7~ IN THE HON'BLE HIGH COURT OF GHHATTISGARH AT BILASPUR M.A.fQNO. •7~\° /2009 ^^^^-. ^.^.^:l;;jf ^s&n APPELLANT Khomanlal Chandrakar, S/q. Late Biharilal Chandrakar, Aged about j6°years, R/o. Station i-applicant^ ^ ^ Chandrakar, Aged about 'Spye^rs^ R/o. ^fr'^t^^ oad' Mahasamund, Tahsil & District ..'•->T^^^^ Mahasamund (CG) ^. -.-„„—„„„„„ ^^^ ^ ^^ ^^-;y^" ^^ ~ ' ' 1!1.;; -^^ VERSUS RESPONDENTS ^ 1] Rajkumari Yadav, W/o. Late Bisauha^ Ram Applicants ^. Yadav, Aged about 40 years, \^2] Chandrika Yadav, D/o. Late Bisauha Yadav, Aged about 22 years, ^,(t- Both above R/o, village Birkoni, Police Station Mahasamund, Tahsil & Dlstrict Mahasamund (CG) APPEAL UNDER SECTION 30 OF WORKMEN'S COMPENSATION ACT, 1923 Claim in appeal valued at Rs. 81,336/- ^J) HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal (C.LNo.710 of 2009 Khomanlal Chandrakar versus Rajkumari Yadav and another QRDER ^:./ Postfor 1-10-2010 Sd/- Prashant Kumar Mishra Judge ^-^^s HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal (C.) No.710 of 2009 Appellant versus Respondents Khomanlal Chandrakar Rajkumari Yadav and another Present: Shri Manoj Paranjpe, counsel for the appellant. Shri N.K.Vyas, counsel for the respondents. Miscellaneous Appeal under Section 30 of the Workmen's Compensation Act, 1923 ORDER (Passed on ol^October, 2010) This is an appeal under Section 30 of the Workmen's Compensation Act, 1923 (henceforth 'the Act') by the employer challenging the award of compensation of Rs.81,336/- in favourof the respondents/claimants. 2. The claimants are the widow and daughter of Late Bisauha Ram Yadav, who died after receiving electric shock on 21-6-2002. It was stated by the claimants that the deceased, aged about 45 years, was employed in the agricultural field of the appellant as watchman and agricultural labourer and was receiving Rs.1,800/- as monthly salary. On 21-6-2002, he was working in the agricultural field and received electric shock from the electrical pump, which was left open because of the negligence of the employer/appellant. A report was lodged with the Mahasamund Policeon which offence •:^^, ^SiSSt^ ^ .'H%^:B^ ;. ^? ^"•: ^ under Section 304(1) of the Indian Penal Code was registered against the appellant. They claimed compensation of Rs.1,52,4967-. 3 . The appellant, in his reply, denied the averments made in the claim petition and stated that the deceased was never employed in his agricultural field and that he died on account of his own mistake. It was also stated that maintenance of the electric connection was to be made by the Electricity Board, however, in the absence of the Sub-Engineer of the Electricity Board, the claim petition is not maintainable. 4. The Commissioner for Workmen's Compensation, Labour Court, Raipur (henceforth 'the Commissioner') found that the deceased was employed with the appellant and the accident took place in course of employment. It was also held that the claimants are the dependents and the Sub-Engineer of the Electricity Board is not a necessary party and the claim petition does not suffer from non-joinderof necessary party. 5. The present appeal has been admitted on the following substantial questions of law: "(1) Whether the Tribunal was justified in holding that the deceased was employed under the appellant? (2) If answer to the question No.1 above is in affirmative, whether the claimants have established nexus between the death of the deceased and his employment under the appellant so as to establish the fact that the deceased died while working in course of employment?" ^' 6. The first substantial question of law is as to whether the deceased was under employment with the appellant. From the record, it appears that during pendency of the claim petition, an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 was preferred by the appellant forjoining the Sub- Engineer of the Electricity Board. The said Sub-Engineer has also filed his reply to the application under Order 1 Rule 10 ofthe Code of Civil Procedure, 1908. Apart from the assertion made by the claimants in their claim petition and the statements and the denial made by the appellant in his reply regarding the employment of the deceased, the said reply filed by the Sub-Engineer is also on record. It was stated in the said reply that the deceased was in fact employed by the appellant as watchman and agricultural labourer and he was the employer. The deceased was working under the orders of the appellant at the time of and in course of employment. It was stated that the deceased was neither employed nor was acting under the instructions of the employees of the Electricity Board. It was also stated that the appellant has