. I have heard learned counsel for the parties, perused the award impugned and the record ofthe Court below. 11. Although the claimants'have pleaded in their petition that the deceased died on account of the injuries sustained while working on the mbcture machine but they could not substantiate this plea. In the same way, although the appellant has taken a plea in his reply that the deceased died on account of the injuries sustained in the road accident when he went outside the security zone to attend the call of nature but he could not substantiate this plea. On the contrary as per the statement of Patanglal Rathore examined by the appellant, when deceased was working on the road, one vehicle bearing registration No. CG 12 D 0782 carae from Transport Nagar and dashed plastic angle place by respondent No. 3/Nagar Palik Nigam and ran over the deceased. It was also admitted by the said witness that the deceased was employed by the appellant and was working on the site where accident occurred. 12. In view of above, following position of fact would eraerge:- One unknown vehicle dashed the deceased while deceased was working on the road side under the employment of the appellant and also during the course of employment as a result of which, he died. 13. Now the question falls for determination is whether there is any casual connection between the accident and the work done in the course of employment. 14. Section 3 Sub Seetion 1 of the Worknian Compensation Act, 1973 which is relevant for the purpose of this case reads as follows:- "3. Evnployer's liability for com.pensation.—(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 ofany injury which^does not result in fhe tgfal or pdrtial disqblenjLent of the workman for a period exceeding Ifthree] days; (b) in respect ofany [injury^ not resulting in 'death [qr permanent 'tofdl disablement], caused by] an accident which is directty attributedfo— (i) the workman hauing been at the Ume therefore under the influence ofdrink ofdrugs, br (ii) ^ the wilful ^disobedience pf the workman^to an order expressly given, pr to a rute ^expressly frqmed, ^for fhe^ purpose of securing ~ the safety of 'workman, 6r (iii) the wilful removal or disregardby ihe workmqn bfany^safety guqrd or qther device whichv he ^knew vfb have been proyided^for the purpose of securing the 'safety ofworkmeh 15. The Supreme Court in the case of Malikariuna (supra) has observed in para 9,15 and 18 as under:- a9. Under Section 3(1) it has to be established that there was some casual connection between the death ofthe workman and his employment. If the workman dies a natural death because of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or ifthe death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out ofthe employment and the employer would be liable. 15. An accident may lead to death but that an accident had taken place must be proved. Only because a death has takenplace in course ofemployment will not amount to accident. In other words, death must arise out ofaccident There is no presumption that an accident had occurred. << 18. In Mackinnon Mackenzie & Co. (P) Ltd. -v- Ibrahim. Mohd. Issak (1969(2) SCC 607), this Court held: 5. To come within the Act, the injury by accident must anse 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 ofthe service, which, unless engaged inthe duty owing 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)y The Supreme Court then after applying the aforesaid proposition of law in the facts of that case has held in para 20 as under:- a20. It is the spedfic case of the claimants that on 30-11-2000 the deceased who was driving the vehicle on the direction of the insured had gone to Gurugunta from Siraguppa. There he had gone to a temple and was sitting on the steps of the poind in the temple and he slipped andfell into the water and died due to drowining. This according to us is not sufficient in view of the legal principles delineated above to fasten liability on either the insurer or the insured. The High Court was not justified in holding that the present appellant was liable to pay compensation." 16. The Supreme Court in case of Shakyntala (supra) has observed in para 19 and 20 as under:- "19. Sufferance of heart disease amongst young persons is hot unknown. A disease ofheart may remam ~undetected. Aperson may suffer mild heart attack but he may not feeF any pain. THere musty thus, be some evidence tKat theemployment contributed to the deathof the deceased. It is required to be established that the death occurred during fhe course of employment 20. This Court in ESI Corpn.1 referred to, with approval, the decisiqn of^ord Wnght in Dqver Nawgation Cd. Ltd. v. Isabella Craiq3 wherein it was held: (All ER p. 563 G-H) "Nothing could be simpler than the words <arising out ofand in the course ofthe employment'. It is clear that there are two conditions to be fulfilled. What arises (in the course9 of the employment is to be distinguished from what arises cout of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment— that is, directly or indirectly engaged on what he is employed to do— gives a claim to compensation, unless it also arises out of the employment Hence the section imports a distinction which it does not define. The language is simple and unqualifted." The Suprenie Court then after applying the aforesaid proposition of law in the facts of that case has held in para 30 as under:- <(30. In Saurashtra Salt Mfg. Co.2 this Court held: (<It is well settled that when a workman is on a public road or a public place or on a public transpprt he is there as any other member ofthe public and is not