fa386.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 386 OF 2011 1. Navnath s/o Dhondiram Pokale age 52 years, occ. agril. 2. Satyabhama w/o Navnath Pokale age 47 years, occ. agril & household Both r/o Amalner (Bha) Tq. Patoda, Dist. Beed. .. APPELLANTS VERSUS 1. The Executive Director, Saswad Mali Sugar Factory Ltd. Malinagar, Tq. Malshiras Dist. Solapur. 2. The President, Saswad Mali Sugar Factory Ltd. Malinagar, Tq. Malshiras Dist. Solapur. 3. Vitthal Bhagwat Pawar age 42 years, occ. Contractor r/o Amalner (Bha) Tq. Patoda, Dist. Beed. .. RESPONDENTS Mr. S.S. Deshmukh, advocate for the appellants. Mr. G.K. Thigle (Naik), advocate for respondent nos. 1 and 2. Mr. M.U. Shelke, advocate for respondent no. 3. ===== fa386.11 2 CORAM : A.V. POTDAR DATE : 7 th DECEMBER, 2011 ORAL JUDGMENT : 1. Challenge raised in this appeal is the judgment and award in WMC No. 30/2009 dated 16-12-2010 passed by the Commissioner under Workmen’s Compensation Act / Civil Judge, Sr.Dn., Beed. 2. Heard. 3. Admit. Heard finally at this stage by consent of the parties. 4. Such of the facts as are necessary for just decision in this appeal can be summarised as under : . Appellants herein / parents of deceased Chandrakala filed application before the court below contending therein that respondent no. 3 is the Mukadam through whom they were engaged as sugarcane cutters by respondent nos. 1 and 2 who are running sugar factory in the name and style Saswad Mali Sugar Factory Ltd., Malinagar, Tq. Malshiras, Dist. Solapur. fa386.11 3 It is contended that in the morning of 25-1-2008, at about 7.00 am, deceased alongwith appellants and others had been to the agricultural field of one Mahadev Mali for sugar cutting. They worked between 7.00 am to 10.00 am and thereafter they took their meal. After the meal, deceased alongwith other ladies had been to the nearby field of one Dattu Kute for cleaning utensils and washing clothes on the well situate in the said field. All the ladies except the deceased returned to the field of Mahadev Mali. Deceased Chandrakala while washing the clothes slipped in the well and expired. It is contended that as no facility for washing of clothes and cleaning utensils is provided by respondent nos. 1 and 2, they had been to the nearby well for that purpose and, because of the negligent act of respondent nos. 1 and 2, Chandrakala expired. It is contended that deceased Chandrakala comes under the ambit of definition of ‘Workman’ and as the accident / death occurred during the course of employment, respondent nos. 1 and 2 are liable to pay compensation. It is contended that at the time of alleged accident age of deceased Chandrakala was 18 years and she was earning Rs.100/- to Rs. 150/- per day. Considering her age and earning capacity, applicants / appellants claim compensation to the tune of Rs. 4,52,760/- from respondent nos. 1 and 2. It appears that the claim was contested by respondent nos. 1 and 2. They denied relationship between deceased and fa386.11 4 respondent nos. 1 and 2 as employer and employee. According to them, services of deceased Chandrakala were not engaged by them and the list of their labours which they have provided to the insurance company does not disclose name of deceased. It is contended that the alleged accident took place in the well of Dattu Kute where deceased had been for washing clothes and utensils. Thus, there is no nexus between accidental death of deceased Chandrakala and the alleged employment. . Considering this aspect, they prayed for dismissal of the suit. Considering the pleadings of the parties, learned lower Court framed six issues including the issue as to whether there is relationship of employee and employer between deceased and respondents. Issue was also framed as to whether death of deceased was during the course of employment. Appellant no. 1 was examined on behalf of appellants before the lower Court. One Prakash Ransing was also examined on behalf of appellants in support of their claim. As against this, respondents have examined one Mahesh Girme working as Dy. Agricultural Officer in the employment of respondent nos. 1 and 2. One Pralhad Zende was examined who was working as Jr. Clerk in accounts department of respondent no. 3. Certain documents were also produced and exhibited during examination of these fa386.11 5 witnesses. Considering the evidence adduced before the trial Court, finding was recorded on issue no. 1 that appellants failed to establish the relationship of employer and employee between respondent nos. 1 and 2 and the deceased. In view of this finding, trial Court rejected the application filed by appellants which judgment and order is impugned in this appeal. 5. During the course of submissions across the bar, it is urged by learned counsel for the appellants that as the basic amenities for washing clothes and cleaning utensils were not provided by the employer, deceased had been to the adjoining field where she slipped and fell in the well resulting in her death. In the light of this, it is contended that accident occurred during the course of employment and hence the judgment and award impugned requires to be quashed and set aside. It is further urged on behalf of the appellants that as record produced before the lower Court about the list of laboures working under respondent nos. 1 and 2 was not signed by respondent no. 3, the same is created record and is not to be relied upon. Per contra, it is urged by learned counsel for respondent nos. 1 and 2 that the finding recorded by the lower Court that appellants failed to establish relationship of employer and employee between respondent nos. 1 and 2 fa386.11 6 and the deceased is well supported and well founded by documents tendered on record before the lower court and there is no perversity in that finding and hence the finding recorded by the court below shall not be disturbed. 