been provided one electricity supply connection from the low-power line and that it is the duty of the consumer to erect and lay the line from the pole to his place and the Electricity Board was never informed about any defect about the line or in the electric pump itself. The claimant Rajkumari Yadav hasstated that her husband was working with the appellant as watchman and agricultural labourer in his agricultural field. Her husband died when he was lifting the pole on which electric line was supported, as the said pole / had fallen on the ground. She has proved the certified copies of the p%Ksss ^siisi^ii ^^ ff a9 ^I % F.1.R., the final report and the post mortem report. In the cross- examination of Rajkumari Yadav, the claimants' witness denied the suggestion that her husband was only a watchman meaning thereby that he was not asked to do any work in relation to the electric pump. She has also denied that her husband was not working with the appellant. She has also denied the suggestion that her husband was not doing any other work except the job of watchman. Another witness Bhuwanlal has been examined by the claimants. He has stated that the deceased was working in the agricultural field of the appellant and was receiving monthly salary of Rs.1,800/-. This witness is also a labourer in the village and according to him, he rushed tothe spot when he received the news of the accident as he was in the village on that day. He has also stated that he used to meet Bisauha Ram every day. 7. The appellant/employer, in his statement, has admitted that he has obtained electric supply connection and the said connection has been provided by carrying the electric line on wooden poles. He has also admitted that the wooden poles have fallen because of strong winds and water on 21-6-2002. Though he has denied that he had instructed Bisauha Ram to lift the wooden pole and fix it yet he has admitted that he had informed the Electricity Board for repairing of the electric line. In the F.1.R. (Ex.P-1) and the final report (Ex.P-2) registered against the appellant, it is mentioned that the deceased was working in the agricultural field ofthe appellant and while trying to re-fix the wooden pole, he came into contact with live electrical wire and died. The criminal case has been registered against the appellant. 8. From the above referred evidence available on record, it would appear that the statements of the claimants' witnesses have not been disproved by the appellant by examining any independent witness. The fact of death of the deceased while working in the agricultural field is supported by the F.I.R. and the charge-sheet filed against the appellant after investigation by the Mahasamund Police. In view of the evidence on record, the finding recorded by the Commissioner that the deceased was employed in the agricultural field of the appellant is in accordance with the evidence and is not perverse. The first substantial question of law is, thus, decided against the appellant. 9. The second substantial question of law is as to whether the death of the deceased has taken place, 'arising out of and in the course ofthe employment'. Learned .counsel for the appellant has submitted that even if the deceased was working as a watchman, the death has not taken place arising out of and in the course of employment and thus the appellant would not be liable to make payment of compensation and the claim petition should have been dismissed as not maintainable. 10. In the matter of Mackinnon Mackenzie and Co. Private Ltd. vs. Ibrahim Mahommad Issak, AIR 1970 SC 1906, the Hon'ble / Supreme Court has held in paragraph 5 of the report thus: "5. 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 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. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to 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 imprudent act. .............." 11. In the matter of Mallikarjuna G. Hiremath vs. Branch Manager, Oriental Insurance Co. Ltd. and another, 2009 AIR SCW 1688, the Hon'ble Supreme Court has held in paragraphs 12, 14 and 17 of the report thus: "12. This Court in ES/ Corpn. v.Francis De Costa (1996 (6) SCC 1) referred to, with approval, the decision of Lord i Wright in Dover Navigation Co. Ltd. v. Isabella Craig (1940 AC190) wherein it was held (All ER p. 563): -"^'\ l1'"',"' ."^^;"... ^ "'- -^m s "Nothing could be simpler than the words 'arising out of and in the course of the employment'. It is clear that there are two conditions to be fulfilled. What arises 'in the course' of the employment is to be distinguished from what arises 'out 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 unqualified." 