there in the course of his ernployment unless the very nature of his employment makes it necessary fqr him to be there. A wdrkman is not in the course ofhis employment from the moment he leaves his home and is 6n his way to his work. He certainly is inthe course ofhis employment ifhe reaches the place of work or a point or ~an~area which comes within the theory of 'hotional extension, outside of which the employer is not liable to pay compensation for any 'accident happening to him.In the present case, even if it be assumed that the theory ofnotional extension extends up topoint D, the theory cdnnot be extended beyond it The moment a workmdn left point B in a boat or left point A but had not yet redched point B, he could not ~be saidto be in the course ofhis~employment and any accident happening to him on the joumey between these two p'oints could not be said t6 have'arisen out of and in the course of his employment Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the deceased workmen in this case were still in the course of their employment when they were crgssing the creek between'points A and B.~ The accident which took place when the bqat was almost qt point A ^78resulttng Jn the death of so many workmen was unfortunate, butfor that accident the appellant cannot bemade Uable/) 17. Supreme Court in case of Reeional Director, B.S.I. Corporation and another -v- Francis De Costa and another reported in (1996) 6 SCC 1, while dealing with para materia provision of Section 2(8) of Employees' State Insurance Act, 1948 has observed in para 5 to 7 and 13 as under:- "5. That the ftrst respondent has suffered a personal injury is not in dispute. The only dispute is whether the injury will amount to "employment injury" within the meaning ofSection 2(8), so as to enable the respondent to claim benefit under the Act The definition given to "employment injury" in sub-section (8) of Section 2 .<^c^. ^.'^llllgfe ^ envisages a personal injury to an employee caused by an accident or an occupational disease "arising out of and in the course ofhis employment". Therefore, the employee, in order to succeed in this case, will have to prove that the injury he had suffered arose out of and was in the course of his employment Both the conditions will haue to befulfilled before he could claim any benefit under the Act It does not appear that the injury suffered by the employee in the instant case arose in any way out ofhis employment. The injury was sustained while the employee was on his way to the factory where he was employed. The accident took place one kilometre away from the place of employment Unless it can be said that his employment began as soon as he set out for the factory from his home, it cannot be said that the injury was caused by an accident c{arising out of ... his employment". A road accident may happen anywhere at any time. But such accident cannot be said to have arisen out of employment, unless it can be shown that the employee was doing something incidental to his employment. 6. In ourjudgment, by using the words "arising out of ... his employment", the legislature gave a restrictive meaning to <<employment injury". The injury must be of such an extent as can be attributed to an accident or an occupational disease arising out of his employment <(0ut of', in this context, must mean caused by employment. Of course, the phrase <(out of has an exclusive meaning also. Ifa man is describedto be out ofhis employment, it means he is without a job. The other meaning of the phrase "out of" is "infiuenced, inspired, or caused by: out ofpity; out ofrespectfor him" (Webster's Comprehensive Dictionary — Intemational Edition — 1984). In the context of Section 2(8), the words "out of" indicate that the ^N 6 injury must be caused by an accident which had its origin in the employment A mere road accident^ while an employee is on his way to his place of employment cannot be said to have its origin in his employment in the factory. The phrase <cout of the employment" was construed in the case of South Maitland Railways Pty. Ltd. v. Jamesl where construing the phrase <{ouf of the employmenf\ Starke, J., held athe words 'out of' require that the injury had its origin in the employment". 7. Unless an employee can establish that the injury was caused or had its origin in the employment^ he cannot succeed in a claim based on Section 2(8) of the Act. The words "accident ... arising out of ... his employment" indicate that any accident which occurred while going to the place of employment or for the purpose of employment, cannot be said to have arisen out of his employment There is no causal connection between the accident and the employment. 13. The meaning of the words ain the course of his employment" appearing in Section 3(1) of the Workmen's Compensation Act, 1923, was examined by this Court in the case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja^. There, the appellant, a salt manufacturing ^L\ company, employed workmen both temporary and permanent. The salt-works was situated near a creek opposite to the town of Porbandar. The salt-works could be reached by at least two ways from the town, one an overland route nearly 6 to 7 miles long and the other via a creek which had to be crossed by a boat. In the evening of 12-6-1952, a boat carrying some of the workmen, capsized due to bad weather and overloading. As a result of this, some of the workmen were drowned. One of the questions that came up for consideration was whether the accident had takenplace in the course ofthe employment of the workers. S. Jafer Imam, J., speaking for the Court, held: "As a ru.ie, 