6. Considering the submissions across the bar, points arising for consideration are as follows : 1 Whether the accident occurred during the course of employment ? 2 If the finding to be recorded in the negative on point no. 1, then what is the effect of it ? 7. Perusal of the evidence adduced on behalf of the appellants reveals that witnesses for appellants admitted in their cross examination that names of appellant nos. 1 and 2 and one Prakash Ransing appear on the pay roll maintained by the factory and that they are getting daily wages for their work on the basis of pay roll. They have also admitted that name of deceased Chandrakala does not appear on the pay roll maintained by respondent nos. 1 and 2. Apart from this, there is clear admission in the cross examination of appellant no. 1 and the witness examined on behalf of fa386.11 7 appellants that after sugarcane cutting work was over, the lady laboures had been to the well in the adjoining field to wash clothes and utensils. At that time, Chandrakala fell in the well and expired. They have further admitted in their cross examination that the well is not situated in the field where they had gone for labour work as sugarcane cutters. In the light of this admission, it is necessary to consider whether any nexus is established between accidental death of deceased Chandrakala and her alleged employment. Admittedly, washing of own clothes and utensils does not form part of employment of cutting sugarcane. In the light of this, it is necessary to advert to the observations of Full Bench judgment of Supreme Court in the matter of Regional Director, E.S.I. Corporation and another vs. Francis De Costa and another reported in 1996(2) Mh.L.J. 911. It is specifically observed by the Full Bench of the Supreme Court in this judgment that after considering the provisions of section 3(1) of the Workmen’s Compensation Act, 1923, unless nexus is established between accidental death and course of employment, neither the employer nor the insurance company is liable to pay any compensation for such accidental death. Further, it may be useful to advert to the observations of the Apex Court in the matter of Mallikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd and Anr. reported in AIR 2009 Supreme Court 2019 wherein it is observed in paragraph fa386.11 8 no. 9 thus : 9 Under Section 3(1) it has to be established that there was some causal connection between the death of the 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 if the 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 of the employment and the employer would be liable. . Further it is observed in paragraph no. 20 of the judgment thus : 20 It is the specific 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 pond in the temple and he slipped and fell into the water and died due to drowning. 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. 8. Turning to the case in hand, deceased had gone to wash utensils and clothes on the well in the adjoining field and while washing clothes due to slip she fell in the well. Thus, having regard to the observations of the Apex Court in the judgments cited supra, according to me, accidental death of fa386.11 9 Chandrakala due to fall in the well is nothing to do with the alleged employment. Thus, appellants failed to establish any nexus between death of deceased and the alleged course of employment. If it is so, it cannot be held that death of deceased is within the course of employment. Thus, finding on point no. 1 is to be recorded in the negative as a result of which it is to be held that respondent nos. 1 and 2 are not liable to pay any compensation as claimed. 9. Perusal of the judgment of the lower court reveals that the court had not touched this aspect but had touched the aspect that the appellants failed to establish relationship between deceased and respondent nos. 1 and 2 as employee and employer. At this juncture, it may be observed that the record produced by respondent nos. 1 and 2 nowhere discloses name of Chandrakala as a labour engaged by respondent nos. 1 and 2. So far as payment of Chandrakala is concerned, it is also admitted by appellant no. 1 – father of the deceased so also witness examined on behalf of the appellants that they are receiving wages of the work done by them on the basis of their names appearing in the list of labour and in the said list name of Chandrakala does not appear and neither she was paid wages. Thus, finding recorded to that effect by the court below that the appellants failed fa386.11 10 to establish relationship of employer and employee between respondent nos. 1 and 2 and the deceased appears to be well founded on the basis of evidence before the court below which need not be disturbed. In view of this, I do not find any merit in the appeal. In the substance, appeal fails and stands dismissed. ( A.V. POTDAR ) JUDGE dyb