IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPECIAL APPEAL CIVIL No. 22 of 1999 SMT. VIMLA DEVI & ORS. V/S ASSTT. ENG. & ANR. Mr. VINAY JAIN, for the appellant / petitioner Mr. RAVI BHANSALI, for the respondent Date of Order : 11.3.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- This is appeal by the unfortunate claimants. The circumstances giving rise to the appeal are, that deceased workman Bal Gopal Sharma was employed as Meter Reader with the respondent. The case of the claimants is, that on 21.2.88, while discharging duties as Meter Reader in village Bavalas he died, and therefore, the claim was lodged under Workman Compensation Act, for compensation alongwith interest and penalty. The employer contested the claim, whereupon the learned Commissioner recorded the evidence of the parties. During evidence, the appellant Vimla, the wife of the deceased deposed, that the deceased had gone to village Bavalas for meter reading, during the period 15.2.88 to 21.2.88, she has proved the documents proving the deceased’s discharging the job, and has then deposed, that on 21.2.88, when the deceased was on duty journey, he died. She has also proved the documents about payment of traveling allowance. On the side of the employer one Rajendra Choudhary was examined, who also admitted the deceased to be working as a Meter Reader, and the payment of T.A. bill, meter reading tour program etc. The meter reading binder has also been proved being Ex.2 to Ex.18, and bill for traveling on the fateful day has also been duly verified. In these circumstances, it was found, that the deceased was working during course of employment and while so working he died at about 4.30. Thus, it was found that he died in an accident arising out of and during course of employment. Then while deciding this precise issue No.2, about the deceased having died in an accident arising out of and during course of employment, it was found, that it was not disputed, that on the fateful day, he was on duty at village Bavalas, where he has gone for meter reading, and has died. Thus, the issue was decided in favour of the claimants. Accordingly, consequent upon decision of other issues also, an award of compensation of Rs.76,856/-, alongwith penalty, and interest, was passed by the learned Commissioner on 25.2.94. Against that award, an appeal was filed by the employer, before the learned Single Judge, which has been allowed by the impugned judgment dated 27.7.99. The learned 2 Single Judge found, that if any personal injury is caused to a workman, by accident, arising out of and during course of his employment, the employer shall be liable. Then the reference made by the employer to the judgment of Hon'ble the Supreme Court in Machinnon Mackeniie & Co. Pvt. Ltd. Vs. Ibrahim Mahommad Issak, reported in AIR 1970 SC 1906 was noticed, and it was noticed, that therein it has been held that there must be a causal relationship between the accident and the employment, i.e. if the accident is 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. Then burden of proof was considered, then on those principles, the merits were considered, in the manner, that the deceased died of asphyxia, because of suffocation, due to impaction of foreign body, in his air passage. Then it was considered, that there is no evidence on record, that there was very high pressure of the work on the deceased, so as to be required to work on Sunday, and then postmortem report proves the death, which was not the result of any accident arising out of employment. Noticing this, and other various contentions, it was found, that there is no evidence on record to show, that there was any strain on the mind of the deceased, so as to make a causal connection between the death and the employment. It was found that deceased went to village Bavalas for meter reading, and there is no 3 evidence, that the accident occurred arising out of and during course of employment, and that no causal relationship between the nature of his employment and death has been proved. With this finding, the appeal was allowed, and the award was set aside. Against that judgment, this appeal has been filed by the claimants, which had been dismissed by the Division Bench, vide order dated 25.8.99. Against that dismissal, the matter was carried to Hon'ble Supreme Court, being S.L.P. No. 5169/2000, from out of which, Civil Appeal No.1616/2000 arose, which was allowed by Hon'ble the Supreme Court, vide judgment dated 3.11.2000, and it was held, that appeal deserves to be heard, and disposed of on merits. With this, Hon'ble Supreme Court refrained from saying anything more, as it might not affect the case of either side. This is how the matter now comes up before us. We have gone through the impugned judgments, so also the record of the learned Commissioner, which is available with us. From the evidence of the claimant, being Smt. Vimla, it is clear, that she is a resident of Bhilwara, and deceased was employed as Meter Reader, and for the purpose of meter reading, he had to go to Bavalas for the period 15.2.88 to 21.2.88, and had accordingly gone, for which the 4 deceased was paid regular T.A., and while so on duty, he died on 21st. Obviously, so far as the claimant is concerned, she could only know, that her husband had gone on duty, and died there, before he could return from duty. In our view, in absence of anything else, even this, by itself, is sufficient to draw an inference, that the deceased died in an accident arising out of and during course of employment, unless the employer explains the circumstances, which may make the Court draw an otherwise inference. Then coming to the evidence of the employer, all that is tried to be explained is, that after working for week, there was a rest day, on which day he died. Then a photostat copy of the postmortem report has also been produced. Then the Head Constable had been examined about his having been informed about Bal Gopal, having suddenly died. This Head Constable had deposed, that on receipt of information he went to village Bavalas, and found the deceased lying on the main road. Then Rajendra Choudhary has been examined, who is Assistant Engineer, he has rather proved certain documents, which clearly show the deceased to be on duty. With this, a look at the statement of Bhanwar Lal, the Head Constable, shows, that the deceased was lying face down (मह क बल पड थ ). This in conjunction with the postmortem report shows, that the mouth of deceased was found full with soil and रत (dust and sand), which has been 5 described as foreign body, and this foreign body appears to have traveled in the air passage of the deceased, causing suffocation, asphyxia and death. In our view, from this totality of circumstances, looking to the date and time of the accident, it is reasonable to infer, that after discharging the duties, he was returning to his village, and en-route, he appears to have fallen down on the road (face down) in which process, the sand and dust, available on the way, filled in his mouth, and the particles thereof traveled to his air passage, causing suffocation, and asphyxia, as there doesn't appear to be any other plausible circumstance on the record. And if this were the situation, as is writ large, there is no escape from the conclusion, that the death was as a result of accident, arising out of and during course of employment. The main thrust of the judgment of the learned single judge is, there is no evidence on record to show, that there was any strain on the mind of the deceased, so as to make a causal connection between the death and the employment. In our view, this is not at all a relevant consideration, as here is a case, where the workman, after completing the week’s duty was returning home, and en-route fell down on road, face down, and died. This clearly shows the existence of causal connection between the accident and 6 the employment, even in absence of any stress or strain in the mind of the deceased. Consequently, the appeal is allowed. The impugned judgment of the learned Single Judge is set aside, and that of the learned Commissioner is restored. The parties are left to bear their own costs. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. /tarun/ 7