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 joumey to and from theplace of employment being excluded^ After laying down the principle broadly, S. Jafer Imam, J., went on to observe that there might be some reasonable extension in both time and place to this principle. A workman might be regarded as in the course of his employment even though he had not reached or had left his employer's prermses in some special cases. The facts and circumstances of each case would have to be examined very carefully in order to determine whether the accident arose out ofand in the course of the employment of a workman, keeping in view at all times this theory of notional extension. But, examining thefacts of the case, in particular, after noticing the fact that the workman used a boat, which was also used as public ferry for which they had to pay the boatman's dues, S. Jafer Imam, J., observed: (<It is well settled that when a workman is on a public road or a public place or on a public transport he is there as any other member of the public and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment^if he reaches the place of work or a point or an N 9 area which comes within the theory ofnottonal extension, outside ofwhich the employer is not liable to pay compensation for any accident happening to him. In the present case, even if it be assumed that the theory of notional extension extends up to point D, the theory cannot be extended beyond it. The moment a workman left point B in a boat or left point A but had not yet reached point B, he could not be said to be in the course of his employment and any accident happening to him on thejoumey between these two points could not be saidto have arisen out ofand in the course of his employment Both the Commissioner for Workmen's Compensation and the High Court were in error in supposing that the ^ deceased workmen in this case were still in the course of their employment when they were crossing the creek between points A and B. The accident which took place when the boat was almost at point A resulting in the death of so many workmen was unfortunate, butfor that accident the appellant cannot be made liable." 18. The Supreme Court in case of State of Rajasthan -v- Ramorasad and another reported in (2001) 9 SCC 395 has beld in para 2 and 3 of its judgment as under:- ^2. The accident, it is stated^ tookplace on accqunt of lightning, The contention put forth pn behalj^ of fhe appellant is that the rmshap of death of Smt Gita dueto Hghtning is an act ofGodand, therefore, it is not liable to pdy compensdtion^ This contehtiqn hgs been rejecteSL nbt onty by the Commissiqner for Workmen>svCgmpensatioh but also by^ the learned Smgle Judgeinappeal and thereafter'by^ a Division Bench in dfurther appeai The view tdken is that the concept of the liahility under the Act is wide enouah t6 cover a case ofthis nature inasmuch as hqd taken place ansing as_q result gf accidentin thecourse ofemployment Itis, no doubt true that accident must hdve^a casual connection with the employment and arise out of it. If the workman is mjured as a result of naturdl force such as lightning though in itself hasno connection with emp^ot/ment, she can recover compensation bi shotuihg that such emplqyment exppsed her tg injury. Jn this case the fihding is'that the said Smt Gita was working on the site and would not hqve been exposed to^such hqzard of lightning striking her had^she not been working so". 3. The leamedcounsel for the appellant relied upon a decisipn of this Cquri in Mackfnnon Mfichemie & Cq. (P) Ltd.vv. Ibrahim Mahmmed Issakj-. The view taken by the courts belpw zs not incgnsistent with the vieiv taken b-y this Court. The appeal is therefore dismissed^ 19. In the light of dicta of the judgment of Supreme Court in above referred cases, following position of law would eraerge:- (i) To come within the Act, the injury by accident must arise both out of and in the course of employment. (ii) The words "in the course of employment" mean in the course of the work which the workman is employed to do anU which is incidental to it. (iii) The words "arising out of employment" are understood to mean "during the course of employment, injury has 10 ^ resulted from some risk incidental to the duties to the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered??. In other words, there must be a casual relationship between the accident and the employment. (iv) Expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to eraployment as such- to its nature, its conditions, its obligations and its incidents. If by any 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. (v) The onus of proving that the injury by accident arose out of and in the course of employment rests upon the applicant but these essentials may be inferred when the proved facts justify the inference. 20. In the present case, the deceased was employed by the appellant in road construction work and due to that, the deceased was working on the public road under the eniployment of appellant and the said road accident occurred during the course of employment. As the very nature of his employment makes it necessary for him to be there and, therefore, it can be iriferred safely that the death has resulted from the risk incidental to the duties to the service which unless engaged in the road work, it is reasonable to believe, the deceased would not otherwise have died and there is a casual connection between road accident on account of which deceased died and the employment. Therefore in the facfs and circumstances of the present case, it cannot be said that the claimants failed to establish casual