14. There are a large number of English and American decisions, some of which have been taken note of in ES/ Corpn.'s case (supra) in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 oftheAct. The principles are: (1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment. (2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. (3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the factof each case. 17. In G.M., B.E.S.T. Undertaking v. Agnes (1964 (3) SCR 930) referring to the decision of the Court ofAppeal in Jenkins v. Elder Dempster Lines Ltd. (1953 (2) All ER ..^^^^ ..^-^ 'r- ;'i^ i ^v-' -^ . :^ ,ff ^NNNIIWNI^^ 8 1133) this Court opined therein that a wider test, namely, that there should be a nexus between accident and employment was laid down. It also followed the decision of this Court in Saurashtra Salt Mfg. Co. v. Bai Valu Raja (AIR 1958 SC 881)" . In Mackinnon Mackenzie and Co. Private Ltd. vs. Ibrahim Mahommad Issak (supra), the hlon'bte Supreme Court has held that in the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of the employment as well as in the course of the employment, however, this does not mean that a workman, who comes to Court for relief must necessarily prove it by direct evidence. It has been held further therein that the Commissioner must not surmise, conjecture or guess; he may draw an inference from the proved facts so long as it is a legitimate inference. 12. Keeping in view the principles laid down by the Hon'ble Supreme Court in the above referred judgment, this Court shall now examine the nature of job which the deceased was carrying or engaged and the nature of accident suffered by him so as to draw an inference as to whether the death had arisen out of and in the course of the employment. Admittedly, the appellant had obtained an electrical connection for supply of electrical energy to the electric pump, which was installed in his agricultural field. While deciding the first substantial question of law, this Court has found that the deceased was employed as a watchman and agricultural labourer in the //agricultural field ofthe appellant. The appellant has admittedin his ^^ 4f\ cross-examination that because of strong winds/storm and rains, the wooden poles on which the electrical supply line was resting had fallen and this was informed to the Electricity Board. Once it has been established that the deceased was working as a watchman and agricultural labourer in the field belonging to the appellant, he was supposed to take care of the agricultural field and the instruments which are installed/fitted in the field for smooth operation of the agricultural work and for carrying out the work of watchman, which may include clearing the field so as to secure it from any danger or accident. If the electrical lines were live and supply of electrical energy was continuing, it becomes the duty of the watchman to clear the field so as to avoid any accident. It is another thing that while doing so, he himself suffered an accident. Thus, there is casual connection between the injury/accident and the employment of the deceased in the agricultural field of the appellant. This Court would, thus, hold that the deceased died in the course of the employment and it arose out of the employment for which he was engaged. The second substantial question of law is, thus, answered against the appellant. 13. Learned counsel for the appellant has argued that the contents of the F.1. R. have not been proved and mere production or marking of the exhibit does not amount to proof of the document. On the other hand, learned counsel for the respondents, placing reliance on Anil Tiwari and others vs. Saheb Singh and others, "2000 (1) MPLJ 59, has argued that strict proof of documents like w:l®@®^t%l ^" ,,,^'/-^ &^ll w 10 F.I.R., inquest, post mortem report etc. are not required in claim cases. He has referred to Section 23 of the Act. Section 25 of the Act makes provision regarding method of recording evidence. It provides that the Commissioner shall make a brief memorandum of the substance of evidence of every witness as the examination of the witness proceeds. Thus, the method of recording of evidence and powers and procedure of the Commissioner provided under Section 23 of the Act would make the proceedings before the Commissioner, in the nature of summary enquiry wherein strict rules of the Evidence Act are not applicable. Thus, the certified copies of the F.1.R., the final report and the post mortem report can be read in evidence in proceeding before the '^ Commissioner. 14. In the result, the miscellaneous appeal fails and is hereby dismissed. Sd/- Prashant Kumar Mishra Judge